CBA Record

CBA SEMINAR EXAMINES CURRENT DEVELOPMENT The State of FOIA in Illinois in 2017 By William A. Zolla, CBA Record Associate Editor T he Illinois Freedom of Informa- tion Act provides that public bodies shall make public records available

represents FOIA requesters. After discussing the evolution of the Illinois FOIA statute, and several recent, highly publicized FOIA cases involving ChicagoMayor Rahm Emanuel and mem- bers of the Chicago Police Department, the panelists focused on the extent to which private e-mail and text messages created by public employees are public records under FOIA. The panel agreed that as a general rule, private communications between individual public employees are discover- able if the communications pertain to the performance of public business. That is, the test is not whether the record at issue is in the government’s possession or control, but whether the record was created for or used by a public body. Therefore, when public officials or employees create a record while engaged in activity that falls within the scope of their public duties, the record is considered a public record created by or for a public body. The panelists also discussed two impor- tant FOIA cases recently decided by the Illinois courts, both of which concerned the issue of when a private entity will be deemed to be subject to FOIA’s disclosure requirements. In the first, Chicago Tribune v. College of DuPage , 2017 IL App(2d)

160274, the Illinois Appellate Court held that a non-profit foundation that solic- ited private donations for the College of DuPage performed a governmental func- tion on the college’s behalf and, therefore, was subject to FOIA. The court empha- sized that a public body’s obligation under FOIA to provide access to public records is not limited to those records in its present possession or control, but also extends to records in the possession of a nonpublic body that has contracted to perform a governmental function on behalf of the public body. In the second case, Better Government Association v. Illinois High School Associa- tion , 2017 IL 121124, the Illinois Supreme Court ruled that the IHSA, a private, not- for-profit unincorporated association that governs and coordinates interscholastic sports competitions for over 800 public and private high schools throughout Illi- nois, is not a public body subject to FOIA because it is an independent legal entity that is neither controlled nor funded by any government body. The Court further held that certain records maintained by IHSA could not be considered the public records of a local school district, whose public and private high schools are members of the IHSA, because IHSA does not perform any governmental function on behalf of the school district. Resources for New Lawyers Just getting starting in the practice of law in Chicago? The CBA offers many resources and programs to help new lawyers. Go to www. chicagobar.org, YLS, New Lawyer Resources to see our comprehensive list and links including MCLE requirements, new admittee to do list, career services, mentoring programs, seminars for new lawyers, practice pointer videos, solo start up boot camp and more.

to any person for copying and inspection. But what constitutes a “public body” or a “public record” under the statute? For example, are public employees’ private e-mails and text messages subject to disclo- sure under FOIA? Is a private entity per- forming work on behalf of a governmental agency considered a public body? How should government agencies prepare for and respond to FOIA requests? These and other questions were addressed in “FOIA 2.0: Critical Updates Examined,” a seminar recently hosted by the CBA. Rob Olmstead, Executive Director of the Illinois Torture Inquiry and Relief Commission, moderated the program, which featured attorney Barbara Adams, Senior Counsel at Holland & Knight, who frequently represents state and local government agencies in disputes over responding to FOIA requests; Sarah Pratt, who has worked since 2013 as a Public Access Counselor in office of the Illinois Attorney General; and attorney Matthew Topic, a partner at Loevy & Loevy and Outside General Counsel for the Better Government Association, who regularly

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The Chicago Bar Association

Myra Colby Bradwell was one of our nation’s leading advocates for women’s rights and played an important role in breaking through the barriers that restricted women from practicing law. As founder and owner of the Chicago Legal News she wrote many editorials about equality for women, and about the need for an association of lawyers in Chicago. Her December 1873 editorial was instrumental in The Chicago Bar Association’s formation in March 1874.

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