City Did Not Waive Claim to Cite Additional Exemptions in FOIA Lawsuit
It is rare that we see a FOIA challenge go to court in Illinois - most challenges or appeals of a FOIA decision by a public body make their way to the Attorney General's Public Access Counselor's office (PAC). Recently, an Illinois Appellate Court issued an opinion in a FOIA challenge and ruled in favor of the public body. Hosey v. City of Joliet
A reporter filed a FOIA request with the City requesting copies of videotaped police interviews of several individuals. The City denied the request, citing various FOIA exemptions including personal privacy, interference with law enforcement proceedings and disclosure of confidential source or information. The reporter filed an appeal with the PAC office, and the PAC determined that the requester was entitled to the videotapes. When the City did not turn over those tapes, the requester filed a lawsuit, asking the circuit court to order the City to turn over the tapes and seeking civil penalties and attorney fees.
The circuit court ruled in favor of the City, and held that the tapes were not subject to disclosure. The court did not base its decision on the exemptions cited by the City in its denial, but instead held that the tapes were not subject to public inspection because the Illinois Criminal Code prohibits disclosure of the records relating to persons who are criminally accused.
The reporter appealed, arguing that the Criminal Code provision did not apply in this situation and that the City waived or forfeited this argument because it did not cite this exemption in its denial letter. The appellate court upheld the ruling in favor of the City and rejected the reporter's arguments. First, the appellate court determined that the City did not waive or forfeit the ability to raise additional exemptions to support its denial of the FOIA request. The appellate court cited two other appellate court decisions holding that a public body does not waive its claim to raise additional exemptions to support a denial in a FOIA challenge. Second, the appellate court agreed that the Criminal Code does apply to the requested records and prohibits release of electronic recordings of any statement made by an accused during a custodial investigation, even after the individual is no longer accused.
Written Orders Required by Supreme Court Rule 557
An important reminder to municipalities and municipal prosecutors. Under Supreme Court Rule 557 (which became effective March 1, 2019), courts must now enter written orders imposing any sentence and all fines, fees, and costs against a defendant at the time of sentencing in traffic, conservation cases, and ordinance violation cases. More importantly for municipalities, the municipal prosecutor is responsible for drafting the order and presenting it to the defendant or the defendant's attorney for review before submitting it to the court.
Post Authored by Megan Mack, Ancel Glink
Time to Start Thinking About Compliance With New IRS Reporting Requirement on Fines
Section 13306 of the Tax Cuts and Jobs Act prohibits individuals from deducting from their income taxes certain fines and/or restitution paid to government entities. According to the Internal Revenue Service (IRS), a municipality will also be required to file a 1098-F form with the IRS reporting any fine or restitution paid to the municipality of $600.00 or more. The IRS website summarized this new requirement on its website as follows:
A government or governmental entity and certain nongovernmental entities that exercise self-regulatory powers must file a separate Form 1098-F, Fines, Penalties, and Other Amounts, with the IRS for each fine, penalty, or other amount in excess of an amount determined by the Secretary that is paid in relation to any violation of law or investigation into potential violation of law, pursuant to a court order or agreement.
Although many municipal fines will be fall under the threshold reporting amount, there will certainly be instances where a fine will trigger this new reporting requirement, meaning that municipalities should be ready to comply with this new requirement.
The regulation and form leave a lot of questions unanswered, particularly how municipalities can ensure that it can obtain the required information from the individual who paid the fine or restitution that is required for the form (i.e., social security number, etc). Maybe some of these will be answered when the IRS finalizes its regulations on this new requirement, although that may not be until the end of the year. Until then, municipalities should discuss and consider how they will collect, store, and protect the information required for these forms so they are ready to comply when the regulations are final.
You can get more information about the reporting requirement and view a draft of the 1098-F form on the IRS website here.
Post Authored by Megan Mack & Julie Tappendorf, Ancel Glink
Short Term Rental Bill Introduced Again This Session
The Illinois General Assembly is considering another bill that would restrict local zoning authority. Yesterday, we reported on the bill that would restrict municipal zoning authority over "hoop houses" (temporary green houses for gardens). Today, we report on HB 2919
which, if passed, would restrict municipal zoning authority over short-term rentals (i.e., AirBNB, HomeAway, etc.)
If passed, the bill would prohibit municipalities from enacting any ordinance, regulation, or plan that would prohibit short-term rentals or even regulate them based on classification, use, or occupancy. There are a few exceptions to the ban that would allow the regulation of short-term rentals to protect the public health, safety, and other circumstances. That exception would seem to allow municipalities to exercise zoning authority to regulate or restrict short-term rentals so long as the primary purpose of the regulation is to protect fire and building codes, traffic control, or other health and safety concerns.
We will keep you posted on this and other bills proposing to restrict municipal zoning authority this session.
SB 1675 Would Prohibit Local Zoning Authority Over Certain Temporary Crop Protection Structures
Recently, a bill was introduced in the Illinois Senate that would significantly restrict local zoning authority. The Illinois Chapter of the American Planning Association has prepared and sent out an “e-blast” about the proposed legislation encouraging APA members to oppose the bill. Below is some of the information sent out by the IL-APA about this bill:
APA Illinois Position on SB 1675 Summary: Amends the Zoning Division of the Illinois Municipal Code, 65 ILCS 5/11-13-1 et seq. Provides that a municipality, including home rule municipalities, may not restrict residents from constructing a season extension or crop protection device from each October 1 through April 15. Provides that "season extension or crop protection device" means a temporary structure that meets the following specifications:
- the structure is used for growing agricultural products for personal consumption on private property;
- the structure is wholly on the owner's property;
- it is a skeletal structure comprised of materials that are easily constructed and easily deconstructed; and
- the walls of the structure are comprised of plastic membranes or firm translucent material.
Analysis: SB1675 is a significant prohibition on the exercise of otherwise broad municipal zoning power regarding a very specific type of temporary structure. Further, there is no legislative pronouncement explaining why the General Assembly has determined that residential crop protection structures warrant a special treatment and immunity from land use regulation, unlike other uses. In fact, the bill appears to be in response to some very specific situations. The home rule preemption is also a very unusual part of the proposed legislation. It is rare for the General Assembly to preempt home rule powers on unique local matters. Based on this, APA Illinois has determined that:
- This bill is an unnecessary limitation on municipal zoning powers over a very specific temporary use that may be placed on any part of a property, including front yards.
- Each municipality should maintain its authority over temporary structures and determine the best zoning regulatory approach that is consistent with its land use policies and plans, and enables for the appropriate protections of its residentially zoned neighborhoods and commercially zoned areas.