Atlas Academy FOIA OMA Presentation - 5-14-16.PPTX

Annual Trustee WorkshopFOIA, OMA, & the Law Enforcement

Requests

May 14, 2016Crete Public Library

Gregory T. Smith and Carmen P. Forte, Jr.KLEIN, THORPE AND JENKINS

20 N. Wacker Drive, Suite 1660Chicago, Illinois 60606

312-984-6400

The Open Meetings Act( 5 ILCS 120/1 et seq.)

OVERVIEWPOLICYDEFINITIONSTYPES OF MEETINGSMEETING TIME AND PLACEPUBLIC NOTICE OF MEETINGSAGENDA REQUIREMENTSCLOSED MEETINGSRECORDKEEPINGTHE PUBLIC’S RIGHT TO PARTICIPATESUMMARYQUESTIONS

Klein, Thorpe & Jenkins, Ltd. .

POLICY

The actions of Public Bodies are to be taken:1. At a public meeting, and2. Openly.

Intent of the Act is protection of a citizen’s right to know.

Exceptions to the Act are narrowly construed.

Klein, Thorpe & Jenkins, Ltd. 3

DEFINITIONS

What is a Public Body? The Board of any municipality, school district, park district,

community college, etc.; All committees and subcommittees of a Board;

What is a Meeting? Any gathering, whether in person or by video or audio

conference, telephone, electronic means (electronic mail-chat-instant messaging) or other means of contemporaneous communication of:• A majority of a quorum• Of a Public Body• Held for the purpose of discussing public business

Klein, Thorpe & Jenkins, Ltd.

DEFINITIONS

● A Majority of a Quorum: Seven (7) member Board – quorum is four (4) and a

majority of the quorum is three (3). Committee of three (3) – quorum is two (2) and a

majority of the quorum is two (2).

Exception – Five (5) member Board –quorum is three (3) and a majority of a quorum is two (2): The Act does not apply to a meeting of a majority of a

quorum – two (2) and only applies to a meeting of a quorum of members – three (3).


TYPES OF MEETINGS

Regular Meetings

Special Meetings

Reconvened Meetings

Emergency Meetings


MEETING TIME AND PLACE

Must be at specified times and places.

Convenient to the public.

No meeting on a legal holiday unless regular meeting day falls on that holiday.


PUBLIC NOTICE OF MEETINGS Public notice of the schedule of regular meetings to be

given at the beginning of each calendar or fiscal year listing times and places of those meetings. Post at principal office and on website, if full-time

staff maintain; Notice to news media who filed request for notice.

Agenda of regular meeting must be posted 48 hours in advance of meeting (at principal office and location of meeting).


PUBLIC NOTICE OF MEETINGS

Public notice of any special meeting, rescheduled regular meeting, or any reconvened meeting shall be given at least 48 hours in advance. The notice must include the agenda for the meeting. Public notice for reconvened meetings doesn’t apply when

the meeting was open to the public and is to be reconvened within 24 hours, or an announcement of the time and place of the reconvened meeting was made at the original meeting and there is no change in the agenda.

Public notice of any emergency meeting must be given as soon as practicable.


AGENDA REQUIREMENTS

If the Public Body has a website maintained by a “full-time staff,” the agenda for any regular meeting must be posted on it.

At regular meetings, an item not listed on the agenda can be considered, but cannot be acted upon. Only items listed on the agenda can be considered

or acted upon at special meetings.


CLOSED MEETINGS

Closed meeting only if specific exception applies (105 ILCS 120/2(c)).

Must be closed in the manner required by law: Motion citing specific exception; Roll call vote – majority of Public Body.

In closed session, can only discuss the subject of the motion.

No final action may be taken in a closed session.


CLOSED MEETINGS

Exceptions which allow for a closed meeting include: The appointment, employment, compensation, discipline, performance, or

dismissal of a specific employee. Collective negotiating matters. The selection of a person to fill a public office. The purchase or lease of real property for the use of the public body. Setting a price for the sale or lease of public property Security procedures. Pending, imminent, or probable litigation. The establishment of reserves or settlement of claims. Discussion of minutes of lawfully closed meetings.


RECORDKEEPING Written minutes of all meetings must be kept to include:

1. Date, time and place of meeting;2. Members of the Public Body recorded as present or absent and whether

physically present or present by video/audio conference;3. A summary of the discussion on all matters proposed, deliberated or

decided, and a record of any votes taken. Approve open meeting minutes within 30 days or at second

subsequent meeting, whichever is later. Make approved minutes available to the public within 10 days

after approved. Post minutes of governing body’s regular meeting on website

at least 60 days after approval.


RECORDKEEPING

In addition to minutes, a verbatim record must be kept of all closed meetings by video or audio recording.

Each recording must be kept for minimum of 18 months.

Recording may be destroyed after 18 months if destruction is approved by the Board and there are approved minutes.


