Questions and Answers on Library Law:
The Freedom of Information Act, Part 3

This column appears regularly in Illinois Libraries and addresses commonly asked questions on library law. If you have questions you would like addressed in this column, please send them to: "Q and A on Library Law," Illinois Libraries, at the address on the title page of this issue. While we are not necessarily able to answer all questions, we will try to address those issues that seem to be of most concern to the greatest number of libraries. The first two columns in this series addressed the basic concepts of the Freedom of Information Act. This column will continue with and complete the discussion of common questions that may arise under the FOIA:

Q: Is a specific procedure required if a request for records is denied?

A: In the event that requested disclosure of public records is denied, the librarian or Library Board president must notify by letter the person making the request of:

(a) the decision to deny;

(b) the reasons for the denial;

(c) the names and titles or positions of "each person responsible for the denial" (it is not clear if this more inclusive than merely the person or persons actually who makes the decisions to deny); and

(d) the person's right to appeal to the "head of the public body" (the Library Board president) or if the decision was made by the head of the public body, then of the person's right to judicial review under Section 11 of the Act.

If the request is denied on the basis of one of the exemptions contained in Section 7 of the Act, the notice of denial must specify the exemption.

Also, copies of all notices of denial must be retained, indexed and made available for public inspection. The indexing must be as to the type of exemption asserted (i.e., as listed in Section 7) and to the extent feasible according to the types of records requested, (e.g., criminal records, preliminary investigative reports, etc.).

Q: May a denial of records be appealed?

A: If the decision to deny is made by someone other than the head of the public body (the Library Board president), it may be appealed to the president by written notice to the president. No time frame is given in the FOIA for such an appeal. The president must, upon receipt of such an appeal, "promptly" review the records, determine whether the decision to deny was correct, and notify the person making the appeal of his decision "within 7 working days after the notice of appeal."

A person will be deemed to have been denied access to the records and also to have exhausted all administrative remedies if the head of the public body upholds the denial or fails to act within the seven-day time limit. In such circumstances, the individual will be entitled to judicial review by a complaint for injunction or declaratory judgment.

Q: How is FOIA enforced by the courts?

A; The FOIA provides for civil remedies for enforcement of the Act. As noted above, any person denied access may file a suit for judicial review, requesting injunctive or declaratory relief. No time limit is provided in the Act within which such a suit must be brought.

In the lawsuit the burden is on the public body to establish that its refusal was legitimate. If the court determines the Act was violated, it may enjoin (i.e., prohibit) withholding of the requested records and order disclosure. In the event of non-compliance with

* Scott Uhler and Janet Petsche, are partners, and Rinda Allison is an associate with the law firm of Klein, Thorpe and Jenkins, Ltd. with offices in downtown Chicago and Orland Park. The firm concentrates in the representation of public libraries and library districts in Illinois as well as other local government units.

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its order, the court may enforce the order through its contempt-of-court powers.

The court also has the power to award reasonable attorneys fees to the person requesting disclosure if such person "substantially prevails" in any such lawsuit, but only if the court finds that the records were "of clearly significant interest to the general public" and that the public body lacked any rational legal basis for withholding the record.

No corresponding right for a library to recover attorneys fees if it prevails is included under the Act. The refusal by a library to furnish a lost record is not a violation of the Act, and such refusal does not entitle the plaintiff to an award of attorneys fees. Workmann v. Illinois State Board of Education, 229 III.App.3d 459 (2d Dist. 1992).

Q: How have courts interpreted FOIA?

A: The public policy set forth in the Act favors disclosure of public information so citizens may be informed about the workings of government. The general principle in interpreting the exemptions FOIA is that they are interpreted narrowly and doubts regarding interpretation are constructed to favor disclosure. The Illinois FOIA is modeled after the Federal Freedom of Information Act (FFOIA, 5 USC 552) and shares several key provisions with the Federal Act, including exemptions from disclosure relating to personal privacy, investigatory records and trade secrets. The legislative history of the Illinois Act clearly indicates that the Act's sponsors intended that interpretations of the FFOIA by federal courts serve as a guide to understanding the provisions of the Illinois Act.

