PAC Issues Binding Opinion Finding in Favor of Public Body’s Use of the Attorney-Client FOIA Exemption

In its first binding opinion of the year, the Public Access Counselor (PAC) provides further clarity to the attorney-client privilege exemption under Section 7(1)(m) of the Freedom of Information Act (FOIA). Specifically, the PAC found a public body did not impermissibly withhold records pursuant to the attorney-client privilege exemption because the record at issue was developed by the public body’s attorney for the primary purpose of providing legal guidance on a specific issue.  

At issue were records a community member requested from the State’s Attorney’s Office seeking copies of reports given to Kane County Board members regarding the use of county funds. The State’s Attorney’s Office denied the request pursuant to Section 7(1)(m) of the FOIA, which exempts from disclosure documents subject to the attorney-client privilege. Subsequently, the community member filed a Request for Review with the PAC, alleging the State’s Attorney was providing non-legal public relations advice in the documents she requested and therefore, it was not acting as a legal advisor regarding the withheld records.  

In its decision, the PAC relied on the Illinois Supreme Court’s description of the attorney-client privilege as communications where legal advice is sought from a legal advisor in that capacity, made in confidence to a client, and which is permanently protected from disclosure, unless the privilege is waived. The PAC went on to state that the privilege applies both to communications of a client to an attorney and to the advice of an attorney to a client. Notably, the PAC reasoned that the attorney-client privilege would not apply where an attorney is involved in communications that seek non-legal advice, such as public relations advice. For the attorney-client privilege to attach, therefore, the PAC explained that the primary purpose of the communication must be to provide legal assistance. Here, the PAC found that the State’s Attorney had an attorney-client relationship with the County Board. Therefore, the operative question was whether the withheld record contained confidential communications in which legal advice was requested or provided.  

Ultimately, the PAC found that the withheld responsive record did not contain public relations advice or strategies. Instead, the record was developed in the State’s Attorney’s capacity as the County Board’s attorney for the purpose of providing legal advice. The PAC reasoned that even had the contents of the record influenced public statements, the record was protected by the attorney-client privilege because the purpose of the record was to provide legal advice.  

While the PAC ultimately found that the records were exempt, its decision implied that had the advice been solely related to public relations and not contained legal advice, the records may not have been exempt even though they were communications between the County and its attorney. If you have any questions regarding the FOIA or how attorney-client privilege may apply, reach out to one of the authors of this post or any Franczek attorney.