THE PUBLIC’S RIGHT TO PARTICIPATE

The public must be permitted to address public officials. The Public Body should adopt rules to permit this.

Recording of Meetings: Generally, any person may record the proceedings of

open meetings by tape, film or other means. Public Body should adopt rules.


SUMMARY

Openness in government important.

The essential concept and requirements of the Open Meetings Act:

1. Meetings to be open.2. Public notice to be given.3. Written minutes to be kept.4. Verbatim record of closed meetings.5. Posting on the website.


Quiz Time

SCENARIO #1

At public meetings, the Library always asks a person to first state their address before addressing the public body at a public meeting. This is to ensure, among other things, that the person is a member of the community and to be able to follow up with that person at a later date if necessary.

One day at a meeting, a man objects to giving his address but wishes to make a statement. Based on your general practice, can you prevent the man from making his statement unless he states his address for the record?

ANSWERS

A) Yes.

B) Yes, but only if the Board has adopted formal rules requiring speakers to state their address.

C) No.

Correct Answer: Probably C

BINDING PAC OPINION 14-009, ISSUED SEPTEMBER 4, 2014

The PAC held that a public body may NOT have a rule that makes a person’s right to comment in an open meeting contingent on where the person lives.

OMA states: “any person shall be permitted the opportunity to address public officials.” (5 ILCS 20/2.06(g)): There is no territorial requirement that a person must live in the

community. However, the PAC does note that a person’s ability to address

public officials can be limited by other “established and recorded rules” of the public body. (5 ILCS 20/2.06 (g)): But the PAC opinion explicitly forbids rules that make a person’s

ability to speak at a public meeting contingent on where they live based on concerns of free speech.

BINDING PAC OPINION 14-009, ISSUED SEPTEMBER 4, 2014

The opinion of the PAC is not very well supported; however, the ruling is intended to avoid a chilling effect on free speech.

It should be noted that when considering the public policies of OMA and FOIA together (as courts sometimes do), requiring a speaker to produce a home address does not make sense.

FOIA exempts disclosure of home address as private information. Options for Public Bodies:

Make disclosure of address optional Eliminate requirement for stating home addresses altogether Request speaker identify whether or not they are a resident

SCENARIO #2

A Library Board has a formal rule that requires members of the public who wish to speak at a public meeting to submit a “Request to Speak” in writing five (5) business days prior to the meeting.

The same man from Scenario #1 still wants to speak, but he submitted a “Request to Speak” only one day before. Can the Board prohibit him from speaking due to violation of the prior notice rule?

ANSWERS:

A) Yes, rules are rules.

B) No.

C) Only if he asks very nicely.

Correct Answer: B

PUBLIC ACCESS OPINION 14-012,ISSUED SEPTEMBER 30, 2014

Section 2.06(g) of OMA provides that “any person shall be permitted an opportunity to address public officials under the rules established and recorded by the public body.”

Public bodies may promulgate reasonable “time, place, and manner” regulations that are necessary to further a significant governmental interest.

The PAC determined that requiring written notice “five working days” before a meeting means that a person must submit his or her request before the public body is required to post its meeting agenda (48 hours prior).

Without any explanation of why five working days’ advance notice is reasonably necessary to protect a governmental interest, this rule would unreasonably restrict the public from exercising their statutory right to address the public body.

SCENARIO #3

The Library Board of goes into executive session pursuant to Section 2(c)(1) of the Open Meetings Act to discuss the “appointment, employment, compensation, discipline, performance or dismissal” of a specific employee of the library. While in executive session, a Board member, in addition to discussing the merits of promoting a specific employee, asks whether the promotion is included in the budget. Another Board member starts discussing staffing levels in general, and whether the library would be able to hire new employees next year based on the budget. The library President stops the discussion and asks the library Attorney whether they can talk about staffing levels in the context of the library’s budget. How should the Library Attorney respond?

ANSWERS

A) Advise the Board that general budgetary discussions, even as they relate to employees, are beyond the scope of the OMA exception.

B) Allow them to talk about the budget provided it is limited to employment decisions.

C) Walk out of the room.

ANSWER: A

PAC Opinion 15-003, issued March 20, 2015 & PAC Opinion 15-005,

issued August 5, 2015

The PAC emphasized that Section 2(c)(1) of OMA is specifically limited by the language “specific employees of the public body.”

This exception cannot be used to discuss general fiscal matters, even if they directly or indirectly impact employees of the public body.

This also applies generally to all OMA exceptions, which are interpreted strictly. PAC No. 15-003 also held that OMA exceptions would not

include discussion about the general issues concerning the disposal of publicly-owned property.

