The Attorney General’s Public Access Counselor (PAC) closed out the year by issuing two binding opinions. The following is a summary of key points from the opinions of which public bodies should be aware. As always, a court of law may not reach the same conclusions as the PAC on even identical issues, so public bodies should consult legal counsel when faced with issues such as those addressed in these cases.

Atty. Gen. Binding Op. 13-108 – In this opinion involving a request for records concerning a sidewalk/curb improvement project received by the City of Martinsville, the PAC addressed whether the documents, held by a third party contractor that performed the work on behalf of a public body, are subject to FOIA. Section 7(2) of the FOIA provides that a public record that is “in the possession of a party with whom [a public body] has contracted to perform a governmental function on behalf of the public body, and that directly relates to the governmental function and is not otherwise exempt under [the FOIA],” is “considered a public record of the public body, for purposes of [the FOIA].” In the case, the PAC held that a private engineering firm hired by a public body to plan and oversee a sidewalk/curb improvement project is a party with whom the public body has contracted to perform a governmental function on behalf of the public body. Records held by the engineering firm and directly related to that function are public records under the FOIA. Importantly, because the records of the contractor were deemed to be records of the public body, the City could not charge for fees related to the costs it incurred to obtain the records in order to respond to the FOIA request. Thus, the City could not pass on to the requester $1,136 worth of fees that the private contractor charged the City to produce records in response to the FOIA request.

Atty. Gen. Binding Op. 13-017 – In this opinion involving the City of Berwyn, the PAC held that a public body may not refuse to disclose public records simply because the records may be obtained through discovery or a subpoena in a civil or criminal proceeding. In this case, a citizen sought a copy of a police report. During the Request for Review process before the PAC, the City noted that it was “apparent” that the citizen was being represented by a legal advocacy organization and “respectfully request[ed] that they utilize[] the legal mechanisms of discovery and subpoenas to satisfy their request.” The PAC held that the availability of records through the judicial discovery process does not impact a person’s separate and distinct right to access public records under FOIA, because there is no specific exemption exempting records that may be obtained through discovery. Notably, although the PAC relied on certain federal court cases supporting its conclusion, it did not address contrary case law from other jurisdictions.

In this opinion, the PAC also reminded public bodies that they carry a heavy burden in proving that an exemption applies under FOIA. The public body must show by “clear and convincing evidence” that an exemption applies to overcome the presumption that a record must be made public under FOIA.