The Illinois Attorney General’s Public Access Advisor recently released a binding opinion asserting that the Illinois Freedom of Information Act exemption for pre-sentence cases does not apply to communications from a public body to a third party likely to benefit from the case. The decision also suggests that the PAC will establish a clear rule that records not exchanged exclusively between employees and consultants of a public body who represent the interests of the public body are not protected by the exemption for pre-sentence cases. , although Illinois courts have given the exemption a more expansive read in the past. Because of this potential conflict, it is essential to work with legal counsel when preparing responses to FOIA requests.
The request for revision concerned a request from a third party for a special use and zoning variations from the City of Geneva. The City and its consultants provided comments to the third party applicant on the content of its zoning application prior to the zoning hearing. The City’s stated goal was to enable the third party to improve the app. The City argued that these review comments were pre-decision and deliberative, as they were intended to allow City officials to freely express ideas to the third party requester regarding the shortcomings of the request, the City’s requirements and recommendations. aimed at improving the request before it is formally examined by the Town’s planning department. and zoning commission. The plaintiff, an owner of an adjacent property who opposed the proposed use, argued that the city’s withholding of records under section 7 (1) (f) was detrimental to him as a challenger and did not fall under the exemption.
The PCB found that section 7 (1) (f) did not protect communications because they were not inter-agency communications but rather with external third parties. In its decision, the PAC acknowledged that previous court decisions have recognized the right of a public body to withhold communications with third parties using the 7 (1) (f) exemption, but the PAC distinguished this decision.
The case that the PAC recognized, but ultimately criticized, is State Journal-Register v. University of Illinois Springfield. There, the Illinois Court of Appeals ruled that a letter sent to a public body by a third party lawyer against the public body was pre-sentence and subject to the 7 (1) (f) exemption. . The court explained that the purpose of exempting pre-sentence and deliberative material is to protect the communication process and encourage frank and open discussion among agency employees before a final decision is made. The court noted that the public body would undoubtedly have relied on the lawyer’s letter to formulate a plan or policy for resolving a potential dispute with the victim. The court, however, did not discuss that the letter was an interagency communication, likely determining that such an analysis was irrelevant in determining whether the communication was subject to the 7 (1) exemption ( f). Incidentally, the FOIA Exemption 7 (1) (f) does not say if it only applies to inter-agency communications.
Although the Status log-register the case clearly concerned interagency communication, the PCB distinguished the case to come to its conclusion that communications and files shared between a public body and a non-employee or a non-consultant cannot be protected by section 7 (1) (f). Typically, the PAC would be accountable for the decision of a court of appeal, but the PAC here held that because the Status log-register court did not specifically discuss the interagency issue, the PCB may reach a different decision.
The PCB decision appears to draw the general conclusion that any communication to or from a public body and a third party can never be subject to the exemption in Article 7 (1) (f) unless the third party is not an employee or a consultant of the public body. This decision appears to conflict with the decision of the Court of Appeal in State Journal-Register v. University of Illinois Springfield, which remains a good law.
In light of this apparent conflict, public bodies should carefully consider the exempt status of third-party communications and seek legal advice where the determination is not apparent.