Scenario #5

The Library Board goes into executive session pursuant to Section 2(c)(12) of the Open Meetings Act to discuss the terms of a potential settlement agreement for pending litigation. During the executive session, the Board agrees that the attorney should try to settle the case for $150,000. The attorney then meets with the plaintiff, opposing counsel and the judge in a pretrial status meeting, where the plaintiff agrees to a settlement of $150,000 and signs the agreement drafted by the attorney in front of the judge. During the next public Library Board meeting, when the settlement agreement is put up for a vote of final approval, a majority of the Board members vote against the settlement agreement even though they initially agreed to the terms in the executive session.

Can the Board members do this?

Answers

A) No, because the Board agreed on it initially with the attorney, who relied on that when negotiating the settlement.

B) No, because the agreement was signed by the plaintiff in front of a judge.

C) Yes, the Board members are not bound to vote on the final action the same way they did when giving direction in an executive session.

Answer: C

Meade v. The City of Rockford 2015 IL App (2d) 140645 (April 8, 2015)

The Illinois Appellate Court held that City Council members who gave direction to the City Attorney during an executive session were not required to vote consistently with the previous direction when formal action was taken. Their initial comments in favor of the settlement

were not binding judicial admissions. The City could not be bound by the settlement

agreement because it required a formal majority vote by the Council.

Meade v. The City of Rockford 2015 IL App (2d) 140645 (April 8, 2015)

BUT! The Court went out of its way to point out municipal bodies, like other litigants, may be sanctioned pursuant to Illinois Supreme Court Rule 219 for conduct that demonstrates a willful disregard for the orders and deadlines set by the trial court (including trial dates) or that unnecessarily and vexatiously multiplies the cost of litigation borne by the other party. The Court determined that, in cases similar to this one,

a trial court could sanction the City for such actions.

Freedom of Information Act(5 ILCS 140/1 et seq.)

POLICYREQUIREMENTSDESIGNATED FOIA OFFICERSPROCEDURECOMMERCIAL PURPOSERECURRENT REQUESTORSVOLUMINOUS REQUESTEROFTEN USED EXEMPTIONSDENIAL PROCEDUREPUBLIC ACCESS COUNSELOR

PENALTIES


POLICY

Presumption in favor of openness with regard to public records. All records in the custody or possession of a public

body are presumed to be open to inspection or copying.

A public body that asserts that a record is exempt from disclosure has the burden of proving by clear and convincing evidence that it is exempt.


REQUIREMENTS

FOIA requires inspection and copying of public records, except for those exempted by the Act.

It does not require staff to answer questions that are part of a document request or an oral request.

It does not require staff to create a new record to comply with a request.


DESIGNATED FOIA OFFICERS

A Public Body must designate one or more officials or employees to act as Freedom of Information Officer(s).

Freedom of Information Officers must successfully complete an annual FOIA electronic training course prepared by the PAC.

All designated OMA employees, officers or members must annually complete a refresher course.

New Freedom of Information Officers must complete the training course within thirty (30) days after assuming the position.

PROCEDURE

A request must be in writing. A Public Body cannot require use of its standard form. A Public Body cannot require the person making the

request to specify the purpose for the request, except to determine whether the records requested are for a commercial purpose or whether to grant a fee waiver.

A Public Body may honor oral requests, but it is not required to.

A request can be delivered by any means. Personal delivery, mail, telefax, or other.


PROCEDURE

Upon receipt, the request is to be delivered to the Public Body’s Freedom of Information Officer. A Public Body must designate one or more officials or employees to act as

Freedom of Information Officer(s). The Freedom of Information Officer must receive requests submitted to the public

body, ensure that the public body responds in a timely fashion, and issue responses.

The Freedom of Information Officer then must: Note the day of receipt. Compute the response timeline, and make a written notation on the written

request. Maintain an electronic or written copy of the request, including all documents

submitted with it, until the public body responds. Keep the original request, a copy of the response, and a record of all

communications associated with the request.

PROCEDURE

A Public Body must comply with or deny a request within five (5) business days. Extension of 5 more days in limited cases.

Copying charges are limited:The first 50 pages must be provided at no charge.Remaining black and white copies = 15¢/page.Color or non-letter/legal size = no more than actual cost.Electronic records = actual cost of the recording medium.Certifying a copy of a record = $1.00. May not charge for the costs of any search and review of the records

or other personnel costs associated with reproducing the records (except for commercial requests).


PROCEDURE

Must provide in electronic format specified by the requester, if feasible.

If it is not feasible to furnish in the specified electronic format, then the public body shall furnish it in the format in which it is maintained by the public body, or in paper format at the option of the requester.

Public bodies are also not required to copy and make available for public inspection a public record that is published on its website. See 5 ILCS 140/8.5.

COMMERCIAL PURPOSE

“Commercial Purpose” - the use of any part of a public record in any form for sale, resale, or solicitation or advertisement for sales or services.

Requests made by the news media and non-profit agencies, as well as any scientific or academic organizations, are not commercial purposes when the principal purpose of the request is:

(1) To access and disseminate information concerning news and current or passing events;

(2) For articles of opinion or features of interest to the public; or (3) For the purpose of academic, scientific, or public research or education.


