Illinois Court Opinion Clarifies Key FOIA Provisions

by Franczek Radelet P.C.
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Recently, the Illinois Appellate Court clarified three key provisions of the Illinois Freedom of Information Act: the “predecisional” or “deliberative process” exemption; the exemption for unwarranted invasion of personal privacy; and the exemption applying to school student records. The case provides good examples for when these exemptions apply to records created and obtained in an internal investigation, including statements from witnesses such as students.

The case, State Journal-Register v. University of Illinois Springfield, arose out of a 2010 FOIA request by a central Illinois newspaper, the State Journal-Register, which sought evidence of allegedly improper conduct by three college coaches. The newspaper also sought inappropriate communications between any students and one of the coaches. The university produced a number of documents but withheld others based on the predecisional/deliberative process, personal information, and student records exemptions to FOIA. The Journal-Register published a number of articles detailing the alleged incidents and impropriety, presumably based on information it received from the university in response to the FOIA request.

The Journal-Register then filed a lawsuit in state court seeking access to the records that had been withheld. A trial court and appellate court opinion followed, with the following takeaways for these key FOIA provisions:

Predecisional or Deliberative Process Records

The most important point the court clarified regarding the predecisional/deliberative process exemption is that, although an entire document relied on by a public body in making a decision is exempt before the decision is made, once the decision is made the “purely factual” material is not protected by the exemption unless it is “inextricably intertwined” with predecisional and deliberative discussions.

Applying this rule, the court found that email strings containing staff opinions and general communications about the investigation and the scheduling of meetings were “clearly” protected, because they were collected to help the university reach a decision about whether misconduct occurred and, if it did, how to address it. Similarly, portions of a letter from an alleged victim regarding how they wished to proceed with resolving their legal claims against the university was exempt, as the university “undoubtedly” relied on that information in formulating a plan or policy for settling potential litigation. Once the decision was made, however, documents containing witness statements were not exempt under the predecisional exemption, even though the university relied on the documents prior to making a decision. The factual accounts of events by witnesses could “stand alone” and so were not “inextricably intertwined” with the predecisional process.

Personal Privacy

The court made clear that the personal privacy exemption is quite broad. For instance, the court noted that information in a personnel file is only subject to disclosure under FOIA if it relates to the public duties of the employee; otherwise, it is personal information protected by the personal privacy exemption. Notably, the court found that documents reflecting a public employee’s compensation for accrued sick and vacation time, employee status, and other related documents were exempt personal information. Such information does not bear on the alleged misdeeds or public duties of the coaches and is of a highly personal nature, the court said.

The court also clarified that where personal information is at issue, it will only be released if the rights of the public to the information outweigh the victim’s right to privacy. The court found that witness statements could not be produced without improperly invading the students’ rights to privacy. Importantly, the public interest in the information in the statements was limited because a significant amount of information had already been released, and it appeared that the Journal-Register was only seeking to find out the “nasty dirty stuff” that allegedly took place. In contrast, at least one victim had filed a letter with the court pleading to have his or her privacy protected.

The court also made clear that in some cases redacting an individual’s name would not be enough to protect the privacy of the individual. For example, there was a small number of students on the relevant sports teams involved in the incident, so redacting student names from witness statements would not protect those students’ identities.

Records indicating actions and observations made by the softball coaches preceding the alleged incident, however, could be produced and were not exempt personal information. As the court explained, the public has strong interest in the decisions of the university or its coaches that led to the behaviors preceding the sexual misconduct. That information does not affect the personal privacy rights of the students, but instead reflects on the decisions of the university and its coaches.

Finally, with respect to settlement agreements, the court determined that a student’s name could be redacted from such documents.

Student Records

The court made clear that the mere fact that a document is created with information about a student or even names a student is not enough to make it an educational record exempt from FOIA. For example:

  • The court found that a student complaint was not subject to FERPA. It did not relate to the student; rather, it expressed the opinion of a student about actions of public employees and included no identifying characteristics once the student’s name was redacted.
  • The court also found that the coaches’ witness statement were not subject to FERPA because they reflected on the actions and behaviors of the coaches, not the students.

Because the court found that none of the relevant documents were educational records covered by FERPA, it did not address the issue of whether FERPA specifically prohibits schools from releasing student records, thus making student records exempt under FOIA. As we reported in an earlier FR Alert, a federal judge in Chicago in 2011 found that FERPA did not protect student information from disclosure under FOIA. A later decision of the Seventh Circuit Court of Appeals vacated that earlier decision and included helpful dicta supporting educational institutions continued reliance on FERPA to withhold private student-related documents under FOIA. But the question is still an open question under Illinois law. Notably, the case did not deal with the Illinois School Student Records Act (ISSRA), an Illinois law that is similar to FERPA and that applies to primary and secondary Illinois school districts. There is no question that student records as defined by ISSRA are exempt under FOIA.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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