Court Orders Governor’s Office to Turn over FOIA Policy

A recent Cook County court decision addressed a Freedom of Information Act (“FOIA”) request to Governor Bruce Rauner’s office, and shed some light on what “final” means for purposes of the “preliminary records” FOIA exemption. Specifically, the circuit court found that a guidelines document prepared by the Governor’s office and sent to multiple departments instructing them on how to respond to FOIAs was a final directive, not a predecisional or draft document exempt from the FOIA.

The case involved a request for unpublished guidelines from early 2015 that the Governor’s office uses in deciding how to respond to FOIA requests. Although the exact contents of the guidelines are unknown, the requester suspects they are geared towards ensuring State agencies do not release records that may politically harm the Governor. The FOIA requester filed a lawsuit against the Governor in a Cook County court.

The Governor’s office acknowledged that the guidelines were responsive to the FOIA request at issue, but asserted they are exempt from FOIA disclosure as a preliminary draft document under section 7(1)(f) of FOIA. The circuit court disagreed, though, and pointed out that the Governor had already sent the guidelines to multiple State agencies instructing them on what the policy was. There is also no evidence that the records contained opinions or constituted internal strategy discussions. As such, the guidelines are not deliberative or a draft, but, rather, final directives. The court ordered the Governor to produce the documents immediately.

Assuming the Governor’s office appeals the decision, the guidelines will not be released unless an appellate court agrees with the circuit court’s analysis. We will be sure to keep you updated as this case progresses.