By: Brittany Flaherty Theis
The Illinois Freedom of Information Act (the “Act”) provides that all records in the custody of a public body are presumed to be open to inspection or copying. The Act also contains numerous exemptions to that presumption. There is an abundance of case law in Illinois highlighting and defining the exemptions to guide public bodies seeking to determine what records are subject to inspection or copying and which the law intended to exempt from disclosure.
In a lawsuit filed against the Illinois Office of the Attorney General, the Illinois Appellate Court considered the “deliberative process exemption” found in Section 7(1)(f) of the Freedom of Information Act. Section 7(1)(f) states:
(f) Preliminary 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 exemption provided in this paragraph (f) extends to all those records of officers and agencies of the General Assembly that pertain to the preparation of legislative documents.
5 ILCS 140/7(1)(f).
In Fisher v. Office of Illinois Attorney General, the public body had contracted with a consultant to devise a plan to implement provisions of a settlement agreement, which plan was subject to approval in court. Prior to such approval, an attorney representing dissatisfied, potential claimants filed a FOIA request for communications between the Attorney General’s office and the consultant. The request was denied, citing Section 7(1)(f) – the deliberative process exemption.
In its recent decision in Fisher, the Court stated that the deliberative process exemption favors the confidentiality of predecisional materials to protect the communication process and to encourage frank discussion among employees before final decisions are made. With that in mind, upon a review of prior case law, the Court explained that, in order to be exempt under Section 7(1)(f), responsive records “must be both (1) inter or intra agency and (2) predecisional and deliberative.”
First, in determining that communication between the Attorney General’s Office and the consultant could be deemed “intra-agency” for purposes of the deliberative process exemption, the Court considered whether the “outside consultant’s analyses and recommendations ‘played essentially the same part in an agency’s process of deliberation as documents prepared by agency personnel might have done.’” In these cases, it is also significant that the outside consultant does not represent independent interests of its own.
Second, the timing of the communication at issue was significant. To be exempt under Section 7(1)(f), the Court reiterated that a public record “must be both predecisional in the sense that it is actually antecedent to the adopt of an agency policy, and deliberative in the sense that it is actually related to the process by which policies are formulated.”
In Fisher, the Court reviewed affidavits filed by the Attorney General’s Office and its consultant, which affidavits described the type of analyses and recommendations provided by the consultant to the public agency and the timing of those recommendations. The Court determined the consultant performed essentially the same function as the public agency would have had it performed the preliminary review itself and that the recommendations occurred prior to any final action on the matters. Therefore, it found the communications were effectively intra-agency and predecisional, as required for exemption.
Public bodies responding to a request for records under the Act, should be careful to lawfully balance the public’s interest in the open and transparent government business with the competing interest of encouraging constructive and frank internal communication. The Court’s decision in Fisher provides insight into that balancing process and the requirements of the deliberative process exemption. If you have questions regarding the decision issued by the First District Appellate Court in Fisher or need assistance complying with a Freedom of Information Act request, please contact Whitt Law Senior Attorney Brittany Flaherty Theis. As always, if you are already a client of Whitt Law LLC, you can contact any of our attorneys for assistance with requests for records under the Freedom of Information Act.
***At the time of publication of this blog post, the opinion in Fisher v. Office of the Illinois Attorney General, had not yet been released for publication in the permanent law reports and remained subject to revision or withdrawal. 2021 IL App (1st) 200225.***
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