FOIA Decisions Clarify Burden of Proof for Invoking Pre-decisional, Attorney-Client, and Security Measures Exemptions

Two recent Illinois Appellate Court opinions provide public bodies clarity regarding the pre-decisional, attorney-client, and security measures exemptions of the FOIA. In the first case, Chicago Public Media v. Cook County Office of the President, the Court provided useful guidance on when documents will be considered pre-decisional and protected from disclosure under the FOIA. Additionally, the Court specified circumstances in which communications with an attorney may be protected by the attorney-client privilege exemption under Section 7(1)(m) of the FOIA. In the second case, Chicago Sun-Times v. Chicago Transit Authority, the Court clarified the burden of proof for the Section 7(1)(v) exemption regarding security measures. 

In Chicago Public Media v. Cook County Office of the President, Chicago Public Media submitted multiple FOIA requests to the Cook County Office of the President (OCCP) regarding a political action committee founded and chaired by a commissioner of the Cook County Board of Commissioners. OCCP responded by producing redacted records to the requester, citing the pre-decisional exemption under Section 7(1)(f) of the FOIA and the attorney-client privilege exemption under Section 7(1)(m) of the FOIA. Chicago Public Media sued, alleging OCCP willfully violated the FOIA when it redacted certain information. The trial court found that OCCP did not violate the FOIA with relation to all but one record; a decision which Chicago Public Media appealed. On appeal, the Appellate Court disagreed with the trial court and held that OCCP improperly relied on the pre-decisional and attorney-client privilege exemptions, in violation of the FOIA.  

Section 7(1)(f) of the FOIA exempts from disclosure “preliminary drafts, notes, recommendations, memoranda and other records in which opinions are expressed, or policies or actions are formulated…” Here, the Court found that OCCP failed to meet its burden to establish that the withheld information pertained to deliberative processes related to developing governmental policies or actions. Further, the Court held that OCCP failed to show that production of such information would reveal the public body’s deliberative process for underlying substantive policy. For the pre-decisional exemption to apply, the Court reasoned that responsive materials must be (i) inter or intra agency and (ii) pre-decisional and deliberative, meaning the record is created before adoption of a policy and that it is actually related to the process by which policies are formulated. In this case, the Court found that some of the withheld information contained purely factual material that did not include discussions of any kind regarding substantive governmental policy or actions. Material that is purely factual must be disclosed once a final decision is made, unless the material is inextricably intertwined with pre-decisional deliberative process discussions, which according to the Court was not the case here. Additionally, the Court held that drafts of answers to questions posed by a reporter, a draft speech, and a draft of talking points did not sufficiently reveal the public body’s deliberative process as to government policies such that the 7(1)(f) exemption could be invoked. 

The Appellate Court also held that OCCP did not meet its burden to establish that the information redacted was protected under Section 7(1)(m). That Section of the FOIA exempts communications between a public body and its attorney that would not be subject to discovery in litigation. The Court reasoned that a public entity must establish that (i) the attorney was representing the public body and (ii) the communications would not be subject to discovery in litigation. In this case, some of the withheld correspondence was not sent or received by the attorney and therefore, was not exempt from disclosure. The remainder of the information OCCP redacted under the 7(1)(m) exemption did not contain confidential legal information. Instead, the emails included scheduling requests and an email titled “FOIA Request” that did not contain legal advice. Further, the Court held that labeling the emails as “confidential attorney work product” was not enough to render the emails exempt. Accordingly, the Court held that OCCP did not meet its burden to establish that the correspondence was exempt under Section 7(1)(m) of the FOIA.  

In Chicago Sun-Times v. Chicago Transit Authority, the Chicago Sun Times submitted FOIA requests to the Chicago Transit Authority (CTA) and Chicago Police Department (CPD) seeking disclosure of surveillance video of a subway platform. The CTA denied the request, citing Section 7(1)(v) of the FOIA. CPD also denied the request, citing multiple exemptions including Section 7(1)(v). The Chicago Sun Times filed suit, alleging the CTA and CPD improperly withheld the video in violation of the FOIA. The trial court ruled in favor of the requester, which the CTA appealed. 

Section 7(1)(v) of the FOIA exempts from disclosure:  

security measures…designed to identify, prevent, or respond to potential attacks upon a community’s population or systems, facilities, or installations, the destruction or contamination of which would constitute a clear and present danger to the health or safety of the community, but only to the extent that disclosure could reasonably be expected to jeopardize the effectiveness of the measures or the safety of the personnel who implement them or the public. 

The CTA argued that the security footage was exempt under section 7(1)(v) because disclosure could reasonably be expected to jeopardize the effectiveness of the CTA’s surveillance system. In support of its position, the CTA argued that disclosure of the video would reveal the position of cameras installed in train stations, the capabilities of the cameras, areas captured by cameras, and areas where view of cameras cannot be reached. The Appellate Court agreed with the CTA, reasoning that Section 7(1)(v) is worded broadly and does not require an agency to prove by clear and convincing evidence that releasing a particular record would, in fact, diminish the effectiveness of its security measures. Instead, an agency only must show that it could reasonably be expected that the release of such records could jeopardize their effectiveness. Here, the Court ultimately found that the CTA met that burden. 

This decision may be helpful to other public bodies, such as public schools, colleges, and universities who also use security cameras in their facilities.   

If you have questions regarding the Freedom of Information Act, please contact the authors of this post or any Franczek attorney.