by John E. Motylinski (Spring 2018)

While the courts are important in defining the meaning of the Freedom of Information Act (“FOIA”) (5 ILCS 140/1 et seq.) and the Open Meetings Act (“OMA”) (5 ILCS 120/1 et seq.), the Illinois Attorney General’s Public Access Counselor (“PAC”) is also a major force in interpreting these statutes. Indeed, just like the courts, the PAC issues binding written opinions on proper compliance with FOIA and OMA that must be heeded. The three most informative and significant PAC decisions of 2017 are analyzed below to help fire protection districts keep abreast of their obligations under these sunshine laws.

FOIA: Taylorville Sanitary District

The Taylorville Sanitary District matter revolves around whether redacting financial information on public records is proper. The District received a FOIA request for copies of contracts with its wastewater treatment vendor. The District disclosed these documents, but redacted the substantive financial terms of its contracts, such as the amounts billed to the District, annual budgets submitted by the vendor, and invoices. However, the District did not provide the FOIA requestor a reason why it was redacting those materials. Accordingly, the requester filed a request for review with the PAC, seeking unredacted copies of the documents.

On review, the PAC found that the District violated FOIA by not explaining the factual basis for redacting the records. However, the PAC considered the District’s argument that the vendor financial records were exempt from disclosure under Section 7(1)(g) of FOIA – the “trade secrets” exception. Under this exception, trade secrets or confidential business information need not be disclosed when they are obtained from a third party whose business would be harmed if the information were to be released.

The District tried to argue that there was a confidentiality agreement in place between the vendor and the District that covered the pricing information in the sought-after records, and therefore the trade secrets exemption should apply. The PAC disagreed, finding that the confidentiality clause was trumped by FOIA. The information at issue directly related to the use of public funds by the District, and Illinois public policy has long recognized these types of records should be freely available for public inspection. Therefore, the trade secrets exemption did not apply, and the District was ordered to turn over unredacted records.

In summary, even though disclosing vendor contracts may be uncomfortable at times, the PAC has made clear that these types of records must be disclosed in full where no other exemption applies.

FOIA: McLean County

The McLean County matter answers the question of whether FOIA requests about the existence of other FOIA requests are proper. In September 2017, the Bloomington Normal News submitted a FOIA request to McLean County for all FOIA requests received within the last eight weeks and the County’s responses. McLean County denied the request, stating that the request did “not meet the purpose and intent of FOIA.” The denial was appealed to the PAC, which held that McLean County must produce the requested records.

At the outset, the PAC noted that the County did not cite a specific exemption under FOIA for not complying with the request. Furthermore, the County did not contend that the responsive documents were not public records subject to FOIA. Because all public records are presumed to be subject to disclosure unless an exemption applies, the County should have turned over the information. The County attempted to argue that it could not disclose the FOIA requests and responses because doing so would constitute an unwarranted invasion of personal privacy for the other FOIA requesters. The PAC debunked this argument, noting that the County could have easily made proper redactions if necessary.

Although FOIA requests about other FOIA requests may seem improper, the PAC has made it clear that they are acceptable and must be complied with—assuming no other exemption applies.

OMA: Village of Mapleton

The Village of Mapleton PAC decision concerns whether the conduct of board members may be considered in closed session. In the Mapleton case, one of the members of the Board of Trustees of the Village of Mapleton made racist comments during a prior board meeting. A few months later, the Village Board adjourned to closed session to discuss the conduct of the board member, citing the “personnel” exception.

An aggrieved member of the public filed a request for review with the PAC, arguing that this topic should have been discussed in open session. The PAC agreed. First, the PAC noted that the personnel exception is limited to discussing the “appointment, employment, compensation, discipline, performance, or dismissals of specific employees of the public body . . . .” However, elected officials are not “employees” of a public body; rather, they are occupants of public office. Therefore, the personnel exception did not apply.

The PAC went on to consider the Village’s second argument that, even though it did not cite the exception at the time, it was authorized to go into closed session because OMA Section 2(c)(3) authorizes the discussion of the “discipline, performance or removal of the occupant of a public office, when the public body is given power to remove the occupant under law or ordinance.” The PAC noted that there was no law or ordinance that would allow Village Board members to remove a fellow trustee. Consequently, this exception also could not apply. Thus, the Board should have discussed the conduct of the implicated member in open session.

Like the Village Board of Mapleton, fire protection district trustees have no ability to remove fellow trustees for cause. Therefore, any discussion of the conduct of trustees must be done in open session.