Here is the latest evidence that McHenry County Board Chairman Jack Franks is not living up to his promise to be transparent. (Sentences in paragraphs have been separated to make them easier to read.)
March 23, 2017
Via electronic mail Mr. Cal Skinner
McHenry County Blog
275 Meridian Street Crystal Lake, Illinois 60014
[email protected] com Via electronic mail
Mr. Scott Hartman
Deputy County Administrator McHenry County Administration
2200 N. Seminary Avenue
Woodstock, Illinois 60098
[email protected] mchenry. il.us
RE: Request for Review — 2016 PAC 45451
Dear Mr. Skinner and Mr. Hartman:
This determination letter is issued pursuant to section 9. 5( 0 of the Freedom of Information Act (FOIA) (5 ILCS 140/ 9. 5( f) (West 2014).
For the reasons that follow, the Public Access Bureau concludes that the response by McHenry County ( County) to Mr. Cal Skinner’ s FOIA request violated FOIA.
On December 7, 2016, Mr. Skinner submitted a FOIA request to the County seeking a copy of a written document from which County Board Chairman Jack Franks Chairman) read certain comments to the County Board and the public at a December 5, 2016, county board meeting.
On December 14, 2016, the County denied the request pursuant to section 7( 1)( f) of FOIA (5 ILCS 140/ 7(1)( f) (West 2015 Supp.), as amended by Public Act 99- 642, effective July 28, 2016 ).
The County also asserted that the document is not a “public record” under the definition of that term in section 2(c) of FOIA (5 ILCS 140/ 2)(c) (West 2015 Supp.)).
On December 14, 2016, this office received Mr. Skinner’s Request for Review contesting the denial of his request.
On December 20, 2016, this office forwarded a copy of the Request for Review to the County and asked it to provide a detailed legal and factual basis for its conclusion that section 7(1)( f) was applicable to the record.
This office also asked for a detailed explanation of its assertion that the requested record is not subject to the requirements of FOIA because it is not a public record as defined in section 2(c) of FOIA.
On December 29, 2016, the County responded that the document was a “personal preliminary draft and notes prepared by an elected official on his personal computer in preparation for making his personal remarks at a County Board Meeting” which “does not meet the definition of a public record.”‘ (FMN 1)
Further, the County asserted that it does not possess the record and therefore it was unable to provide a copy of the record for this office’s confidential review or in response to Mr. Skinner’s FOIA request.
Additionally, the County stated that, ifit was a public record, it would be exempt from disclosure under section 7(1)( f) as the ” preliminary draft of and notes for” the chairman’ s remarks. (FN 2)
On January 5, 2017, this office forwarded the County’ s response to Mr. Skinner.
He replied on January 5, 2017, and January 13, 2017, disputing the County’ s contentions that the document is not a public record and that it is a preliminary draft rather than a final copy.
He suggested that the County redact any portions of the notes that were scratched out and not read by chairman, and disclose the remainder.
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FN 1 Letter from Sarah P. Zurek, Assistant State’ s Attorney, Office of the State’ s Attorney, McHenry County, to Marie Hollister, Assistant Attorney General, Illinois Attorney General’ s Office ( December 29, 2016), at 1.
FN 2 Letter from Sarah P. Zurek, Assistant State’ s Attorney, Office of the State’ s Attorney, McHenry County, to Marie Hollister, Assistant Attorney General, Illinois Attorney General’ s Office ( December 29, 2016), at 1.
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Section 2( c)
FOIA requires that “[e] ach public body shall make available to any person for inspection or copying all public records.” 5 ILCS 140/ 3(a) (West 2014)). Section 2(c) of FOIA broadly defines “public records” as “all records * * * and all other documentary materials pertaining to the transaction ofpublic business, regardless of physical form or characteristics, having been prepared by or for, or having been or being used by, received by, in the possession of, or under the control of any public body.”
By emphasizing that it does not have physical custody of the notes at issue and by characterizing them as a “personal preliminary draft” prepared by the chairman on his “personal computer in preparation for making his personal remarks,” the County’ s response to this office appears to assert that the notes are the chairman’ s personal property rather than “public records.”
The requirements of FOIA, however, are not limited to those records prepared with a public body’s equipment and physically maintained by the public body.
