A couple of months ago, we reported that the Illinois Supreme Court was hearing oral arguments in the appeal by the Better Government Association (BGA) of a court decision that ruled against the BGA in a FOIA case. Specifically, the BGA had argued that ...

 

Illinois Supreme Court Rules IHSA Not Subject to FOIA and more...



Illinois Supreme Court Rules IHSA Not Subject to FOIA

A couple of months ago, we reported that the Illinois Supreme Court was hearing oral arguments in the appeal by the Better Government Association (BGA) of a court decision that ruled against the BGA in a FOIA case. Specifically, the BGA had argued that the Illinois High School Association was a "public body" subject to FOIA. The circuit and appellate courts disagreed, finding that the IHSA was not subject to FOIA. 

Today, the Illinois Supreme Court issued its ruling upholding these rulings, agreeing that the IHSA is not subject to FOIA.  BGA v. IHSA, 2017 IL 121124. This ruling will provide helpful guidance to both public bodies and non-governmental organizations as to how the Illinois Supreme Court interprets "public body," and specifically what constitutes a "subsidiary body" and a "governmental function" under FOIA.

The Court applied the "test" set out in to earlier cases that interpreted "subsidiary body" for purposes of the Open Meetings Act. Hopf and Rockford Newspapers. That test applies multiple factors to determine the independence of the entity or organization from the governmental body. That test requires the court to look at three factors:

1.  whether the entity has a legal existence independent of government resolution
2.  the nature of the functions performed by the entity; 
3.  the extent to which the entity is publicly funded; and
4.  the degree of government control exerted over the entity.

Applying these factors, the Court found that the IHSA was not a subsidiary body - in fact, it pointed out that the BGA failed to identify any particular public body to which the IHSA was subsidiary.

The Court also rejected the BGA's argument that the IHSA performed a governmental function for public bodies that would make its records subject to FOIA. 

Post Authored by Julie Tappendorf




 

PAC Finds 3 Websites Are Not “News Media” Under FOIA

We reported last week on an advisory opinion from the Public Access Counselor of the Attorney General (PAC) that found a local blog to be a member of the “news media’ under FOIA.  A reader of this blog forwarded two other recent advisory opinions where the PAC found websites were not be members of the “news media." We wanted to share these advisory opinions because they further guidance to public bodies on the factors they should consider when determining if a blog or other website functions like a member of the “news media” for purposes of FOIA.

In 2016 PAC 4469, a municipality had deemed two websites to be recurrent requesters under FOIA. The websites claimed they were exempt from the "recurrent requester" provision of FOIA because they were news media since they regularly published findings from FOIA requests with commentary for residents. The websites argued they were one of the only ways for residents to obtain this type of news because there was no local newspaper in the area. The websites furnished copies of their postings, a copy of press credentials issued to their publisher, and documentation that their publisher had a degree in mass communications as evidence that they should be considered part of the “news media.”

The municipality rejected the websites' arguments after viewing the websites’ credentials and finding that they were not members of the “news media” under Section 2(f) of FOIA, so were not exempt from the definition of “recurrent requester” under Section 2(g) of FOIA.

The PAC held that, in order for a self-published website to be considered “news media” under FOIA, the website must do more than simply disseminate information, stating its reasoning as follows:

Merely disseminating information or criticism electronically through a website, or via e-mail, does not meet the statutory definition of “news media.” If it did, then any person who chose to post an opinion or comment on a matter of public interest electronically would become a news medium, which was clearly not the intent of the General Assembly when it enacted the exception.

The PAC also reiterated the rule that an individual or entity that self-publishes information on the internet must demonstrate some adherence to recognized journalistic standards such as editorial oversight or the creation of original content in order to be considered “news media” under FOIA.

The PAC noted that the websites’ content consisted of links to public records obtained through FOIA requests and court files, and links to other news publications.  The PAC also cited the fact that the websites did not post original content, nor did they credit particular authors for the material that was posted.  Due to the lack of editorial oversight and original content, the PAC found that the websites did not resemble traditional news outlets. The PAC also found that the press credentials obtained by the websites’ publisher did not demonstrate a connection with traditional news media, and that the publisher’s degree in mass communications did not, by itself, demonstrate that the publisher was a part of a news outlet.  As such, the PAC concluded that the websites were not members of the “news media” under FOIA and were not exempt from being designated as recurrent requester.

In 2015 PAC 34653, the PAC found a crime mapping website was also not a member of the “news media” under FOIA. The website had requested that a county sheriff’s office send the website crime data on a daily basis.  The county sheriff refused, but offered to send the website crime data on a monthly basis instead.  The website declined, and began submitting FOIA requests on a daily basis.  Because of these numerous requests, the sheriff’s office designated the website as a recurrent requester.  The website appealed to the PAC arguing that they were a member of the “news media” exempt from being classified as a recurrent requester.

