In its last binding opinion of 2024, the Public Access Counselor of the Illinois Attorney General’s Office (PAC) found a public body in violation of FOIA, rejecting all of the exemptions relied upon by the public body in denying the request. PAC Binding Op. 24-016

A requestor submitted a FOIA request to a
City Community Commission for Public Safety and Accountability (Commission) seeking a copy of a letter sent to the Commission by former and current
Civilian Office of Police Accountability (COPA) employees requesting the
Commission to investigate a COPA administrator. The Commission denied the
request in its entirety, citing several FOIA exemptions. After the requestor filed a
request for review with the PAC challenging the denial, the PAC issued a binding opinion finding that the Commission improperly denied the
FOIA request.

First, the PAC rejected the Commission’s reliance on the “invasion of personal privacy exemption” of Section 7(1)(c) of FOIA. The PAC determined that the public’s considerable interest in disclosure of the requested record (which involved allegations of impropriety by a COPA
administrator in performing their public duties and the abilities of other
public employees to perform their public duties) outweighed any privacy interests involved in the letter because the letter did not contain any highly personal details about private
affairs. 

Next, the PAC rejected the Commission’s reliance on the “ongoing law enforcement investigation” exemption of Section 7(1)(d)(iv) of FOIA, finding that the Commission is not a law
enforcement agency, and that the Commission did
not possess the letter as part of its participation in a law enforcement
investigation or proceeding.

The PAC also concluded that the letter was not exempt
under Section 7(1)(d)(vi) of FOIA, because the Commission did not
demonstrate how disclosing the letter would endanger anyone’s life or physical
safety.

The PAC further found that the Commission did not
demonstrate that the letter fell under the “deliberative privilege” exemption of Section 7(1)(f) of FOIA. The PAC noted that the letter was an unsolicited communication prepared by
employees of a separate public body and third-party former employees who were
not involved in a joint decision-making process with the Commission and, therefore, it was not issued as part of the Commission’s
predecisional intra- or inter-agency deliberative process, so disclosing the
letter would not expose the contents of any Commission deliberations.

The PAC also rejected the Commission’s argument that
the letter was prepared and compiled with respect to an internal audit that would be exempt under Section 7(1)(m) of FOIA, noting that the letter was issued by
third-parties independent of any Commission audit, and the Commission could
not transform a letter created outside the context of an audit into exempt
audit material just because the Commission might consider
the letter when potentially auditing COPA.

Finally, the PAC rejected the Commission’s argument that the
letter was protected under the employee grievance adjudication process protected by Section 7(1)(n) of FOIA, finding that the Commission
did not demonstrate that the subject of the letter was being adjudicated as an
employee grievance and, in any event, records created well before any adjudication takes places are not exempt under Section 7(1)(n). 

Post Authored by Eugene Bolotnikov, Ancel Glink