PAC Issues New Binding Opinion Regarding Personal and Pre-Decisional Exemptions Under FOIA

The PAC recently released its second binding opinion of 2022, which provides helpful analysis and guidance regarding the personal and pre-decisional exemptions under the FOIA. The PAC determined that the City of Chicago Department of Human Resources (“Department”) violated the FOIA by improperly withholding records pursuant to those Sections of the FOIA. The request at issue was for:

1. Disciplinary records concerning a specific City employee;
2. Records of complaints of racism, discrimination, or harassment concerning the same City employee; and
3. Records of complaints of racism, discrimination, or harassment for all City employees employed in a specific streets and sanitation facility.

The Department responded to the request with a redacted record in response to the first request, but withheld six additional records—a complaint against the named City employee responsive to the second request and additional complaints responsive to the third request. The Department cited Section 7(1)(c) (personal information) and Section7(1)(f) (pre-decisional) in support of its withholding.

Section 7(1)(c)

Section 7(1)(c) of the FOIA exempts from disclosure “personal information contained within public records, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” This exemption also states that “the disclosure of information that bears on the public duties of public employees and officials shall not be considered an invasion of personal privacy.” Whether disclosure of information would constitute an unwarranted invasion of personal privacy is evaluated on a case-by-case basis, weighing (1) the requester’s interest in disclosure, (2) the public’s interest in disclosure, (3) the degree of invasion of personal privacy, and (4) the availability of alternative means of obtaining the requested information.

Here, the PAC determined that disclosure of the complaints would not constitute a clearly unwarranted invasion of personal privacy, as there is significant public interest in information that sheds light on claims of racial discrimination, harassment, and other forms of public employee misconduct. The PAC reasoned that the disclosure of information regarding the public employee that is the subject of the complaint is not an unwarranted invasion of personal privacy, as specifically expressed in Section 7(1)(c) of the FOIA. Further, the PAC held that disclosure of such complaints would still be permissible even if the complaints were later determined unfounded.

The PAC, however, reasoned that complainants, witnesses, and third parties described in the complaints do have a legitimate privacy interest in the disclosure of their identities. Therefore, any information that may identify these individuals are exempt from disclosure under Section 7(1)(c) of the FOIA. Finally, the PAC held that complainants also have a right to privacy in certain graphic or salacious details contained in the complaints and that the complainants’ right to privacy outweighs public interest in such information. Notably, the PAC explained that information identifying complainants, witnesses, and third parties, as well as graphic or salacious details, can be sufficiently protected by redacting discrete portions of records rather than withholding them in their entireties. Therefore, the PAC found that the Department’s decision to withhold the documents in their entirety was improper.

Section 7(1)(f)

In addition to the 7(1)(c) exemption, the Department argued that the withheld records were exempt from disclosure pursuant to Section 7(1)(f) of the FOIA. Section 7(1)(f) exempts from disclosure “preliminary drafts, notes, recommendations, memoranda and other records in which opinions are expressed, or policies or actions are formulated, except that a specific record or relevant portion of a record shall not be exempt when the record is publicly cited and identified by the head of the public body.”  The Department argued that the withheld records were exempt from disclosure under Section 7(1)(f) because the complaints demonstrated “opinions and deliberations by the authors in preparation for an action or policy.” The PAC disagreed with the Department, ultimately determining that the complaints themselves were purely factual and not part of a deliberative process. As purely factual information is not exempt from disclosure under 7(1)(f) of the FOIA, the PAC found that the Department improperly withheld the responsive complaints pursuant to this exemption.

If you have any questions regarding the FOIA, please contact one of the authors of this post or any Franczek attorney.