In three separate opinions rendered in November, the Public Access Counselor (PAC) of the Illinois Attorney General provided guidance regarding the Freedom of Information Act (FOIA) on the definition of “unduly burdensome,” addressed the right to privacy of a former elected official, and provided further clarity on what does not constitute a public record.
Unduly Burdensome
The first opinion involved the City of Collinsville’s denial of a request asking for emails between a city official and a private consulting firm. The City, citing to the fact that there were more than 50 emails and attachments, found the request to be unduly burdensome and asked the requestor to narrow the request. The PAC confirmed that a public body’s response that a FOIA request is unduly burdensome constitutes a denial under FOIA that can be appealed to the PAC for review.
When considering the facts of the case and citing to the balancing test employed by Illinois courts when reviewing a claim that a request is burdensome, the PAC concluded that while retrieving approximately 174 pages of digital emails might impose a burden on the City of Collinsville, such a burden did not outweigh the “...public interest in disclosure of the public records.” The PAC found that there is significant public interest in the emails between a municipality and a private firm that is actively involved in multiple municipal redevelopment projects. That, coupled with the fact that the City had not adequately shown with specificity how the process of retrieving and reviewing the documents would be a significant burden on its operations, resulted in the PAC concluding that the City had not established that the burden outweighed the public interest in disclosure. Therefore, in a binding decision, the PAC ordered the City to release the records requested.
A public entity seeking to use the unduly burdensome grounds to deny a FOIA request must understand that a response to a requestor asking her to narrow the request will be considered a denial by the PAC and in its response, a public body must provide the requestor with specific information on why the request is burdensome.
Personal Information
In its second opinion, the PAC reviewed the Village of Downers Grove’s denial of five FOIA requests that all sought copies of the police records concerning former State Representative Ronald Sandack. Representative Sandack resigned from the Illinois House of Representatives earlier this year after he indicated that he was a victim of an online extortion scheme. While the Village had released the incident report to various news outlets requesting the documents, the Village had heavily redacted most of the content of the report and declined to release other documents. The Village later issued a supplemental response, disclosing some additional portions of the records and providing new documents but still withholding and redacting additional records.
In this second binding opinion, the PAC focused on the personal privacy exemptions contained in Sections 7(1)(b) (private information),(c)(personal privacy) and (d)(vii)(pending law enforcement proceeding) of the FOIA.
The most significant part of the PAC’s decision focused on whether the release of personal information contained in the police records would be an unwarranted invasion of personal privacy. When reviewing Mr. Sandack’s statement and the records he provided, the PAC noted that a public official has a diminished right to privacy which, while not dispositive, is a factor in determining the nature of privacy interest, along with the nature of the information sought, the public interest in disclosure, the degree of invasion of personal privacy, and the availability of alternative means of obtaining the requested information. While finding that many of these factors weighed in favor of release, ultimately, the PAC concluded that Mr. Sandack’s statement contained highly personal information unrelated to his public duties, the release of which would warrant an invasion of personal privacy, even for a public official who had resigned in response to the incident in question. The PAC did, however, allow for the release of the amounts of money involved in the extortion.
The PAC also found the identity of the suspects, who had not been arrested or charged, were exempt since their right to privacy outweighed any public interest in disclosure.
While some of this is specific to a police investigation, the decision provides ample insight into what grounds a public agency may have to withhold private information of a public official from release but also when release will be required.
Records Held by an Independent Contractor
Finally, on November 28th, the PAC issued a response to a request for review to the denial of a FOIA request by Community Consolidated School District 62. The requestor, a former teacher, sought documents related to her 403(b) investment account. First, the PAC found that the District had properly denied the request after conducting a reasonable search and finding no responsive documents.
The key takeaway from the opinion is the second part of the PAC’s decision where it found that the District was not responsible for providing documents that were not in the possession of the District, but may have been in the possession of the 403(b) provider. Section 7(2) of the FOIA provides that a public record that is not in the possession of a public body, but is in the possession of a party with whom the public body has contracted to perform a governmental function and related to the governmental function is subject to release under FOIA unless an exemption applies. 5 ILCS 140/7(2).
Here the PAC found that the 403(b) provider, which provided investment services for District employees who chose to utilize the services, was not performing a governmental function. The PAC agreed with the argument set forth by our law firm that “selling retirement investment products and managing retirement assets are not functions typically performed by a school district.” Therefore, Section 7(2) did not apply and any records solely in the possession of the 403(b) provider were not public records. The PAC identified a crucial distinction between the documents of vendors contracted to provide services otherwise performed by the district itself, such as instruction or transportation, whose documents would likely be subject to FOIA, and private companies that provide services that a district would otherwise not perform.
These three opinions provide helpful guidance on how districts should approach FOIA requests.
