PAC Issues Two New Binding Opinions Concerning FOIA

The Illinois Public Access Counselor (PAC) recently issued two new binding opinions concerning the FOIA—one upholding a public body’s denial of a FOIA request for union records and another finding application materials for public office are not exempt under the FOIA.

In the first binding opinion, PAC 22-011, the PAC found that the Village violated the FOIA by improperly withholding application materials submitted by candidates for the Village of Chatham’s Board of Trustees. The requester submitted the request for review following the Village’s denial of his FOIA request, citing Sections 7(1)(b) (private), 7(1)(c) (personal), and 7(1)(f) (predecisional) of the FOIA. In the Village’s response to the request for review, the Village contended that the withheld records did not constitute “public records,” and reiterated its contention that the requested records were exempt from disclosure pursuant to Sections 7(1)(c) and 7(1)(f) of the FOIA.

The PAC rejected the Village’s argument that the requested records were not “public records” subject to the FOIA and the Village’s asserted exemptions. The PAC determined that the records did qualify as “public records” under the FOIA because the application materials directly related to the business of the Village and interests of the Village community. The PAC recognized great public interest to the local community in knowing who sought Board appointment. The PAC also rejected the Village’s argument that the requested records were exempt from disclosure pursuant to Section 7(1)(c) of the FOIA, which exempts personal information from disclosure if the disclosure would constitute a clearly unwarranted invasion of personal privacy. The PAC found that the disclosure of application materials would allow the public an opportunity to compare the skills and backgrounds of the individual that was appointed and those who were not chosen for the position. Further, the PAC determined that the rights of applicants for appointments to public office are diminished by the inherently public election process. Finally, the PAC denied the Village’s argument that Section 7(1)(f) of the FOIA, which exempts predecisional materials from disclosure, exempted the requested application materials. The PAC found that the responsive records contained purely factual information and did not reveal the Village president’s opinions or reflect any deliberations or insight into how he formulated his decision. Therefore, the PAC determined that the records were not exempt from disclosure under Section 7(1)(f).

In the second opinion, PAC 22-009, the PAC determined that the City of Berwyn did not violate the FOIA by denying a request for information of City employees represented by SEIU Local 73. The request asked for names, job titles, hire dates, work addresses, work e-mail addresses, and union involvement of City employees covered by the collective bargaining agreement with SEIU Local 73. The City denied the request in its entirety pursuant to Section 7.5(zz) of the FOIA, which exempts information that is prohibited from being disclosed under the Illinois Public Labor Relations Act (IPLRA). Specifically, the Section 6(c-5) of the IPLRA prohibits employers from disclosing:

• The employee’s home address
• The employee’s date of birth
• The employee’s home and personal phone number
• The employee’s personal email address
• Any information personally identifying employee membership or membership status in a labor organization or federation
• Emails or other communications between a labor organization and its members

While this decision focused primarily on the exemption under Section 7.5(zz) of the FOIA, which exempts from disclosure any information that is prohibited from being disclosed under the IPLRA, the decision gives school districts some insight into how the PAC may evaluate a similar request for information prohibited from disclosure under the Illinois Educational Labor Relations Act (IELRA). The IELRA prohibits disclosure of the same information as the IPLRA and the FOIA also exempts information prohibited from being disclosed under the IELRA, pursuant to Section 7.5(yy) of the FOIA. Accordingly, it is likely that the PAC would evaluate a request for review for similar information governed by the IELRA in the same manner.

Following the City’s denial, the requester filed a request for review with the PAC, claiming that she did not request information covered by Section 6(c-5) of the IPLRA because it did not request information that disclosed an employees’ relationship to their union—the request only sought bargaining unit, not union membership status. In response, the City argued that disclosure of the information requested would explicitly violate Section 6(c-5) of the IPLRA, because disclosure of the requested information would necessarily identify employees who have chosen to become members of a labor organization and which organization.

Ultimately, the PAC found that the City properly withheld the requested information because Section 6(c-5) of the IPLRA expressly applies to “any information personally identifying employee membership” in a labor organization or federation and “membership status.” The PAC went on to explain that information prohibited from disclosure under Section 6(c-5) includes the identity of the organization. The PAC also noted that, while typically a public body’s staff roster, employee address, and employee email count would not typically be exempt under the FOIA, because the request at issue only concerned employees who were within a bargaining unit represented by SEIU Local 73, disclosure of such information would reveal the identity of the organization and information concerning employee membership or membership status. Therefore, such information was exempt, in its entirety, from disclosure under Section 7.5(zz) of the FOIA.

If you have any questions about the FOIA, please contact any Franczek attorney.