In addition, other states have adopted acts similar to the Illinois Act. Thus, even if Illinois courts have not ruled on an issue, by examining judicial treatment and interpretation of similar provisions in the Federal Act and other state acts, it is possible to gain some insight into the intent of the Illinois Act and how Illinois courts might rule.

Q: If an FOIA request is denied, do the courts defer to the decision of a public body regarding denial?

A: No. Illinois courts conduct their own, new review of the decision to deny a request. Moreover, in interpreting freedom of information laws, courts generally have broadly construed them in favor of disclosure. In one case, the appellate court held that a settlement agreement reached in a contract suit was not exempt from disclosure, even though one of the parties requested and was granted a "gag order" by the court. Carbondale Convention Center, Inc. v. City of Carbondale, 245 Ill.App.3d 474, 614 N.E.2d 539 (5th Dist.1993). Nevertheless, the Illinois Appellate Court has held that inclusion of certain exemptions in the Act is constitutional and does not violate the constitutional guarantees of freedom of the press, as long as the exemptions are applied on a case-by-case basis and not seen as blanket exemptions to be applied categorically. City of Monmouth v. Galesburg Printing, 144 Ill.App.3d 224, 494 N.E.2d 896 (3rd Dist. 1986).

When hearing cases arising under the Federal Act, courts have imposed strict procedural requirements on public bodies seeking to avoid disclosure. These measures include placing the burden of proof on the body opposing disclosure. Conoco, Inc. v. U.S. Dept. of Justice, 521 F.Supp. 1301 (D.Del. 1981) affirmed in part, reversed in part on other grounds, 687 F.2d 724

(3rd Cir. 1982), and requiring the body opposing disclosure to provide "particularized and specific justification for exempting information from disclosure" with all objections indexed to the material sought to be exempted from disclosure. Vaughn v. Rosen, 484 F.2d (D.C. Cir. 1973).

In imposing strict procedural requirements on agencies opposing disclosure, the court in one case recognized the difficulty faced by plaintiffs seeking the release of public records arising from the fact that they are without access to the material sought and therefore unable to oppose the factual characterization of the material by the body opposing disclosure. Cuneo v. Schlesinger. 484 F.2d 1086 (D.C. Cir. 1973).

Q: What if the information being requested is personal and could be embarrassing to someone if released?

A: The information may still be required to be released. However, both the FFOIA and the Illinois Act contain an exemption from disclosure for information that would constitute a "clearly unwarranted invasion of personal privacy." This provision has been interpreted by federal courts as requiring a balancing of the public interest served by disclosure against the potential invasion of personal privacy. One federal court held that the disclosure of public employees' names and home addresses violated the Privacy Act, stating that federal employees have privacy interests in their names and home addresses that must be protected and that the relevant public interest in disclosure, though not nothing,

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is outweighed. Federal Labor Relations Authority v. Department of Treasury, 884 F.2d 1446 (1989).

Because Illinois does not have a similar Privacy Act, the names of public employees would be discoverable under certain circumstances, but their addresses are most likely exempt from disclosure. Some Illinois courts have adopted the federal court's balancing test for the Illinois Act. Margolis v. Director, Illinois Department of Revenue, 180 Ill.App.3d 1084, 536 N.E.2d 827 (1st Dist. 1989) cert. den. 126 Ill.2d 560 (1989), and Blumenfeld, Ltd. v. Department of Professional Regulation, 263 Ill.App.3d 981, 636 N.E. 2d 594 (1st Dist. 1993). In a recent Illinois case, the court considered the use to which the requestor would put the requested information and found that "the release of citizens' names and addresses to facilitate home mailings amounted to an unwanted invasion of the citizens' personal privacy and exceeded the purposes of the Act." Local 1274 v. Niles Township High Schools, 287 Ill.App3d 187 (1st Dist. 1997). (The school district did not have to release names and addresses of parents to the teachers' union to involve the parents in the collective bargaining process.)

However, other courts have held that the particular purpose to which requested information is to be put is not a factor in determining its release. U.S. Dept. Of Air Force v. Federal Labor Relations Authority, 838 F.2d 229 (7th Cir. 1988).

