In March 2025, a news
organization submitted a FOIA request to a school district seeking a copy of an
email attachment sent by the school district’s board president to other board
members. The attachment related to a billing dispute between the school district
and its former legal counsel. The school district denied the request citing
various FOIA exemptions.

After the news organization
submitted a request for review with the Illinois Attorney General’s Public Access Counselor (PAC) challenging the denial of their request, the PAC
issued its eight binding opinion of 2025, concluding that the school district
improperly withheld the responsive record. PAC
Op. 25-008.

First, the PAC determined
that the requested record was not exempt from disclosure pursuant to Section
7(1)(m) of FOIA, which exempts attorney-client privileged communications. The
PAC acknowledged that billing invoices or statements containing confidential, privileged communications between a public body and its attorney for the purpose of
seeking or providing legal advice are protected from disclosure under Section
7(1)(m) of FOIA. The PAC also acknowledged that billing invoices or statements
describing the nature of services performed, a public body’s motive for seeking
legal representation, or litigation strategy, are also protected from
disclosure pursuant to Section 7(1)(m) of FOIA. Here, however, the PAC
determined that the contested record was not exempt from disclosure pursuant to
Section 7(1)(m) because it did not reveal the substance of matters for which
the school district sought legal advice or any legal advice the school
district’s former attorneys provided while acting as their legal advisor—rather,
the record broadly pertained to a billing dispute between the school district
and its former legal counsel. 

Second, the PAC rejected the
argument that several Illinois Supreme Court Rules of Professional Conduct
(Rules) prohibited the school district from disclosing the contested record.
Specifically, the PAC found that the Rules apply to and govern the conduct of attorneys,
not their clients. In this case, the PAC determined that the Rules do not
specifically prohibit public bodies from disclosing non-exempt public records
in response to a FOIA request.

Lastly, the PAC found that
the contested record was not exempt from disclosure pursuant to FOIA’s
deliberative process exemption in Section 7(1)(f) of FOIA because the record
did not reflect deliberations with a third party acting on the school district’s
behalf. Instead, the PAC opined that the contested record was a communication to the school district
from its former legal counsel, which, in that correspondence, was acting with independent interests that
were not aligned with the school district’s interests at the time it received
the correspondence. 

Post Authored by Eugene Bolotnikov, Ancel Glink