COMMERCIAL PURPOSE

Within 21 working days after receiving a commercial request, the public body must do one of the following: Provide the public records. Deny the request due to exemptions. Treat the request as unduly burdensome. Provide an estimate of the time required to provide the public records

requested and an estimate of the fees to be charged, which the public body can require to be paid before copying.

The first initial 8 hours spent by personnel searching and retrieving requested records are still free of charge, but a Public Body may charge up to $10 per hour for each additional hour spent.

The actual cost of retrieving and transporting public records from an off-site storage facility can be charged to the commercial requestor.


RECURRENT REQUESTORS

Persons who have within the past 12 months submitted 50 requests or more, 15 requests within a 30-day period, or 7 requests within a 7 day period. Excludes requests made by the news media and non-profit agencies, as well as

any scientific or academic organizations, when the principal purpose of the request is (1) to access and disseminate information concerning news and current or passing events; (2) for articles of opinion or features of interest to the public; or (3) for the purpose of academic, scientific, or public research or education

One request may identify multiple records to be inspected or copied.

A Public Body must inform the requestor that it is being treated as a recurrent requestor within 5 business days, but has twenty-one (21) business days to respond to the request.


VOLUMINOUS REQUEST

“Voluminous request” is a request that (1) includes more than 5 requests for more than 5 different categories of records or a combination of individual requests that total more than 5 different categories of records in a period of 20 business days; or (2) requires the compilation of more than 500 letter or legal-sized pages of public records unless a single requested record exceeds 500 pages.

Excludes requests made by the news media and non-profit agencies, as well as any scientific or academic organizations, when the principal purpose of the request is (1) to access and disseminate information concerning news and current or passing events; (2) for articles of opinion or features of interest to the public; or (3) for the purpose of academic, scientific, or public research or education.

As with commercial requests and recurrent requesters, voluminous requests do not apply to requests made by news media and not-profit, scientific or academic organizations.

VOLUMINOUS REQUEST PROCEDURE

• A Public Body must inform the requestor that the request is being treated as a voluminous request within 5 business days, state the reasons why, and provide the requestor 10 business days to amend his or her request.

• If the request continues to be voluminous or the requestor fails to respond to the public body’s initial response, the public body shall respond to the voluminous request within 5 business days after :▪ (1) it receives the requestor’s response; or ▪ (2) the final day for the requestor to respond to the initial response.

The public body can extend the time to respond by ten (10) business days

VOLUMINOUS REQUEST NOTICE

Notice to requesters: If a request is determined to be a “voluminous request” by the public body, the

public body must notify the requestor within five (5) business days that the request is being treated as a voluminous request and provide the requester ten (10) business days to amend his or her request in such a way that the public body will no longer treat the request as a voluminous request. The requestor is under no obligation to modify the request, however.

The public body’s initial response (within 5 days) to a voluminous request shall contain one of the following: Denial of the request; Provide the records requested; Notify the requestor that the request is unduly burdensome and extend an

opportunity to the requestor to attempt to reduce the request to manageable portions;

Extend the time to respond by ten (10) business days; or Provide an estimate of the fees to be charged. The public body may require the

requestor to pay the fees in full before copying the requested documents.

VOLUMINOUS REQUEST NOTIFICATION

The initial five (5) day notification must inform the requester of the following: the public body is treating the request as a voluminous request; the reasons why the public body is treating the request as a voluminous request; that the requester has ten (10) business days to amend the request in such a way that the

public body will no longer treat the request as a voluminous request; that if the requester does not respond within ten (10) business days or if the request

continues to be a voluminous request even after an attempted amendment, the public body will respond to the request and assess any fees the public body may charge under FOIA

that the public body has five (5) business days after the receipt of the requester’s response or the last day for the requester to amend his or her request, whichever is earlier, to respond to the request;

that the public body may extend its time to respond up to an additional ten (10) business days;

that the requester has a right to a review of the public body’s determination by the PAC and provide the contact information of the PAC; and

if the requester fails to accept or collect the responsive records, the public body may still charge the requestor applicable fees and the requestor’s failure to pay the fees will be considered a debt due and owing to the public body.

PROCEDURE The Public Body must provide document(s) in

electronic format specified by the requestor, if feasible.

If it is not feasible to furnish in the specified electronic format, then the Public Body shall furnish it in the format in which it is maintained by the Public Body, or in paper format at the option of the requestor.

Fee may be waived or reduced if requestor states purpose and that it is in the public interest (health, safety and welfare or legal rights of general public, not personal or commercial benefit).


PROCEDURE Exempt: Exempt records should not be provided.

Non-exempt: Non-exempt records should be provided, subject to redaction of exempt information.

