Earlier this week, the Governor signed into law two bills to amend the Freedom of Information Act. First, Public Act 101-0433(SB1699) amends Section 2.15(e) of FOIA to redefine where law enforcement agencies may not publish booking photographs (i.e. ...

 

New FOIA Amendments Just Signed by Governor and more...



New FOIA Amendments Just Signed by Governor


Earlier this week, the Governor signed into law two bills to amend the Freedom of Information Act.

First, Public Act 101-0433(SB1699) amends Section 2.15(e) of FOIA to redefine where law enforcement agencies may not publish booking photographs (i.e. mugshots). Before the amendment, an agency was not allowed to share on its “social media website”. With this amendment, the definition was changed to “social networking website” as it is defined in Section 10 of the Right to Privacy in the Workplace Act. Section 10 of the RPWA defines social networking site as:
an Internet-based service that allows individuals to: (i) construct a public or semi-public profile within a bounded system, created by the service; (ii) create a list of other users with whom they share a connection within the system; and (iii) view and navigate their list of connections and those made by others within the system. 
This definition excludes e-mail. This Act became effective yesterday.

Second, Public Act 101-0434 (SB1712) amends Section 7 of FOIA to add Exemption 7(1)(kk) which exempts from disclosure: 
The public body's credit card numbers, debit card numbers, bank account numbers, Federal Employer Identification Number, security code numbers, passwords, and similar account information, the disclosure of which could result in identity theft or impression or defrauding of a governmental entity or a person. 
This law becomes effective January 1, 2020.

Post Authored by Ashton Tunk & Julie Tappendorf, Ancel Glink

 

7th Circuit Addresses Privacy Exemption Under Federal FOIA

This week, the 7th Circuit delivered a victory for the federal government in Higgs v. United States Park Police, a case that involved balancing privacy interests against public disclosure under the federal FOIA statute.

Higgs was convicted and sentenced to death for participating in kidnapping and murdering three women with his two friends in 1996 in a federal park located in Maryland. Higgs, while on death row, insisted for several years that the federal government failed to turn over exculpatory evidence as required by law. In 2012, Higgs filed a FOIA request with the United States Park Police seeking “a complete copy of everything pertaining to the homicide convictions.” The Park Police notified Higgs that it would not release any documents because they were exempt under various exemptions, including the “privacy exemption.”  Higgs then filed a lawsuit to challenge the FOIA denial. The Park Police subsequently released some responsive documents to Higgs.

Higgs argued that the government’s response to Higgs’ FOIA request was inadequate on several grounds. The district court agreed in part, ruling that Higgs was entitled to certain records because (1) he demonstrated a sufficient public interest in trying to uncover government misconduct and (2) the government failed to identify what privacy interests would be impaired and to the extent they would be negatively impaired

On appeal, the government argued that: (1) the district court clearly erred in evaluating the individual privacy interests and (2) Higgs did not advance a sufficient public interest that warranted the disclosure of the subject records.  Higgs responded that the public interest he advanced was sufficient to warrant disclosure as he sought to reveal government misconduct and educate the public about how the Department of Justice carries out its law enforcement duties.

The 7th Circuit concluded that Higgs did not advance a sufficient interest under the FOIA privacy exemptions’ “balancing test.” The Court rejected Higgs’ government misconduct argument. The Court also found Higgs’ argument of an educational benefit a “vague interest” that did not meet the threshold burden to justify disclosure. 

Although this case strictly dealt with federal FOIA law, the rationale in this case is helpful in understanding how an Illinois court might analyze the “personal privacy” exemption and apply that exemption’s balancing test. Local governments, especially their police departments, should always review records based on sensitive or tragic events through the lens of both 7(1)(c) and 7(1)(d) of the Illinois FOIA statute to bolster their reasoning for withholding documents for privacy concerns.

Post Authored by Ashton Tunk and Julie Tappendorf, Ancel Glink

 

Amendments to OMA Allow Alternative Training for Municipal Officials

The Illinois Governor just signed legislation making it easier for municipal officials to complete the required Open Meetings Act training. Under current law, all elected and appointed members of public bodies in the state of Illinois must complete the electronic OMA training offered by the Illinois Attorney General within 90 days of taking office. Previous amendments to the OMA authorized  officials in park districts, school districts, drainage districts and others to satisfy the training requirement through alternative programs. Pursuant to P.A. 101-814, an elected or appointed official on a public body of a municipality may satisfy the OMA training requirements by participating in a training sponsored or conducted by an organization that represents municipalities in the state of Illinois. 
 

Public Body Did Not Violate FOIA in Multiple FOIA Requests

The second FOIA case decided last week is Walker v. Bruscato, 2019 IL App (2d) 170775. Walker had filed multiple FOIA requests with the Winnebago States Attorney's Office for records pertaining to his murder indictment. The first request asked for a copy of the grand jury transcript. The second request asked for a "current or previous list of the types and categories of records available for inspection and copying maintained in your office." His third request asked for a copy of the record of indictments in May and June of 2001. His fourth request asked for a copy of the grand jury votes and deliberation for all indictments returned during that same time period. 

The County provided the first requested record and responded to the second request that it had no responsive records. The County denied the third and fourth requests, citing to the confidentiality of grand jury records.  Walker then sued, claiming the County violated FOIA related to all four FOIA requests. The circuit court ruled in the County's favor, and Walker appealed.

The appellate court agreed with the circuit court's ruling in the County's favor. First, the court found that the County did, in fact, provide the transcript in response to the first FOIA request. Second, the court held that Walker had no cause of action under Section 11 of FOIA because he was not "denied access" to any public record since the requested records simply did not exist, stating that "A request for records not yet created is invalid." The court also rejected Walker's argument that the County failed to maintain the list as required by section 5 because the County created the list following Walker's request and subsequently provided a link to that list to Walker. Finally, the court agreed that the grand jury records requested in the third and fourth requests were exempt from release as state law expressly prohibits disclosure of grand jury proceedings. 


 

Quorum Forum Podcast Episode 29: Avoiding Employment Mistakes

Ancel Glink just released Episode 27 of its Quorum Forum Podcast: Avoiding Employment Mistakes. In this episode, Ancel Glink attorney John Hayes discusses ways employers can avoid common mistakes and law clerk Mike Halpin provides an update on recent employment laws and cases. And, as usual, Ancel Glink partner Dan Bolin keeps the episode lively and entertaining. 

Listen to this episode here.