February FOIA Roundup
March 4, 2019
February was a busy month for decisions about the Illinois Freedom of Information Act (“FOIA” or the “Act”). In addition to a Public Access Counselor (“PAC”) decision reminding public bodies to respond to FOIA requests (and the consequences if they do not), three court cases also addressed issues ranging from the reasonableness of a search for records, access to government contractor documents, and release of grand jury records. The flurry of decisions in this area, which are summarized below in order of significance to the public bodies we represent, is a reminder that FOIA issues have become hotly contested both before the PAC and in the courts. Now more than ever, it is imperative that FOIA officials have up-to-date legal guidance regarding the ever-changing FOIA law when responding to FOIA requests, requests for review, and lawsuits.
Rushton v. Department of Corrections (Ill. Appellate Court)
The first case on our list is Rushton v. Department of Corrections, an Illinois Appellate Court decision discussing the rule that certain records maintained by contractors must be produced under FOIA. In Rushton, the Illinois Appellate Court found that a settlement agreement regarding an Illinois Department of Corrections (“DOC”) prisoner who died from alleged inadequate medical service was a “public record” subject to FOIA, even though it was in the possession of a private company, Wexford. Wexford provides medical services to DOC prisoners, which the court found to be a “governmental function.” The court also found that the settlement agreement, which involved the settling of a claim arising out of Wexford’s rendering of medical care to a DOC prisoner, “directly relates” to the governmental function Wexford performed for DOC. The court continued the trend of not defining the term “directly relates,” instead conducting a case-by-case analysis of the specific relationship between the public body and the contractor at issue. This case is a reminder to public bodies of the uncertainty surrounding the applicability of FOIA law to records maintained by third-party contractors who work with public bodies.
Blackman v. City of Chicago (Ill. Appellate Court)
In another Illinois Appellate Court decision, Blackman v. City of Chicago, the court reaffirmed that public bodies are only required to conduct a reasonable search for responsive records; a violation of FOIA will not be found just because some documents are missing. In Blackman, the City of Chicago produced certain records responsive to a FOIA request, including a ledger of documents from the original file. The ledger referred to documents that the City had not produced, including a particular form. The requesters demanded that the City find the missing documents or provide a blank copy of the form that was missing if the original completed form could not be found. The City did not produce any further documents or the blank form because it said they could not be found.
The court rejected the requester’s challenge that the City had conducted an inadequate search. The court noted that the City had provided an affidavit showing that the FOIA officer reviewed the request for documents, requested the file and, when he received it, redacted it and sent it to the requester. After the requester reported that records were missing, the FOIA officer reordered the file and, when she confirmed some records were missing, asked the employee who maintained the file why the documents were missing. The employee said that if the records were not in the file, they were not in the possession of the public body, and that he could not provide any rationale for why it was missing. The court found the City had to go no further and complied with the FOIA.
In re Appointment of Special Prosecutor
In In re Appointment of Special Prosecutor, the Illinois Supreme Court held that grand jury documents are exempt from disclosure under FOIA. Section 7(1)(a) of the FOIA exempts from disclosure information specifically prohibited from disclosure by state law, and the Illinois Code of Criminal Procedure protects the privacy of grand jury matters. Although only directly applicable to public bodies that maintain grand jury records, other public bodies, including school districts, are often required to provide sensitive information in response to grand jury subpoenas. The decision provides some comfort to those employers that the records provided will remain confidential in the face of a FOIA request.
PAC Opinion 19-003
The sole decision the PAC issued in February, Pubic Access Opinion 19-003, provides a relatively simple warning: respond to FOIA requests within the time prescribed by the statute. As the PAC reminded the public body in this case, if you fail to do so, you cannot treat a request as unduly burdensome or impose any copying fees for responsive records. Although this may not seem a steep penalty, depending on the nature of the request, it can be a daunting one. Remember that if your FOIA officer will be out of town on vacation, you should have a backup in place to ensure FOIA requests are timely addressed. Also, training for all public employees to ensure they forward along requests to the FOIA officer when they receive them is imperative.