Copyright © 2010, Franczek Radelet P.C. All Rights Reserved. Disclaimer: Attorney Advertising. This...

Copyright © 2010, Franczek Radelet P.C. All Rights Reserved. Disclaimer: Attorney Advertising. This presentation is a publication of Franczek Radelet P.C. This presentation is intended for general informational purposes only and should not be construed as legal advice.

FIVE MONTHS UNDER THE NEW FOIA:What You’ve Learned

And What You Still Want to Know

Illinois Association of School Board Officials59th Annual Conference

Pheasant Run Resort, St. CharlesMay 19, 2010

Brian P. [email protected] Spivey [email protected]

Franczek Radelet P.C.300 South Wacker Drive, Suite 3400Chicago, IL 60606T: 312.986.0300www.franczek.com

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Overview

Amended FOIA, effective January 1, 2010 By now, you should have:

– Appointed FOIA Officer(s) – trained by June 30– Revised Policies, Procedures, Fee Schedules– Updated Website Information– Handled a few new FOIA requests?

Today, we will:– Assume You Know the Basics– Highlight Certain Reminders– Discuss Key Exemptions and PAC Nuances– Present Interactive Scenarios– Answer Your Questions

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Key Reminders

Request Form – May require written request. May not require a standard form.

Timeframe– Respond within 5 business days after receipt.– Can extend an additional 5 business days. (Total 10)– Written agreement for longer.– If fail to timely respond denial of the request. May not later

treat the request as unduly burdensome or charge copy fees. Copies – 1st 50 pages of black and white, letter or legal sized

copies must be free. After that, capped at 15 cents per page. (Actual cost for color, other sizes)

Format – If requested, furnish in the electronic format specified by the requester “if feasible.”

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Key Reminders

Commercial requests - If commercial purpose, 21 working days for response and provide the records within a reasonable period of time thereafter.

Denials - Must state the reasons and the specific exemption; include a detailed factual basis and a citation to supporting legal authority.

Appeals - No internal appeal. Denial notice must inform the requester of the right to appeal to the PAC and the right to judicial review.

Legal Standard - Prove that the record is exempt by clear and convincing evidence.

Attorney Fees - A court must award attorneys’ fees and costs to the requester if the court finds in favor of the requester.Copyright © 2010, Franczek Radelet P.C. All Rights Reserved. 4

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Website Posting Requirements

Must prominently display at administrative offices, make available for inspection and copying, send through the mail if requested, and post on website:

– A brief description of the public body– Summary of its purpose– Block diagram of functional subdivisions– Total amount of operating budget– Number and location of all of its separate offices– Approximate number of full and part-time employees– Identification and membership of any board, commission, committee,

or council which operates in any advisory capacity relative to the operation of the public body, or which exercises control over its policies or procedures, or to which the public body is required to report and be answerable for its operations (e.g. ISBE, Regional Superintendent)

Provide a brief description of the FOIA process and fees, and FOIA Officer directory/address. Must be posted on website.



List of immediately discloseable documents or categories of records.

List of all types or categories of records under its control.

Upon request, description of the manner in which public records stored by means of electronic data processing may be obtained in a form comprehensible to persons lacking knowledge of computer language.

Retain denial notices in a single central office file that is open to the public and indexed according to the type of exemption asserted and, to the extent feasible, according to the type of records requested.

Other Informational Requirements


Required Disclosures (New)

Settlement Agreements - Subject to inspection and copying by the public, provided that information exempt from disclosure may be redacted.

Independent Contractors - A public record in possession of a party with whom the public body has contracted to perform a governmental function on behalf of the public body is considered a public record (even if not in possession of public body).


Exemptions Still have exemptions that existed previously:

– Preliminary drafts, notes, recommendations, memoranda and other records in which opinions are expressed or policies or actions are formulated . . .

– Records prohibited by other laws from disclosure

– Proposals/bids until final award

– Closed meeting minutes

– Privilege with attorneys/auditors

– Collective bargaining

– Real Estate purchase


These types of records are explicitly exempt:

– Records relating to a public body’s adjudication of employee grievances or disciplinary cases, except final outcome records where discipline is imposed.

– Test questions, scoring keys, and other examination data used to administer an academic examination.

– Course materials or research materials used by faculty members.

– Teacher, principal, superintendent evaluations.

Pending Legislation (Personnel Record Review Act):

– HB 5154 – Would exempt (all) performance evaluations from disclosure.

Exemptions – School Context


Exemptions – Private/Personal

“Private information”

Unique identifiers, including a person’s SSN, driver’s license number, EIN, biometric identifiers, personal financial information, passwords or other access codes, medical records, home or personal telephone numbers, personal email addresses, home address and personal license plates.

