The PAC recently issued a binding opinion finding that the office of Illinois Governor Bruce Rauner violated the requirements of the Freedom of Information Act by delaying its response to a FOIA request, and improperly redacting information responsive to the FOIA request.
On May 15, 2015, the Governor’s office received a FOIA request seeking documents showing the Governor’s appointments from April 1, 2015 to May 14, 2015, including the times and dates of any and all meetings and functions attended by the Governor and names and titles of the meeting attendees.
The Governor’s office initially disclosed only the April calendar, and redacted certain information. Weeks later, the Governor’s office disclosed the May calendar, redacting similar information. The second response was made on June 15, 2015, long after the required response period.
Addressing this issue first, the PAC found that the Governor’s office did not comply with FOIA’s statutorily required time for response because it failed to respond within five business days as required by Section 3(d) of FOIA.
Regarding the denial, the Governor’s office argued that the calendar is not a public record subject to FOIA, and its release would create a potential safety risk for the Governor. Alternatively, the Governor’s office argued that if the calendar is subject to FOIA, certain information should be exempted as it contains pre-decisional and deliberative material as well as attorney-client privileged communications.
The PAC found no merit to any of the Governor’s office’s arguments. As a threshold matter, the PAC found that the Governor’s calendar is subject to FOIA as it is used to conduct public business by facilitating the day-to-day operations of his office. As to a potential safety risk, the PAC concluded that the Governor’s calendar did not contain the level of detail necessary to create such a security risk (e.g., names of traveling companions and modes of transportation).
The PAC also reviewed the contention that Section 7(1)(f) of the FOIA, which exempts pre-decisional records, applied. 5 ILCS 140/7(1)(f). The PAC found that the Governor’s office did not provide a detailed factual basis for redacting such information and failed to sustain its burden in asserting this exemption.
Lastly, the PAC reviewed Section 7(1)(m) of FOIA, which exempts communications protected by attorney-client privilege. 5 ILCS 140/7(1)(m). The PAC noted that the calendar only provided when the Governor met with his attorney, not what they discussed. Accordingly the redactions were improper because information establishing that a meeting with an attorney took place is insufficient to justify exempting records under Section 7(1)(m) of the FOIA.
This binding opinion provides further guidance that if a public body intends to assert an exemption under FOIA, it must provide a detailed basis that justifies withholding the information.