Courts have found that records containing a detailed synopsis of an individual's career, family relationship and financial status represent the type of information that the exemption was intended to protect. Moreover, a federal appeals court recently found that an Ohio city violated the due process rights of certain undercover police agents when it disclosed material from their personnel files to attorneys for the defendants in a gang and drug trial. The city claimed that Ohio Public Records Law (similar to the FOIA) required the release, but the court found that, nevertheless, the release was improper. Kallstrom v. Columbus, 136 F.3d 1055 (6th Cir. 1998).

Q: Should public employees avoid taking notes, holding planning meetings or putting matters in writing because they may be subject to public disclosure?

A: There is an exemption in the Illinois Act, as well as the Federal Act, and similar state acts for "preliminary drafts, notes, recommendations, memoranda and other records in which opinions are expressed, or policies or actions are formulated...." This exemption is intended to encourage frank and open dialogue on matters of governmental concern in order to make an informed policy decision, which would be available for public review. N.L.R.B. v. Sears, 421 U.S. 132 (1975); Mink v. EPA, 410 U.S.73 (1973).

The state and federal Acts also exempt from disclosure investigatory records compiled for administrative law enforcement purposes where disclosure would interfere with pending or reasonable contemplated enforcement proceedings. See e.g., Moorfield v. U.S. Secret Service, 611 F.2d 1021 (5th Cir. 1980), cert. den. 449 U.S. 909 (1980); Griffith Laboratories U.S.A. v. Metropolitan Sanitary District, 168 Ill.App.3d 341, 522 N.E.2d 744 (1st Dist. 1988). However, a request seeking attendance and sick leave records for a public agency's assistant bureau chief to substantiate a "tip" that the official had been taking unaccrued sick leave and improperly using sick leave time to take paid vacations was proper, and the records were not exempt under the FFOIA. Dobronski v. Federal Communications Commission, 17 F.2d 273 (9th Cir. 1994).

Q: Is a library prohibited from releasing records if they are exempt?

A: No. A library is not generally prohibited by FOIA from releasing exempt records, but rather has the legal authority to refuse to release certain exempt documents. Caution should be exercised in releasing documents that are exempt, if it is anticipated that harm would be likely if the library releases such records. See e.g., Kallstrom above. Further, conflicts have arisen concerning exemptions where disclosure is positively prohibited by another state or federal law. In one case, however, the prohibition on disclosure of certain student records under the Illinois School Code did not prohibit disclosure of masked and scrambled student records where individual identifying information was deleted. Bowie v. Evanston Community Consolidated School District No. 65, 128 Ill.2d 373, 538 N.E.2d 557 (1989). Further, in Kallstrom, above, the apparent requirement of state law to release did not make the city's release of personal information proper.

Q: If a request is made for records to obtain access to information to further someone's business enterprise, can it be denied for that reason?

A: The preamble to the Illinois FOIA states that the Act is not intended to be used "for the purpose of fur-

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thering a commercial enterprise." This section has been relied on by many governmental entities as a reason, by itself, to deny certain business access to information, such as employee name and address lists, user lists, newsletter mailing lists and the like. However, in a recent case the Illinois Supreme Court found that the quoted language is "simply a declaration of policy or preamble," and, therefore, "has no substantive legal force." Therefore, even if the purpose for which information is requested may be considered, there is no specific "commercial exemption" in Illinois, and a different exemption would have to be relied upon to deny access to records. Lieber v. Board of Trustees of Southern Illinois University, 176 I11.2d 401 680 N.E.2d 374 (1997).

Conclusion:

The brief discussion of court decisions indicates that FOIA jurisprudence is somewhat limited and requires close scrutiny of the particular facts of a conflict under FOIA. Whether the purpose of a disclosure request may or must be considered, whether a "balancing test" will be used, or whether a request may only be judged by consulting the stated exemptions in the law, is uncertain. Generally, as stated above, courts construe the FOIA broadly in favor of disclosure. But as the Kallstrom case demonstrates, where information of a personal nature is involved, the effects of disclosure must be carefully considered.

Our next column will begin a discussion of general issues arising under the Open Meetings Act.

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