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Illinois Attorney General’s Public Access Counselor Issues Binding Opinions Regarding FOIA Exemptions

Higher Education K-12 Education

The Public Access Counselor (PAC) of the Illinois Attorney General’s office recently issued two binding opinions addressing the Freedom of Information Act (FOIA). Specifically, the opinions found two public bodies in violation of FOIA for improper application of the “deliberative process” exemption and the “attorney-client privilege” exemption.

In PAC Op. 17—005, the PAC found that “purely factual material” such as statistical data is not encompassed in the “deliberative process exemption” (aka the pre-decisional exemption) and must be shared in response to an FOIA request. In this case, the requester sought from the Village of Oak Park traffic counts from roadway monitoring operations at specific roads on specific dates. The Village denied the request, arguing that the records were “drafts” that had not been released to the public. The “deliberative process” clause of the Illinois law exempts from FOIA disclosure “[p]reliminary drafts, notes, recommendations, memoranda and other records in which opinions are expressed, or policies or actions are formulated.” 5 ILCS 140/7 section 7(1)(f).

The PAC rejected the Village’s argument, stating that the traffic counts requested are “purely factual,” and subject to disclosure even if the data is in preliminary form and subject to change. The PAC confirmed that only when factual data is “inextricably intertwined” with communications, opinions or recommendations is it subject to the exemption. Finding that the Village’s data did not reveal the public body’s deliberative process or reflect any preliminary position, the PAC held that the Village violated FOIA in refusing to provide the requested data. 

In PAC Op. 17—006, the PAC found that the Illinois Department of Corrections (IDOC) failed to demonstrate that either the “deliberative process” or the “attorney-client privilege” exemptions applied to the records requested by a journalist for the job titles, locations and numbers of employees that that the IDOC considers “essential,” or those who would continue to work in the event of an interruption in state employee pay and state government office closure. The IDOC had denied the request, stating that the records were exempt from FOIA disclosure based on both the “deliberative process” exemption and the “attorney-client privilege” exemption.

As a preliminary matter, the PAC found that the IDOC failed to include in its denial of the FOIA request any factual basis or other support for its assertion of application of the exemption clauses, nor did it confirm whether it had any responsive records. This error was compounded when the IDOC failed to respond to the PAC’s request to confirm whether such records existed and, if not, whether an appropriate search had been conducted.

Instead, IDOC had responded that the records would be exempted if the IDOC had them. The PAC confirmed that FOIA does not allow a public agency to respond in the hypothetical without confirming whether or not the documents exist. 

Regarding the exemptions claimed by IDOC, the PAC found that the agency did not meet its burden in demonstrating the applicability of the “attorney-client privilege” provision because it failed to cite facts or legal authority to demonstrate that the records represent either attorney communications relating to legal advice or materials created in preparation for litigation that reveal the attorney’s reasoning. The PAC also held that the IDOC did not show how the “deliberative process” exemption it originally cited in its denial of the FOIA request applied because it failed to provide specific facts as to how the records contain “pre-decisional and deliberative materials” or “factual material that is inextricably intertwined with deliberative decisions.” While this opinion does not set out what facts would be sufficient to meet the threshold for application of these exemptions, it makes clear that conclusory statements are insufficient to support an FOIA denial under either the attorney-client privilege exemption or the deliberative process exemption.