“Personal Information”

Clearly unwarranted invasion of personal privacy. The disclosure of information that is highly personal or objectionable to a reasonable person and in which the subject’s right to privacy outweighs any legitimate public interest in obtaining the information. The disclosure of information that bears on the public duties of public employees and officials shall not be considered an invasion of personal privacy.


Pre-Approval for Certain Denials

Must notify the Attorney General’s (PAC) office before denying any request on the basis of these exemptions:

- 7(1)(c) personal information; or

- 7(1)(f) preliminary drafts, notes, recommendations, etc.

PAC shall determine whether further inquiry is warranted.

PAC may compel a public body to provide it with the relevant documents within 7 working days.

PAC has right to review all documents and verbatim recordings. Has subpoena power.


Our FOIA request to the PAC for:

– Notices of intent to deny under 7(1)(c) and 7(1)(f); and

– PAC responses to those notices either approving or denying the right to use 7(1)(c) or 7(1)(f).

Partial response:

– Received PAC letters.

– Also available online now.

PAC has responded to 150+ notices of intent to deny.

PAC Responses


Use of personal exemption 7(1)(c) approved for:

– Date of birth and age

– Employment recommendations, references, verifications

– Employee designations of beneficiaries

– Investigative materials (e.g., police reports) where charges were never brought

PAC Responses - Personal


Use of personal exemption 7(1)(c) denied for:

– Names of parties to settlement agreements

– Names of candidates for public positions

– Resumes of candidates for public positions

PAC Responses - Personal


Use of preliminary draft exemption 7(1)(f) approved for:

– Investigative reports

– Interview notes

– Correspondence between public officials discussing candidates for a job

– Preliminary notes of an administrative law judge

PAC Responses - Preliminary


What it means:

– Use prior cases as examples when making arguments to PAC that 7(1)(c) or 7(1)(f) should apply.

What it does not mean:

– You cannot deny a request simply because a similar denial has already been approved in another case by the PAC.

– Must still seek pre-approval.

– Example: The PAC has now issued 100+ responses stating that dates of birth are personal information under 7(1)(c), but you must still seek a new approval letter before refusing to disclose a date of birth in the future.

Implications of PAC Responses


Sally Citizen approaches Board Member Barbara on Wednesday, January 13, and requests copies of all of the settlement agreements entered into by the District last year. Board Member Barbara tells Sally Citizen that in order to submit a FOIA request, she must download the District’s FOIA request form from its website and send it to the Superintendent’s office.

Instead, Sally writes her request in an e-mail and sends it to Board Member Barbara on Friday, January 15. Board Member Barbara forwards the request to the Superintendent’s office, which receives it on Monday, January 18.

Does the District have to release the settlement agreements?

Can the District require Sally to download the form?

When was the FOIA request officially “received?”

When is the response due?

FOIA Scenarios


During the Monday of spring break, Apple School District receives a FOIA request from a local newspaper requesting copies of the resumes and evaluations of all first year teachers and first year administrators.

How long does the District have to respond to the newspaper’s request?

Does the District have to provide copies of the requested documents?

FOIA Scenarios


Rock-n-Roll School District recently terminated the District’s Business Manager John Smith for using hundreds of dollars of District funds to play on-line poker. The District subsequently receives a request for a copy of a memo from the Superintendent to the Board discussing the termination that the Superintendent marked confidential.

The District decides to deny the response, and sends the following letter: → → →

Is this a sufficient response?

Dear Requester,

I am in receipt of your April 30, 2010 letter in which you request certain information under the Illinois Freedom of Information Act (“FOIA”). In your letter, you request copies of a memo from the Superintendent to the Board of Education regarding the discipline and termination of Rock-n-Roll School District Employee John Smith. Your request is denied because the document is a confidential memorandum not subject to disclosure.

Pursuant to Section 9 of FOIA, you may appeal the denial of your request to the President of the Board of Education.

Sincerely,

Superintendent Rock-n-Roll School

District

FOIA Scenarios


Huckleberry School District receives a request from Tell All Telemarketers for the names, addresses, phone numbers and birth dates of all District employees. The request provides that any records in Word format should be emailed to the requester in Word format.

How long does the District have to respond?

Are any of the requested items exempt from disclosure?

Can the District provide the information in a PDF format?

FOIA Scenarios

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For Additional Information

www.new-foia.com–January 2010 Article with detailed FOIA

information–Before/After Comparison Chart of FOIA

Amendments–FOIA Document Package Information–Links and Information


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ANY QUESTIONS?


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