The City of Evanston has been in recurrent violation of Freedom of Information Act mandates. The noncompliance was disclosed, somewhat ironically, through FOIA itself.
In examining almost 1200 online FOIA requests to the City of Evanston, at least half were unlawfully denied—through improper channels and without providing proper disclosures or bases for exemptions. By law, all public records are presumed open to the public upon request unless a public body can meet the burden “of proving by clear and convincing evidence” that it is exempt from disclosure (5 ILCS 140/1.2).
Undisclosed redactions, denials by Law Department, not FOIA officer
Evanston’s Law Department bypassed the FOIA office entirely in almost 40 percent of public record requests made in 2018, according to City records. Under Evanston and Illinois law, only the City’s designated FOIA, Clerk Devon Reid, is authorized to receive, process, grant and deny requests for public records.
“The FOIA Officer is the person with the authority on behalf of the City to grant or deny requests to inspect, copy, or certify public records filed pursuant to the Act and this FOIA policy.” — City of Evanston FOIA Policy
Of 1168 requests sampled from the City’s online FOIA portal, 446 were denied or issued by the Law Department before being forwarded to the FOIA officer or one of his designees. Law staff also failed to disclose its involvement in any of its denials, counter to FOIA regulations, including those in which it asserted attorney-client privilege.
(5 ILCS 140/9) (from Ch. 116, par. 209)
Sec. 9. (a) Each public body denying a request for public records shall notify the requester in writing of the decision to deny the request, the reasons for the denial, including a detailed factual basis for the application of any exemption claimed, and the names and titles or positions of each person responsible for the denial.
The competing interests between the Law Department and FOIA officer have not been without conflict, particularly as the department has unofficially encroached upon FOIA duties. As originally reported by the Daily Northwestern, Reid has said he’s had some disagreements with the law department in which he’s pushed for required disclosure. Where FOIA’s objective is transparency, the Law Department’s interest protecting disclosure of records adverse to the City corporation.
Clarity regarding redaction authority has also led to conflict. The most current version, passed June 5, 2014, ceded that authority to the FOIA officer. However, that section was removed when published online two weeks later, on June 23, 2014. Since that time, the Law Department has generally processed redactions.
Attorney-client privilege cited without providing basis
In all cases examined, law staff asserted attorney-client privilege in denials and redactions without providing the “detailed factual basis” for the exemption, as mandated by FOIA regulations. Section 9(a) of the Act requires public bodies to respond to requesters with “a detailed factual basis for the application of any exemption claimed.”
That factual basis, per the Il. Attorney General’s Office, must meet the burden of “demonstrating by clear and convincing evidence” how the responsive records constitute attorney-client communications or work product within the scope of FOIA section 7(1)( m). Merely citing the exemption is not sufficient.
“In meeting its burden, the public body may not simply treat the words ‘attorney- client privilege’ or ‘legal advice’ as some talisman, the mere utterance of which magically casts a spell of secrecy over the documents at issue. Rather, the public body can meet its burden only by providing some objective indicia that the exemption is applicable under the circumstances.” — PUBLIC ACCESS OPINION 17-006
In other words, Law staff can only redact the privileged portions of responsive records, and only those in which it can substantiate that all of required legal elements are satisfied, including:
Demonstrate existence of attorney-client privilege between all parties to the record The client represented is the municipal corporation. By default is not inclusive of all City staff and officials, but rather limited to City officials or staff who, per the American and Illinois Bar Associations:
- “Supervise, direct or regularly consult with the City lawyer concerning the matter in which legal advice sought;”
- “Have authority to obligate the organization with respect to the matter;” or
- “Whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability.”
Demonstrate the communication originated as client request for legal advice or services The withheld communication must have been made by a client to an attorney acting in his or her legal capacity for the purpose of securing legal advice or services.
Demonstrate records weren’t disclosed to third parties Attorney-client privilege is waived if communications are not kept confidential between the defined client and attorney. This includes disclosures to other City staff and officials who do not meet the above client criteria for the issue(s) involved.
Demonstrate how “work product” is privileged Exempt work-product records must be shown to “reveal the shaping process by which the attorney has arranged the available evidence for use in trial as dictated by his training and experience.” Material generated that does not disclose ‘conceptual data’ may be freely discoverable.
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Illinois policy is that everyone is entitled to full and complete information regarding the affairs of City government, and the policies and actions of public officials and City staff. The City government is required to operate openly and provide records quickly. (5 ILCS 140/1.2)
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