In 2015, Charles Green submitted a FOIA request to the Chicago Police Department seeking all closed complaint register files (CRs) for all Chicago police officers. After CPD failed to respond to the request, Green filed a lawsuit seeking an order ...

Municipal Minute

Court Finds Injunction Relieved Public Body From Releasing Records Under FOIA

In 2015, Charles Green submitted a FOIA request to the Chicago Police Department seeking all closed complaint register files (CRs) for all Chicago police officers. After CPD failed to respond to the request, Green filed a lawsuit seeking an order directing CPD to release the requested files. However, the requester's lawsuit was continued, because an injunction entered by another court prohibited CPD from releasing any CR files that were older than four years from the date of any FOIA request. That injunction was later vacated in 2016. In 2020, the circuit court ruled in favor of the requester and ordered CPD to turn over all CR files dated from 1967 to 2011. CPD appealed the decision, arguing that the circuit court improperly ordered CPD to produce CR files that were subject to an injunction at the time that they were requested and that the court erroneously rejected CPD’s claim that producing 48 years of closed CR files would be unduly burdensome. 

On appeal, the appellate court in Green v. Chicago Police Department agreed with CPD that when CPD denied Mr. Green’s FOIA request for CR records in November 2015, it was required to follow the terms of a lawful injunction that prohibited CPD from releasing the records subject to the injunction. Further, the appellate court determined that it was irrelevant whether the injunction was subsequently vacated, because at the time CPD received the FOIA request, CPD was following a lawful injunction to avoid disclosing the CR records. Because the CPD received Mr. Green’s FOIA request for responsive CR records while an injunction was in place, the court concluded that CPD did not improperly withhold the records under FOIA. 

Because the court ruled in CPD's favor on the first issue, it did not address the second argument raised by CPD - that the court should have allowed CPD to raise an unduly burdensome claim as a defense in litigation even if it had not made that claim in response to the FOIA request. Public bodies should make sure they respond within the statutory time frame even if they intend to raise an unduly burdensome claim to avoid an argument that they waived that claim if the requester files a lawsuit. 

Post Authored by Eugene Bolotnikov, Ancel Glink


Illinois Governor Approves Election Code Changes Regarding Mail and Curb-Side Voting

The Governor approved the first Public Act of the 102nd General Assembly last week in P.A. 102-001. This new law amends various provisions of the Election Code, including the following:

  • The State Board of Elections is authorized to release federal funds under the Help America Vote Act to local election authorities maintain secure collection sites for mail-in ballots.
  • Election authorities are authorized to establish curb-side voting during early voting and on election day.
  • Election authorities are required to accept any vote by mail ballot, including those with insufficient or no postage. 
  • Election authorities that maintain collection sites for mail-in ballots must ensure the sites are secured by locks that can only be opened by election authority personnel.
  • Election authority personnel must collect all ballots from collection sites at the close of business each day and note the day the ballot was returned. 

The new law authorizes the State Board of Elections to establish guidelines for the security of these collection sites.

Court Questions Claim that Review of 28,000 Records is Unduly Burdensome in FOIA Case

In 2018, a requestor submitted a FOIA request to the Chicago Board of Education seeking documents related to the requestor’s racial discrimination claims made between 1999 and 2005. After identifying approximately 28,000 pages of records that would need to be reviewed for potential exemptions, the Board asked the requestor to narrow his request, which is permitted by FOIA. When the requestor refused, the Board denied the FOIA request as unduly burdensome. The requester sued, and the circuit court ruled in favor of the Board. The requestor then appealed.  

In Greer v. Board of Education of the City of Chicago, the First District Appellate Court reversed the ruling in favor of the Board, finding that the "unduly burdensome" exemption was not grounds for summary judgment because there were issues of material fact regarding whether the requestor’s request was unduly burdensome. Since the Board had already identified records that were apparently responsive to the FOIA request, the appellate court noted that the Board would not face a great burden identifying responsive records. The appellate court also questioned the Board’s assertion that redacting exempt information would take 86 days. The appellate court also disagreed with the Board’s claim that its burden of reviewing the 28,000 records outweighed the public’s interest in the requestor’s racial discrimination claims, noting that allegations of racial discrimination by public bodies, even those pertaining to a single employee, inherently constitutes a matter of public concern in which the public has a substantial interest. 

Because there were issues of material fact that left room for doubt on the Board's claim that it would be unduly burdensome to review 28,000 records, the court reversed the circuit court's ruling and sent the case back to the circuit court, ordering the Board to examine the 28,000 responsive documents to identify those that might be exempt.

This case is concerning to public bodies on what constitutes "unduly burdensome" - if reviewing 28,000 records for applicable exemptions and redactions isn't unduly burdensome, it makes you wonder what is. Many readers know we have reported on a number of "unduly burdensome" cases and PAC opinions in the past, and this case may just be an outlier. Public bodies should make sure they provide an estimate of the number of records that would require review in the initial response to a requester asking the requester to narrow the request and estimate the manpower necessary to tackle that review - although that didn't seem to make a difference in this case, it has been relevant in other cases and PAC opinions on the "unduly burdensome" issue.

Post Authored by Eugene Bolotnikov & Julie Tappendorf, Ancel Glink

      

U.S. Supreme Court Finds First Amendment Case Against Trump "Moot"

Over the past few years, we have kept readers informed about cases involving elected officials and their use of social media. You may recall the case in Virginia where a court of appeals determined that a county commissioner's blocking of users from her Facebook page was a First Amendment violation. The most talked about case involving an elected official's use of social media, however, was the case filed by the Knight First Amendment Institute against then-President Trump alleging that his blocking of users who criticized him on Twitter was a violation of the First Amendment. That case made its way to the Second Circuit Court of Appeals which issued a ruling in 2019 finding then-President Trump in violation of the First Amendment. We reported on that ruling here. We also reported when then-President Trump appealed the court of appeals ruling to the U.S. Supreme Court. 

The Supreme Court just issued a ruling today sending the case back to the Second Circuit with instructions to dismiss the case as "moot." The case (now named Joseph R. Biden, Jr. v. Knight First Amendment Institute at Columbia University, et al. because of the change in administration) is a short read. The U.S. Supreme Court issued a two sentence opinion vacating the judgment of the Second Circuit and remanding it back to the court of appeals with instructions to dismiss the case as moot. Justice Thomas filed a separate concurring opinion (12 pages), arguing that although he agreed that the case should be vacated as moot because of the change in administration, he questioned whether the First Amendment applies to a platform where a private company (in this case, Twitter) has "unbridled control" of user accounts. 

What's interesting is that after the change in administration, both sides (the Department of Justice and the Knight First Amendment Institute) had argued that the U.S. Supreme Court should declare the case "moot" but for different reasons. The DOJ argued the case was moot because of the change in administration. The Knight First Amendment Institute also argued the case was moot but because Twitter had permanently banned Trump from its platform. 

Podcast Ep. 51: Parliamentary Procedures for Newly Elected Officials

Ancel Glink has just released Episode 51 of its Quorum Forum Podcast today: "Parliamentary Procedures for Newly Elected Officials" just in time for next week's municipal elections. More information below:

Episode 51: Parliamentary Procedures for Newly Elected Officials

Newly-elected and not-so-newly elected officials are preparing for business after the local government elections. That’s why Ancel Glink’s Steve Mahrt and Eugene Bolotnikov joined the Illinois Association of County Board Members to review parliamentary procedures and other helpful tips for orderly local government meetings. 

If you prefer video to audio, you can watch the training on YouTube here.

What strategies does your organization use to promote civility at meetings? Email us at podcast@ancelglink.com!