Unduly burdensome: Requests for records in a category will be complied with unless unduly burdensome, i.e., the request cannot be narrowed and the burden on the Public Body outweighs the public interest in the information. An opportunity must be given for the requestor to

narrow the request.


OFTEN USED EXEMPTIONS

Private information exemption 7(1)(b). Narrow Exception Examples: social security numbers, employee ID numbers,

drivers license numbers, personal financial information, passwords or access codes, biometric identifies, home or personal telephone numbers, personal email addresses



Personal privacy exemption 7(1)(c). Exempt if disclosure would constitute “a clearly unwarranted

invasion of personal privacy,” which means that disclosure of the information would be “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.”

Exemption Examples: names of minors, dates of birth, signatures, marital status, medical/insurance information, specific reasons employees take time off

Not Exempt: Names, gender, ethnicity, race, things that “bear on” public duties (resume and job application, employment contracts, timesheets, day off requests, administrative evaluations of employees, complaint letters)

FOIA: OTHER ISSUES

Personnel files Stern v. Wheaton-Warrenville Community Unit

School District 200, 233 Ill. 2d 396 (2009) Settlement agreements


Preliminary draft/notes exemption. 7(1)(f). Bid documents exempt until an award or

final selection is made. 7(1)(h). Plans – architects, engineering, technical.

7(1)(k). Closed session meeting minutes. 7(1)(l).

DENIAL PROCEDURE

Public Body must give written notice of denial stating the specific exemption claimed with detailed facts showing basis for the claimed exemption.

Notice to include names and positions of persons responsible for denial.

Notice to inform person of right to review by the PAC, provide the address and phone number of the Public Access Counselor, and advise of right to judicial review.


PUBLIC ACCESS COUNSELOR

Created as a part of the Attorney General’s office. Review and determine whether documents should

have been disclosed under FOIA. Review and determine whether a Public Body

violated OMA. May also issue advisory opinions to guide public

bodies.


PENALTIES

A Public Body that is late in providing requested documents or an exemption notification waives its ability to later assert that the request is unduly burdensome or to charge for copying costs.

Courts may impose civil penalties between $2,500.00 and $5,000.00 against Public Bodies that willfully and intentionally fail to comply with the Act or otherwise act in bad faith.

The court “shall” award attorney’s fees to requestors who prevail in a FOIA claim brought forth in Circuit Court.


Quiz Time

Scenario #1

You receive a FOIA request asking for the employment application and résumés of the Directors and Assistant Directors of all departments within the library. The FOIA Officer of the library wants to respond by denying the request per Section 7(1)(c) of FOIA because the information contains highly personal information and releasing this information is an invasion of the employee’s privacy. How should the FOIA Officer respond?

Answers:

A) Agree with the FOIA officer that the request should be denied per Section 7(1)(c).

B) Disagree with the FOIA officer because the records are not “personal” and tell her that the records should be released in their entirety.

C) Disagree with the FOIA officer because the resumes “bear on” the employees’ public duties and tell her that the records should be disclosed with any private information redacted, per Section 7(1)(b).

D) Tell the FOIA Officer to pretend she never got the request.

Correct Answer: C

Public Access Opinion 14-015,issued November 24, 2014

The PAC determined that information on employment applications and résumés “bear on” the duties of a public employee because the records detail the education, training and experience that qualify the employee to serve in his or her position.

Even if the information did not “bear on” the employees’ public duties, the PAC still determined that the public’s compelling interest in disclosing a public employee’s credentials to enable the public to access the employee’s qualifications to perform his or her public duties outweighs the employee’s interest in privacy.

Public Access Opinion 14-015,issued November 24, 2014

Section 7.5(q), which exempts disclosure of information prohibited from disclosure under the Personnel Records Review Act, does not prohibit the disclosure of résumés or employment applications.

Section 7(1)(c) does not apply because résumés and employment applications “bear on” the employee’s public duties.

Section 7(1)(f) does not apply because the information on résumés and employment applications is purely factual information and does not reflect a public body’s deliberative process.

Section 7(1)(b) still applies to résumés, however, and redacting private information on résumés is appropriate before disclosing the record.

Scenario #2

The library owns a building that is often rented out for large functions (“Venue”). You get a FOIA request for all contracts related to the public body renting out the Venue in the past 12 months, including the price the Venue was rented for on each occasion. There are several other banquet halls in the area where people can hold events of similar size. You think if this information was public, it could decrease the number of times the Venue was rented out because competitors could under cut the Venue’s rates. Can the requested public records be considered a “trade secret” or “proprietary, privileged or confidential” information and withheld?

Answers:

A) Yes, because the release of this information would cause “competitive harm” to renting the Venue. This information is considered to be a “trade secret” or “proprietary, privileged or confidential” information and can be withheld under Section 7(1)(g).

B) No, financial terms of a contract are not a “trade secret.”

