Illinois Appellate Court Decision Clarifies Waiver Of The FOIA Predecisional Materials Exemption

by Franczek Radelet P.C.
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The Appellate Court of Illinois (First District) recently issued an opinion clarifying how a public body can waive the Freedom of Information Act protection for predecisional records. In Dumke v. Chicago, the court held that then-Mayor Richard Daley’s repeated references to a consultant’s report were sufficient to waive the exemption in response to a FOIA request issued to the Chicago Police Department, even though the Mayor is not technically the “head of” the Police Department.

In Dumke, a citizen made a FOIA request to the Chicago Police Department for a copy of a final report of a study conducted by consultants for the City of Chicago regarding Police Department operations. The Police Department denied the FOIA request, asserting first that the record was exempt under Section 7(1)(f) of the FOIA, which exempts from disclosure “[p]reliminary drafts, notes, recommendations, memoranda and other records in which opinions are expressed, or policies or actions are formulated, except [when a] record is publicly cited and identified by the head of the public body.” 5 ILCS 140/7(1)(f). The FOIA defines “head of the public body” to mean “the president, mayor, chairman, presiding officer, director, superintendent, manager, supervisor or individual otherwise holding primary executive and administrative authority for the public body, or such person’s duly authorized agent.” 5 ILCS 140/2(e).

Although the Mayor had cited the report publicly, the Police Department maintained that the Mayor was not the “head of the public body” and so his citation to the report could not waive the exemption for predecisional records. In the alternative, the City argued that the citations by the Mayor were not sufficient to waive the privilege. The Illinois Attorney General’s Public Access Counselor and a state trial court agreed with the Police Department.

On appeal, however, the Illinois Appellate Court reversed and found in favor of the requester. First, the court found that the Mayor was a “head of the public body,” even though the definition of that term suggests that the Superintendent of the Police Department would be the Police Department’s head. Although the Court’s reasoning is not completely clear, it appears to be based on the fact that the Mayor is also the head of the City, and that the Police Department is a subsidiary of the City. It is unclear whether the court’s reasoning would apply in other situations. For instance, it is unclear whether it would apply where the head of one public body cites a report, but a FOIA request is issued to a second, unrelated public body. For example, if two school districts work together on a project and obtain a report from a consultant, and the superintendent of District 1 cites the report publicly, is the exemption waived with respect to a FOIA request to District 2?

Second, the court found that the Mayor’s citations to the report were sufficient to waive the protections for predecisional materials under Section 7(1)(f). The court pointed to the fact that the Mayor repeatedly referred to the report in a press conference, identifying the nature of the report and its purpose, identifying and indeed personally thanking the key players behind and authors of the report, and citing the report as support for the police reorganization plan he was announcing at the press conference. In arriving at its decision, the court also found persuasive that the press conference was later posted on the Mayor’s YouTube channel and that a press release was issued with many of the same details as provided in the press conference. The court distinguished an earlier Appellate Court case, Harwood v. McDonough, in which a public body was allowed to withhold a consultant’s report even though the Governor had previously cited to an executive summary of the report and to charts recapitulating the information contained in the executive summary. The court noted that in Harwood, unlike in the Dumke case, the head of the public body never cited or identified publicly the report, rather citing only to the executive summary of the report.

The court’s decision in Dumke is an important reminder to public bodies to think carefully about what records high-level officials in the public body publicly identify or cite. If a high-level official from a public body, or its subsidiary or parent entity, wishes to cite publicly to information from the record, the public body should create an executive summary and explicitly label it “Executive Summary,” and only allow citations to that summary, not the underlying record. The executive summary should include information that the public body is willing to release to the public. If the executive summary includes data or other information from the report, the public body should paraphrase language and summarize data from the underlying record.

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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