Back to School OMA/FOIA Update: Public Access Counselor (PAC) Decisions this Summer

by Franczek Radelet P.C.
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The summer is nearly behind us, and it has been a busy summer for the Public Access Counselor (PAC) office of the Illinois Attorney General, which issued five binding decisions since May on Open Meetings Act (OMA) and Freedom of Information Act (FOIA) topics. Although these decisions do not have the force of court decisions, they provide important guidance to public bodies on the current state of the OMA and FOIA laws. For a review of the PAC decisions you may have missed over the summer, see the summaries of each of the PAC’s decisions below.

PAC 14-003: According to the PAC, the St. Clair Township Board did not violate the OMA when it reclassified certain action items on the originally published agenda as topics for discussion by the Board in executive session less than 48 hours before the meeting. Although the OMA requires that an agenda posted 48 hours in advance of a meeting set forth information about the subject of any final action to be taken at a meeting, there is no obligation for a public body to actually take final action on a matter simply because it is an action item on an agenda. Nor is there any requirement that notice be given of topics to be considered in closed session. Thus, the Board could have postponed action on the items and merely discussed the issues in executive session without amending the agenda. Its amendment thus provided greater transparency for members of the public than the OMA requires, and did not violate the OMA.

PAC 14-004: The PAC found that St. Clair County improperly partially denied a request for copies of settlement agreements. Neither confidentiality agreements between the parties nor the fact that the allegations leading to the agreements were sexual harassment allegations justified withholding the documents. The confidentiality provisions of the agreements did not trump the provision of FOIA specifically requiring release of settlement agreements, and so were not enforceable. Moreover, although the agreements dealt with sexual harassment allegations, the agreements did not describe the nature of the conduct alleged to have occurred, and the public body did not merely redact the names of the alleged victims of sexual harassment but rather withheld the entire agreements. The public body thus did not meet its burden of showing that the agreements were exempt as personal information.

PAC 14-005: The PAC held that the Illinois Department of the Lottery was required to release financial terms in contracts and subcontracts with its private lottery manager relating to marketing and advertising services completed by the contractor and subcontractors for the lottery. The records related to governmental functions delegated to the private companies; specifically, marketing and advertising services related to operating the lottery to generate public funds, primarily for the benefit of the public schools. Although the contracts contained financial terms, those terms were not “confidential data” protected from disclosure under the Lottery Law and, even if they were, the provision of the FOIA requiring release of information related to the receipt and use of public funds were passed after the Lottery Law and so would supersede that protection. Finally, the fact that the parties had confidentiality agreements could not protect the records from release. According to the PAC, to the extent confidentiality agreements in the contracts purport to prevent release of information generally disclosable under FOIA, those contracts are unenforceable as a matter of law.

PAC 14-006: According to the PAC, records related to funds collected for a homecoming dance at Chicago State University were records of a public body under FOIA even though the funds were collected by a student group (the Student Government Association), which is not a public body. The University is a public body, and there was no question that the University (through its Director of Student Activities) received copies of the records in question. The only open question, then, was whether the records pertained to the transaction of public business, and the PAC found that they did. Specifically, because all student organization funds must be held in an account by a University agency, records relating to the funds that are deposited by a student organization into that account pertain to the transaction of public business.

PAC 14-007: The PAC determined that Chicago Public Schools (CPS) violated the FOIA in its response to a request for all records showing proceeds from tickets sold at CPS athletic events during the 2013-2014 school year. First, CPS did not issue a response or extension within five business days of receipt of the FOIA request, which violated the Act. Second, CPS did not conduct a sufficient search for records. CPS only searched its finance and sports administration offices, but was required to search other places that it admitted might house such records, such as its internal accounts system and its individual schools. Third, CPS could not assert that the request was unduly burdensome, because it did not timely respond to the FOIA request. The PAC’s decision is an important reminder that if a public body fails to respond to a FOIA request within the timeframes of the FOIA, it cannot treat a request as unduly burdensome.

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Franczek Radelet P.C.
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