In Competitive Enterprise Institute v. Office of Science & Technology Policy, No. 15- 5128, 2016 WL 3606551, at * 1 ( D. C. Cir. July 5, 2016), the District of Columbia Court of Appeals considered a federal agency’ s argument that e- mails pertaining to the agency’ s business and policymaking ” were ‘beyond the reach of FOIA'” because the agency’ s director maintained them “in an ‘account’ that ‘is under the control ofthe Woods Hole Research Center, a private organization.’
The court disagreed, stating, that there was no indication that the private organization had exclusive control of the e-mails or that the agency director was unable to access the e- mail account:
“If the agency head controls what would otherwise be an agency record, then it is still an agency record and still must be searched or produced.”
Competitive Enterprise Institute, No. 15- 5128, 2016 WL 3606551, at * 4.
The court added that the agency’ s position was incompatible with the purpose of federal FOIA ( 5 U. S. C. § 552 et seq. ( 2012)):
The Supreme Court has described the function of FOIA as serving the citizens’ right to be informed about what their government is up to.
“If a department head can deprive the citizens of their right to know what his department is up to by the simple expedient of maintaining his departmental emails on an account in another domain, that purpose is hardly served.
It would make as much sense to say that the department head could deprive requestors of hard-copy documents by leaving them in a file at his daughter’s house and then claiming that they are under her control. Competitive Enterprise Institute,_ No. 15- 5128, 2016 WL 3606551, at * 4.
Likewise, the Illinois FOIA is intended to ensure public access to “full and complete information regarding the affairs of government and the official acts and policies of those who represent them as public officials and public employees consistent with the terms of this Act.” 5 ILCS 140/ 1 (West 2014).
In Ill. Att’y Gen. Pub. Acc. Op. No. 16- 006, issued August 9, 2016, the Attorney General issued a binding opinion which concluded that e-mails pertaining to the transaction of public business that were sent or received on the personal e-mail accounts of Chicago Police Department (CPD) employees are subject to the requirements of FOIA.
CPD contended that the e- mails were not public records because they were prepared and possessed by individual officers but were not received and used by CPD. Ill. Att’ y Gen. Pub. Acc. Op. No. 16- 006, at 7.
This office rejected that argument as “erroneously focus[ing] not on the content of a communication but on the method by which it is transmitted.” III. Att’y Gen. Pub. Acc. Op. No. 16- 006, at 7.
The Attorney General went on to conclude that:
Interpreting the definition of “public records” in FOIA to exclude communications pertaining to the transaction of public business which were sent from or received on personal e-mail accounts of public officials and public employees would be contrary to the General Assembly’s intent of ensuring full and complete information regarding the affairs of government.
Such an interpretation would yield an absurd result by enabling public officials to sidestep their public duties simply by communicating via personal electronic devices. Ill. Att’ y Gen. Pub. Acc. Op. No. 16- 006, at 7.
This reasoning is equally applicable to the record at issue in this matter.
If records pertaining to public business created by individual elected officials on personal computers and maintained outside of their public body’s offices were beyond the reach of FOIA, elected officials could conceal records documenting how they conducted their public duties by simply electing not to use their public bodies’ electronic devices and recordkeeping systems.
FOIA cannot reasonably be construed as giving elected officials the option to operate in secrecy in that manner.
The Board’ s response to this office acknowledged that the chairman used the notes to assist him in making remarks as the newly elected Chairman * * * at the first meeting of the new county board. (FN 3)
Such records used by the head of a public body during a meeting of the public body “unequivocally pertain to the transaction of public business.” 5 ILCS 140/ 2( c) West 2014); see also Walloon Lake Water Sys., Inc. v. Melrose Twp., 163 Mich. App. 726, 729- 30 415 N.W.2d 292, 294- 95) ( 1987) (letter read aloud during a township board which the board considered in deciding that the subject of the letter did not require township action was subject to the requirements of the Michigan FOIA (MJC. L. § 15. 231 et seq. ( West 1984)) because it was used … in the performance of an official function. (FN 4).
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FN 3 Letter from Sarah P. Zurek, Assistant State’ s Attorney, Office of the State’ s Attorney, McHenry County, to Marie Hollister, Assistant Attorney General, Illinois Attorney General’ s Office (December 29, 2016), at 1
FN 4 The Michigan FOIA defined a ” public record” as “[ a] writing prepared, owned, used, in the possession of, or retained by a public body in the performance of an official function, from the time it is created.” M. C. L. § 15. 232( c) ( West 1984).
