By: Brittany Flaherty Theis
As mentioned in a prior blog post, the Illinois Attorney General issued two opinions of particular significance to our clients this summer. The first opinion, regarding the litigation exception to the open meetings requirement was discussed here. The second, which reiterates that redacting records provided in response to a Freedom of Information Act (“FOIA”) request renders the response a partial denial, analyzed FOIA provisions regarding certified payroll records and personal information.
Freedom of Information Act
In Public Access Opinion 17-010, the Office of the Attorney General reiterated that redacting responses to a FOIA request render the response a “partial denial” of the FOIA request, which triggers the requirements of section 9 of FOIA. In that case, a FOIA request was submitted to the City of Rockford for copies of payroll records for a particular construction project. The City of Rockford provided copies of the certified payroll records to the requester, but redacted the contractors’ employees’ names, addresses, social security numbers, and driver’s license numbers from the records before doing so. Despite the redactions, in a letter accompanying its response, the City of Rockford stated that the request was “approved in its entirety.” It did not state that it was denying the request in part nor did it state the basis for the partial denial. Thereafter, the requester filed a Request for Review with the Public Access Bureau.
Relevant to the Public Access Bureau’s analysis is section 2.10, which provides that certified payroll records submitted to a public body under the Prevailing Wage Act are public records under FOIA, except for specific details that must be redacted. The specific redactions include the contractors’ employees’ addresses, telephone numbers, and social security numbers. Additionally, section 7(1)(b) exempts driver’s license numbers as “private information” not subject to FOIA. Together, these provisions mean that it was proper for the City of Rockford to redact the addresses, social security numbers, and driver’s license numbers of the contractors’ employees from the records, but there is no mention of their names being exempt.
The City of Rockford argued that it had properly redacted the names from the payroll records as “personal information” of non-governmental employees under section 7(1)(c), but the Public Access Bureau disagreed. The Public Access Bureau explained that this exemption applies only to clearly unwarranted invasions of personal privacy. Prior case law declared that names are unquestionably personal information, but that they are not highly personal or confidential. The Public Access Bureau also considered the public interest in knowing the purposes for which public funds are expended, including the identity of those who receive the funds and the amount received. Ultimately, the Public Access Bureau determined that the public interest in the information outweighed the employee’s right to privacy even if the employees’ names could be considered highly personal information. For that reason, it ordered the City of Rockford to turn over the records without the names redacted.
Additionally, although it was proper for the City of Rockford to redact the addresses, social security numbers, and driver’s license numbers of the contractors’ employees from the records, it had not informed the requester that such redactions served as a partial denial of the request as required by FOIA. Under section 9(a), the City of Rockford should have notified the requester in writing that it was denying the request in part, along with the reasons for doing so.
Whitt Law regularly receives inquiries from its clients regarding FOIA requests they receive. Our office works with clients to review the request and the public bodies’ records, consider the applicable permissive and mandatory exemptions, and prepare the records and a sufficient written response to the requester. Although this Public Access Opinion does not require any modifications to the best practices advocated by Whitt Law, it does reiterate the conclusion that redactions in a FOIA response deem the response a partial denial, which triggers the notice requirements of section 9 of FOIA.
If you have any questions regarding Public Access Opinion 17-010 or the Freedom of Information Act more generally, please contact Whitt Law Attorney Brittany Flaherty Theis or Senior Attorney Brian R. Bare.
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