C) No, financial terms of a contract are not “proprietary, privileged or confidential” information

D) Information regarding financial expenditures of a public body are always subject to disclosure and are not “trade secrets” or “proprietary, privileged or confidential” information

Correct Answer : B & C & D

Public Access Opinion 15-002,issued January 23, 2015

The PAC determined that the financial terms of a lease agreement are not considered “trade secrets” or “proprietary, privileged or confidential” information because the terms were not obtained by the public body “from a person or business” as required by Section 7(1)(g), but rather were negotiated between the parties.

Furthermore, financial terms of contracts with public bodies are expressly subject to disclosure under Article VIII, Section 1(c) of the Illinois Constitution of 1970 and Section 2.5 of FOIA.

“All records relating to the obligation, receipt, and use of public funds of the State, units of local government, and school districts are public records subject to inspection and copying by the public.” 5 ILCS 140/2.5.

Scenario #3

If all the information is the same in the last scenario, but the corporate authorities of the municipality (which is a home rule unit) passed the following ordinance before the FOIA request came in:

Notwithstanding the provision of any non-pre-emptive State law, including the Illinois Freedom of Information Act, no officer or employee of the municipality shall knowingly disclose confidential financial or proprietary information relating to the Venue. The Mayor may disclose such information if he or she determines the information will not cause substantial harm.

Is this a valid use of the municipality’s home rule power?

Answers:

A) Yes, it is a valid use of home rule power to regulate a municipality's obligation to disclose records to the public.

B) No, this isn’t something the municipality can regulate.

C) Sure, they can do whatever they want.

Correct Answer: B

Public Access Opinion 15-002,issued January 23, 2015

The PAC noted that the General Assembly did not expressly limit or preempt the exercise of home rule powers in FOIA.

But, the PAC determined the municipality’s ordinance was ineffective to supersede the requirements of FOIA because prescribing conditions for accessing governmental records is a matter of Statewide, rather than local, concern, and therefore does not pertain to the Village’s government and affairs for purposes of the municipality’s home rule powers.

SCENARIO #4

A library enters into a settlement agreement with a previous employee who used to work at the library. She claimed that she was terminated based on her gender. That settlement agreement included a non-disclosure provision because the employee believed she would be subject to harassment in her new workplace if the public found out about the settlement.

Six months after the agreement is entered into, the library received a FOIA request for “any and all settlement agreements the library has entered into in the last year.”

Can the library disclose the settlement agreement its former employee officer due to the non-disclosure provision?

ANSWERS:

A) No, it would be a violation of the non-disclosure agreement and the ex-employee could sue for damages.

B) Yes, all settlement agreements are open to inspection by the public.

C) Yes, but the employee’s name and other identifying information could be redacted under Section 7(1)(c).

Answer: B

PUBLIC ACCESS OPINION 15-004,ISSUED JUNE 17, 2015

A former police officer sued the City of Markham based on her termination from its police department, and the parties settled the claim by entering into a settlement agreement with one another that included a non-disclosure provision.

The PAC noted that Section 2.20 of FOIA states: All settlement agreements entered into by or on behalf of a public body are

public records subject to inspection and copying by the public, provided that information exempt from disclosure under Section 7 of this Act may be redacted.

Therefore, the PAC determined that the settlement agreement was subject to disclosure, but any personal or private information under Sections 7(1)(b) or 7(1)(c) may be redacted.

Non-disclosure agreements are contrary to the express language of Section 2.20 of FOIA and legislative intent. Therefore, these non-disclosure provisions are unenforceable.

PUBLIC ACCESS OPINION 15-004,ISSUED JUNE 17, 2015

Former police officer wanted her name, as well as information about her termination and the lawsuit, redacted as personal information, per Section 7(1)(c), because identifying her could lead to an uncomfortable work environment at her new job.

PAC held that the former police officer’s name and details regarding her termination could not be redacted based on 7(1)(c) Public has right to know where/to whom funds are going. Since she was a public official, information about her termination,

the lawsuit and the settlement directly related to public duties. Therefore it was not an unwarranted invasion of personal privacy.

SCENARIO #5

The Library receives a request for “all Human Resource records related to employees in the Library in the past 5 years.”

After looking into the matter, you determine that this would amount to about 1,500 pages of records. Not only is it a large amount of physical records, but the FOIA Officer would have to spend countless hours redacting private information from the documents.

Do you have to answer this FOIA request?

ANSWERS:

A) Yes, but you may treat it as a “voluminous request.”

B) Yes, and it must be given to the requester within five (5) business days.

C) No, it would be unduly burdensome. D) No, because what on earth could the

requester need all of that information for?

