New Binding Opinion on Scope of FOIA for Third Parties and Proprietary Information

In a rare binding opinion, the Illinois Attorney General’s Public Access Counselor (PAC) opined that certain information in the sole possession of a vendor that had contracted with the Illinois Department of Corrections (IDOC) to perform medical services were public records subject to the Illinois Freedom of Information Act (FOIA). The PAC further determined that the above described records were not subject to the trade secret exemption.

In PAC Op. 20-006, a FOIA request was made to the IDOC seeking aggregate data on head injuries incurred by individuals in IDOC’s custody during an indicated period of time as well as policies for evaluating certain injuries of IDOC inmates and employees incurred within the correctional facilities.

Notably, IDOC had entered into a contract with a healthcare vendor, Wexford Health Sources, Inc (Wexford) to provide medical, dental, vision, pharmaceutical, and mental health services for offenders at specified state correctional centers. The contract between IDOC and Wexford designated policies and procedures as well as work product as confidential information that was not subject to FOIA disclosure, if exempt under FOIA.

In response to the FOIA request, IDOC stated that it did not maintain or possess aggregate data or the requested policies. Regarding records maintained by Wexford, to the extent they were considered public records, IDOC stated that the policies and procedures were proprietary information and exempt from disclosure pursuant to FOIA’s trade secret exemption. IDOC’s response did not address whether Wexford might possess records containing data concerning head injuries.

The PAC first addressed whether the records maintained by Wexford were public records subject to FOIA pursuant to Section 7(2) of FOIA. Section 7(2) provides that

A public record that is not in the possession of a public body but is, in the possession of a party with whom the agency has contracted to perform a governmental function on behalf of the public body, and that directly relates to the governmental function and is not otherwise exempt under this Act, shall be considered a public record of the public body, for purposes of this Act.

Relying on prior federal and state cases, the PAC determined that both types of records sought by the FOIA request directly related to the governmental function of providing medical care for inmates. In so concluding, the PAC emphasized that Section 7(2) of FOIA ensures that governmental entities are not permitted to avoid their disclosure obligations under FOIA by contractually delegating their responsibility to a private entity. Even though Wexford, a private entity created and held the records, pursuant to Section 7(2) of FOIA, the records were subject to FOIA as IDOC’s records.

With respect to whether the records contained proprietary information and were exempt from disclosure pursuant to Section 7(1)(g) of FOIA, the PAC opined that IDOC did not sustain its burden of proving by clear and convincing evidence that any responsive records in the physical custody of Wexford were exempt from disclosure.

To be exempt from disclosure under section 7(1)(g), (1) the document must contain a trade secret, commercial, or financial information, (2) the document must be obtained from a person or business where the trade secrets or commercial or financial information are furnished under a claim that they are either (a) proprietary, (b) privileged, or (c) confidential, and (3) disclosure of the trade secrets or commercial or financial information would cause competitive harm to the person or business.

Here, the PAC found that DOC provided insufficient evidence to show they constitute a “a trade secret, commercial or financial information” and that disclosure of the records would cause “competitive harm.”

The opinion serves as a reminder that records possessed by a party with whom a public body has contracted to perform a governmental function and that directly relates to the governmental function are considered public records under FOIA. Additionally, the PAC has illustrated the high burden of proof necessary to rely on the trade secret exemption.