The website claimed it provided highly localized crime news data from a variety of sources, that its data had been published in police blotter sections of print news papers, that it had over a million subscribers to its personalized crime alert email service, and that it regularly provided crime data to other media organizations. The website argued that it was news service because it provided free crime information to visitors, sold crime data to corporate media clients, and because they edited the data sent to its subscribers by classifying the crimes in the email updates.

The PAC once again stated that simply disseminating information electronically does not meet the definition of “news media,” and that there must be some adherence to recognized journalistic standards similar to that of traditional media.  The PAC found that the personalized crime updates that the website sent to its subscribers was evidence that the website existed for a commercial purpose, rather than existing to disseminate news of interest to the public at large. The PAC also found that the essential product of the website was the compilation of data, as opposed to original content compiled by journalists using recognized journalistic standards. The PAC held that the website was simply repackaging existing data for particular users based on their location, and therefore lacked the essential components necessary to be considered “news media” under FOIA.

Post Authored by Kurt Asprooth, Ancel Glink
 

Avoiding Legal Pitfalls in Hiring Interns

From Ancel Glink’s sister blog, The Workplace Report:  School is Out, Interns are In

School’s out for the summer, which means one thing for employers: it’s time to hire interns. What’s not to love about interns? Employers get students who are eager to prove themselves to work for free. All of the tedious tasks that no one wants to do can be dumped onto an intern.

There is, however, one thing not to love about hiring an intern: a lawsuit. Gone are the days where employers could basically hire an employee for free and call that person an intern. The Department of Labor has taken a more critical look at internship programs and has set relatively strict requirements in order for a worker to be labeled as an unpaid intern.

The Department of Labor has established the following 6 requirements for any unpaid internship program: 

  1. The internship must provide training that would be similar to what an intern would receive in an educational environment;
  2. The internship must be for the benefit of the intern;
  3. The intern must not displace a regular employee;
  4. The employer must derive no immediate advantage from the intern, and may actually have its operations impeded;
  5. The internship should be for a fixed duration, and the intern is not necessarily entitled to a job at the conclusion of the internship;
  6. Both the employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

If all of these requirements are met, then the Fair Labor Standards Act, which requires employees to be paid minimum wage, is not triggered, and an intern does not need to be paid. 

As these six requirements show, internships must provide educational experiences and not just be a cheap source of labor for an employer. Therefore, employers may want to think twice about assigning interns menial tasks that can be performed by employees.

Before you hire an intern, you may want to contact an experienced attorney to review your internship program to ensure that it is in compliance with the law.

Original Post Authored by Matthew DiCianni, Ancel Glink
 

Officers Challenge Police Department Ban on Tattoos

In 2015, the Chicago Police Department issued an order requiring all police officers on duty or otherwise "representing" the police department to cover all tattoos, either with clothing or cover-up tape. The department's stated rationale was to "promote uniformity and professionalism." 

Shortly after the order was issued, three officers sued the City, claiming that the department's order violated their right to free speech. The district court dismissed the lawsuit, and the officers appealed to the 7th Circuit Court of Appeals. While that appeal was pending, the City was also subject to a union grievance challenging the same department order. That grievance went to arbitration, and the arbitrator ruled that the order violated the collective bargaining agreement. As a result of the arbitrator's ruling, the City revoked the order.

The 7th Circuit issued its ruling yesterday, on the officers' appeal of its First Amendment challenge to the department order. The 7th Circuit did not rule on the substance of the appeal since the City had already revoked the challenged order. Instead, the Court remanded the case back to the district court with instructions to vacate its ruling in favor of the City. Medici v. City of Chicago (7th Cir., May 10, 2017).

Although the Court did not expressly rule on whether the tattoo ban violated the First Amendment, language in the decision about the broad scope of the ban, the officers' rights of free expression, as well as the instructions to the district court to vacate its ruling in favor of the City, suggest that the 7th Circuit may have ruled against the City had it reached the merits of this case.

Post Authored by Julie Tappendorf
 

City Residency Requirement for Public Safety Employees Does Not Violate Due Process

Milwaukee's City Charter previously required all city employees to live within city limits. But, in 2013, the Wisconsin state legislature passed a law prohibiting local governments from imposing residency requirements as a condition to employment. The statute contains an exception that allows local governments to require law enforcement, fire, and emergency personnel to live within 15 miles of the local government employer. When Milwaukee refused to follow the statute, the police association filed suit against the City, arguing it could not enforce the residency requirement, and the Wisconsin Supreme Court ruled in the association's favor.

After the City lost this first lawsuit, it amended its City Charter to conform to the state law and to require only public safety personnel to live within 15 miles of the City limits. The police association again filed suit against the City, this time to claim that the affected employees have a vested right to live outside of the City, and that the City's amendment to its Charter violated the employees due process rights.  This time, the court ruled against the police association, finding that the City Charter amendment simply followed state statute. The court rejected the claim that employees have a "vested right" to live wherever they want, and upheld the City Charter amendment requiring public safety personnel to live within 15 miles of the City limits.


Post Authored by Julie Tappendorf
 
 
   
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