A
reporter submitted a FOIA request to a city seeking copies of correspondence exchanged between a city official and a representative from a private company,
which the city official subsequently forwarded to a city attorney for the
purpose of seeking legal guidance. The city denied the request citing to FOIA exemption under Section
7(1)(m), stating that because these documents came into possession of a city
attorney from a client, they were protected by the attorney-client privilege and
are exempt from disclosure. The reporter then filed an appeal with the Illinois Attorney General’s
Public Access Counselor (“PAC”) contesting the denial.
The PAC issued its 10th
binding opinion of the year, concluding that the city improperly withheld
communications exchanged with a third party because they were not exempt from disclosure under Section 7(1)(m) of
FOIA. PAC
Op. 26-010. The PAC reasoned that at the time the records originated,
they were not sent to an attorney for the purpose of securing legal advice or
services, or sent from an attorney providing legal advice. Instead, the communications were between a city official and a third-party contractor for the city. Even
though a city attorney later obtained these records from their client (city
official), the PAC determined that forwarding pre-existing communications between the city and a third-party to counsel for the purpose of seeking legal advice did not
transform those records into privileged attorney-client communications, because
the records (1) did not originate in confidence between parties engaged in an
attorney-client relationship and (2) at the time the records originated, they
were not exchanged for the purpose of securing or providing legal advice.
Post Authored by Eugene Bolotnikov, Ancel Glink