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Illinois PAC Rejects FOIA Exemption for Communications with an Interested Third Party

Higher Education K-12 Education

The Illinois Attorney General’s Public Access Counselor recently issued a binding opinion holding that the Illinois Freedom of Information Act exemption for predecisional records does not apply to communications from a public body to a third party that stands to benefit from the record. The decision also suggests that the PAC will draw a bright line rule that records not exchanged exclusively among a public body’s employees and consultants who represent the public body’s interests are not protected by the predecisional records exemption, even though Illinois Courts have given the exemption a more expansive reading in the past. Because of this potential conflict, it is essential to work with legal counsel when preparing responses to FOIA requests.

The request for review involved a third party’s application for special use and zoning variations from the City of Geneva. The City and its consultants provided comments to the third-party applicant on the contents of its zoning application before the zoning hearing. The City’s stated purpose was to allow the third party to improve the application. The City argued that such review comments were predecisional and deliberative as they were intended to allow City officials to freely express ideas to the third-party applicant regarding application deficiencies, City requirements, and recommendations to improve the application prior to formal consideration by the City’s planning and zoning commission. The requester, an adjacent property owner who opposed the proposed use, argued that the city’s withholding of the records under Section 7(1)(f) was prejudicial to him as a challenger and did not fall under the exemption.

The PAC found that Section 7(1)(f) did not protect the communications because they were not inter-agency communications but were instead with outside third parties. In its decision, the PAC acknowledged that prior court decisions have recognized a public body’s right to withhold communications with third parties using the 7(1)(f) exemption, but the PAC distinguished that decision.

The case the PAC recognized, but ultimately criticized, is State Journal-Register v. University of Illinois Springfield. There, the Illinois Appellate Court held that a letter sent to a public body from an attorney for a third-party adverse to the public body was predecisional and subject to the 7(1)(f) exemption. The court explained that the purpose of exempting predecisional and deliberative material is to protect the communications process and encourage frank and open discussion among agency employees before a final decision is made. The court noted that the public body undoubtedly would have relied on the attorney’s letter in formulating a plan or policy for settling potential litigation with the victim. The court, however, did not discuss the fact that the letter was an inter-agency communication, likely determining that such an analysis was not relevant to determining if the communication was subject to the 7(1)(f) exemption. Incidentally, the 7(1)(f) FOIA exemption is silent regarding whether it only applies to inter-agency communications.

Although the State Journal-Register case clearly pertained to an inter-agency communication, the PAC distinguished the case to reach its conclusion that communications and records shared between a public body and a non-employee or non-consultant cannot be protected by Section 7(1)(f). Typically, the PAC would be beholden to the decision of an appellate court, but the PAC here reasoned that because the State Journal-Register court did not specifically discuss the inter-agency issue, the PAC could reach a different determination.

The PAC’s decision appears to make the blanket conclusion that any communication to or from a public body and a third party can never be subject to the Section 7(1)(f) exemption unless the third party is an employee or a consultant of the public body. This holding appears to create a conflict with the Appellate Court’s decision in State Journal-Register v. University of Illinois Springfield, which remains good law.

Given this apparent conflict, public bodies should carefully consider the exemption status of communications with third parties and seek counsel from an attorney where the determination is not apparent.