ANSWER: A

Since the responsive records are over 500 pages of documents, per the new voluminous request provision of FOIA, you may treat the request as a voluminous request and request an additional 10 days to respond to the request (assuming you follow the proper procedure outlined above)

PATRON CONFIDENTIALITY AND THE PATRIOT/FREEDOM ACT

Outline:Library Records Confidentiality ActFISA ActUSA Patriot/USA Freedom ActSubpoenasWarrantsFISA Orders

THE LIBRARY RECORDS CONFIDENTIALITY ACT

Under the Library Records Confidentiality Act, 75 ILCS 70/1, registration and circulation records of a library are confidential information. They may not be made public except:(1) by court order; or (2) if requested by a sworn law enforcement officer who represents that it is an emergency and there is probable cause of imminent danger of physical harm.

The Confidentiality Act does not prohibit libraries from publishing statistical reports regarding registration and circulation as long as no individual is identified in the reports.

Purpose of the Act

To protect the privacy of library patrons by prohibiting the release of registration and circulation records held by libraries except in a few limited situations.

Prohibitions in the Act

The Library Records Confidentiality Act prohibits disclosure of two classes of confidential information held by libraries: 1) registration records, and 2) circulation records.

The law prohibits the publication or dissemination, in any form, of registration records and circulation records to the public.

Records Covered by the Act

“Registration records” are defined as any information a library requires a person to provide in order for that person to become eligible to borrow books and other materials.

“Circulation records” includes all information identifying the individual borrowing particular books or materials.

Employees Covered by the Act

All library employees, from clerks to the Director, must obey the Act and ensure that registration and circulation records are not published or disseminated to the public. There is no defense to violations of the law due to inadvertence or negligence; any publication or disclosure of confidential information is a violation of the Act.

Exceptions to Confidentiality Provision

There are two situations in which a library may release information contained in registration records and circulation records:

First, pursuant to a court order. Second, if the information is requested by a law

enforcement officer who represents that it is impractical to secure a court order due to an emergency and the officer has probable cause to believe there may be imminent physical harm.

Emergency Exception in the Act

Pursuant to the emergency exception, a law enforcement officer may only obtain confidential information held by the library that will assist in identifying a suspect, witness, or victim of a crime.

In an emergency a law enforcement officer may not be given any circulation records that would indicate materials borrowed, resources reviewed, or services used at the library.

The law enforcement officer invoking the emergency exception must sign a form acknowledging receipt of the information if requested to do so.

Statistical Reports

The Act specifically allows a library to publish “reasonable statistical reports” regarding library registration and book circulation so long as no individual is identified, and if the library elects to do so.

The Act does not require that a library create such reports.

Complying with the Act - DO

Take your time and ensure that you have all the following information in hand before approving any request for registration or circulation records: The library records sought by the requestor. The name and role of the requestor.

Complying with the Act - DON’T

Disclose records unless you are sure that the request is proper.

Be pressured or rushed by the requestor into producing records until you have completed your analysis.

Produce records in a situation where there is a plausible interpretation of the law that may allow you to withhold the records; in this case seek counsel from your attorney.

Flow Chart

Step 1What type of

information is requested?

Registration Records /

Circulation Records

Other Confidentiality Act does not

apply.

Step 2Who is requesting

the records?

Law Enforcement

Officer

Court Order

Other(e.g. FOIA)

Produce

Produce statistical

reports only.

Step 3Does officer state that

there is an emergency and imminent bodily harm?

Yes

Step 4What records are

sought?

NoDo Not

Produce

Circulation Records

Info to ID non-witness, non-suspect, non-

victim.

Do Not Produce Info to ID

witness, suspect, victim.

Produce

Sign Receipt

Examples

FOIA – Statistics FOIA request asking how many times a certain book has been checked out.

FOIA – Registration Information FOIA request asking for address and telephone number of a particular library patron.

Examples 2

FOIA – Registration Statistics FOIA request for zip codes of library patrons checking out certain books.

Address Verification School district calls and explains that it is investigating the residency of a student. The school asks for address verification of a library patron.

Examples 3

Court Order – Subpoena Subpoena from the Illinois Human Rights Commission for circulation records for a library patron.

Court Order – Subpoena Subpoena in a divorce case asks for all the books and movies a patron checked out for the past two years for a certain patron.

Examples 4

Emergency Exception Law enforcement officer asks for the address of a patron, stating that she was a witness to a criminal act that occurred two weeks ago. The officer indicates that he has no knowledge of whether the suspect will commit bodily harm in the near future.

Emergency Exception Law enforcement officer asks for address of a patron, stating that he believes that the patron may hurt himself or another person if he is not found as soon as possible. You know this patron and you know that he is a nice gentle person who would never even think of hurting someone else.

FOREIGN INTELLIGENCE SURVEILLANCE ACT (FISA)

A Federal law which prescribes procedures for the physical and electronic surveillance and collection of "foreign intelligence information" between "foreign powers" and "agents of foreign powers" (which may include American citizens and permanent residents suspected of espionage or terrorism)

Allows FBI agents to get a FISA order A FISA order can be used only by the FBI. It must be issued by the Office of the U.S. Attorney General It cannot be used by local or state law enforcement agencies. A special FISA court order allows the FBI to compel libraries, in

conflict with the Illinois Confidentiality Act, to provide patron circulation or registration records and/or employee records.