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Because the notes at issue were used by the chairman to conduct public business in his capacity as the head of the County Board, this office concludes that they are ” public records” under section 2( c) of FOIA regardless of whether they were prepared and maintained on County or privately -owned equipment.
Section 7(1)( d)
All public records in the possession or custody of a public body are “presumed to be open to inspection or copying.” 5 ILCS 140/ 1. 2 ( West 2014); see also Southern Illinoisan v. Illinois Dept. ofPublic Health, 218111. 2d 390, 415 ( 2006).
A public body “has the burden of proving by clear and convincing evidence” that a record is exempt from disclosure. 5 ILCS 140/ 1. 2 ( West 2014).
The exemptions from disclosure are to be narrowly construed. Lieber v. Board of Trustees of Southern Illinois Univ., 176 111. 2d 401, 408 ( 1997).
Bare conclusions without a detailed rationale do not satisfy a public body’s burden of explaining how exemptions are applicable.
See Rockford Police Benevolent and Protective Ass’ n. Unit No. 6 v. Morrissey, et al., 398 Ill. App. 3d 145, 151 ( 2d Dist. 2010) ( citing Illinois Education Ass’ n v. Illinois State Board ofEducation., 204111. 2d 456, 464 ( 2003)).
Section 7(1)( f) exempts from inspection and copying “[p] reliminary drafts, notes, recommendations, memoranda and other records in which opinions are expressed, or policies or actions are formulated, except that a specific record or relevant portion of a record shall not be exempt when the record is publicly cited and identified by the head of the public body.”
The section 7(1)( f) exemption applies to ” inter- and intra -agency predecisional and deliberative material.” Harwood v. McDonough, 344 Ill. App. 3d 242, 247 ( 1st Dist. 2003).
The section 7(1)( f) exemption is “intended to protect the communications process and encourage frank and open discussion among agency employees before a final decision is made.” Harwood, 344 III. App. 3d at 248. see also Kalven v City of Chicago, 2014 IL App ( 1st) 121846, ¶ 24, 7 N.E. 3d 741 748 ( 2014), quoting Public Citizen, Inc. v. Office ofManagement & Budget, 598 F. 3d 865, 876 ( D. C. Cir. 2010) (“[ o]nly those portions of a predecisional document that reflect the give and take of the deliberative process may be withheld.”).
The County’ s response to this office asserted that the Chairman never publicly cited or referenced the document in question, and that it was only used as a preliminary draft and notes for remarks that were delivered during a County Board meeting.
The response asserted that the final version of this document is the recording of the speech that is available on the County’ s website.
The ability of this office to conduct a full review of whether or not the notes are exempt from disclosure pursuant to section 7(1)( f) is limited by the County’ s failure to provide a copy of the notes for this office’s confidential review as expressly required by section 9. 5(c) of FOIA ( 5 ILCS 140/ 9. 5(c) ( West 2014)). (FN 5)
In particular, this office is unable to compare how consistent the notes are with the recording ofthe comments that the chairman made at the County Board meeting.
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FN 6 Section 9. 5( c) of FOIA provides: “Within 7 business days after receipt of the request for review, the public body shall provide copies of records requested and shall otherwise fully cooperate with the Public Access Counselor.”
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Further, neither the County’ s response to the FOIA request nor its response to this office provides a detailed factual basis from which this office could conclude that the notes fall within the scope of the section 7(1)( f) exemption.
Unlike a rough draft used in the process of preparing for a speech, it is unclear how a document used to deliver the final, public version of a speech constitutes a preliminary draft or predecisional and deliberative material.
Because it cannot be determined from the information furnished by the County whether the document constitutes a preliminary draft or notes in which opinions are expressed or policies or actions are formulated, this office concludes that the County has not sustained its burden of demonstrating by clear and convincing evidence that the document is exempt from disclosure pursuant to section 7(1)( f) of FOIA.
In accordance with the determinations expressed in this letter, we request that the County disclose the document to Mr. Skinner.
The Public Access Counselor has determined that resolution of this matter does not require the issuance of a binding opinion.
This letter serves to close this matter.
If you have any questions, please contact me at ( 312) 793- 0865 or the Chicago address on the first page of this letter.
Very truly yours,
Assistant Attorney General
Public Access Bureau
45451 f 2c improper 71f improper county