USA PATRIOT ACT

This Act was put into place immediately following September 11, 2001.

The Patriot Act expired in 2015, but was replaced, with some modification, by the USA Freedom Act (Public Law 114-23).

Contains a number of provisions intended to expedite law enforcement, including provisions on issuing FISA court orders.

Several sections of the USA Freedom Act may implicate information generated and/or retained by Libraries, particularly in terms of law enforcement access to library records and the use of library facilities for surveillance and wiretapping purposes. However, the USA Freedom Act made it harder for the government to

acquire FISA orders

SUBPOENAS

A subpoena is not a court order. It is signed by a court clerk of the Illinois Grand Jury or U.S. District Court. It does not require immediate compliance.

If an officer has a subpoena in hand, the library has 7 days to take action.

Take the subpoena or photocopy it if they will not leave Tell the officer the library’s attorney will contact him

or her. Give the subpoena to the Library Executive Director,

who should then call the Library Attorney

WARRANTS

A warrant is a court order that gives the officer the right to search and seize immediately.

It has been reviewed by a judge and must have the signature of a judicial officer and show the time and date of issuance. It must show probable cause.

A warrant must be specific, stating the place to be searched or the specific items to be seized.

WARRANTS

If the officer has a warrant, immediate compliance is required. However, you must be given time to read the document.

Do not provide any information whatsoever until you have read the document and talked with the library’s attorney.

Look for the specific details in the warrant of what is to be searched and which items are to be seized. If the details are not specific, question the officer.

FISA ORDER

A FISA order can be used only by the FBI. It must be issued by the Office of the U.S. Attorney General. it cannot be used by local or state law enforcement

agencies. A special FISA court order allows the FBI to

compel libraries, in conflict with the Illinois Library Records Confidentiality Act, to provide patron circulation or registration records and/or employee records.

FISA ORDER PROCEDURE

If an FBI agent has a FISA order, ask for his/her identification to determine that s/he is indeed an FBI agent. Use the copy machine to copy his/her ID card or at least write down the badge number.

Before complying, call the Library Attorney and either the Library Executive Director or one of the trustees.

If computer equipment is requested, also attempt to reach the automation technician

FISA ORDER PROCEDURE: GAG ORDERS

After compliance with a FISA order, a gag rule requires that no person disclose that the FBI has sought or obtained tangible things from the Library

However, you may notify those persons necessary to comply with the order, an attorney to obtain legal advice with respect to the order, and any persons permitted by the FBI Director or his designee.

If you disclose this information to anyone other than the Library attorney, you need to tell the FBI agent who you will make, or have already made, the disclosure to.

You must notify any person to whom you disclose this information to that they too with be subject to the gag order.

OFFICER HAS NO OFFICIAL DOCUMENT

If the officer has no official document in hand, do not provide information or allow equipment to be removed from the library regardless of the official’s words or actions.

Instead, explain the requirements of the Library Records Confidentiality Act

GIVING RECORDS TO LAW ENFORCEMENT OFFICERS

The information must be limited to identifying a suspect, witness, or victim of a crime.

Registration or circulation records that would indicate materials borrowed, resources reviewed, or services used at the library may not be made public without a court order.

If requested to do so by the library, the requesting law enforcement officer must sign a form acknowledging the receipt of the information.

A library providing the information may seek subsequent judicial review to assess compliance with this Section.

OTHER PATRON CONFIDENTIALITY CONCERNS: COMPUTER TRESPASS

Under the USA Freedom Act, owners and operators of electronic systems may authorize federal law enforcement agency to investigate computer trespass. This law/exemption would trump the duties in the Library Records

Confidentiality Act A “computer trespasser” is defined as the person who

accessed a protected computer without authorization and, thus, has no reasonable expectation of privacy in any communication transmitted to, through, or from the protected computer and does not include a person known to the computer owner or operator to have an existing contractual relationship with the owner or operator of the computer for access to all or part of the computer.

Other Patron Confidentiality Concerns: Computer Trespass

Any library employee who knows or believes that the library computer system has been compromised by a computer trespasser should first report this information to the person in charge of the library.

If the person in charge of the library would like to have a law enforcement agency investigate the matter, the person in charge of the library will either contact the law enforcement agency or decide which library employee should do so. The person in charge of the library will inform the

executive director and library board president.

QUESTIONS?

Gregory T. Smith

20 N. Wacker Drive, Suite 1660Chicago, IL 60606

312.984.6400

15010 S. Ravinia Avenue, Suite 10Orland Park, IL 60462

708.349.3888

Documents

Atlas Academy FOIA OMA Presentation - 5-14-16.PPTX