G-347 - 06/26/1984 - FOIA - Ordinances Fo= AC?'
7 (P-07G-90
ORDINANCE NO. G- 347
AN ORDINANCE ADOPTING RULES AND REGULATIONS REGARDING
THE FREEDOM OF INFORMATION ACT
WHEREAS, The Freedom of Information Act Public Act 83-1013, Chapter
116, paragraph 201 et sequitur of the Illinois Revised Statutes becomes effective
July 1 , 1984; and
WHEREAS, the said Freedom of Information Act requires that public
bodies establish certain procedures in order to conform with the provisions of
the said Act; and
WHEREAS, the provisions of the Freedom of Information Act requires the
amendment of certain provisions of present Village Ordinances as hereinafter,
set forth;
NOWT, THEREFORE, BE IT ORDAINED BY THE PRESIDENT AND BOARD OF TRUSTEES
OF THE VILLAGE OF OAK BROOK, DU PAGE AND COOK COUNTIES, ILLINOIS as follows:
Section 1 : That the "Village of Oak Brook Freedom of Information Act
Rules and Regulations attached hereto labelled Exhibit A and hereby made a part
hereof, are hereby adopted and shall be utilized by the Village to carry out the
provisions of the Freedom of Information Act.
Nl� Section 2: That Section 1-416 of the Village of Oak Brook Traffic
Regulations, Appendix C to the Code of Ordinance of the Village of Oak Brook be
and is hereby amended to read as follows:
1-416 Furnishing Copies; Fees. The Village
of Oak Brook may furnish copies of an Oak
Brook Police Traffic Accident report that has
been investigated by the Oak Brook Police
Department and shall paid a fee of $.10 per
page for each such copy.
Section 3: That this Ordinance shall be in full force and effect from
and after its passage and approval pursuant to law.
Section 4: That all Ordinances or parts thereof in conflict with the
provisions of this Ordinance be in the same are hereby repealed to the extent of
such conflict.
PASSED this 26th day of June 1984•
Ayes: Trustees Imrie, Listecki, Maher, Philip, Rush and Watson
Nays: None
Absent: None
APPROVED this 26th day of June 1984•
1-4&w ,Ww
Village President
Attest:
V' lge Clerk
Approyed as to Farm:
Vil age Attorney
4 Published 6/27/84 Pamphlet Form
Date Paper
Not Published
VILLAGE OF OAK BROOK FREEDOM OF INFORMATION ACT
�. RULES AND REGULATIONS
Section 1 : Summary and Purpose.
These rules and regulations are established to implement the provisions
of the Freedom of Information Act, Public Act 83-1013, Illinois Revised Statutes
Chapter 116, paragraph 201 , et sequitur.
Section 2: Definitions.
Except at otherwise defined herein the terms used herein shall have the
same meanings as those set forth in the Freedom of Information Act, Chapter 116,
paragraph 202.
Section 3: Procedure for Requesting Public Records.
A. Requests for public records should be submitted to the Village
Manager, Village of Oak Brook, 1200 Oak Brook Road, Oak Brook, Illinois 60521 .
B. Form and Content of requests for records.
1 . Requests in accordance with the Freedom of Information Act and
these Rules and Regulations shall be made in writing on forms provided by the
Village of Oak Brook.
2. Oral requests for public records may be honored at the discretion
of the Village Manager for records such as: accident reports, approved minutes of
public meetings and Village Ordinances. However, the required response times and
appeal procedures contained in the Freedom of Information Act and these Rules and
Regulations do not apply to oral requests.
3. A written request for public records shall contain the following
information:
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a. The requestor's full name, address and telephone number.
b. A brief description of the public records sought, being as
specific as possible.
c. Whether the request is for inspection of public records,
copies of public records or both.
d. Whether the copies of the public records requested should be
certified.
Section 4: Procedures for Response to Requests for Public Records
A. Time Guidelines - The Village shall respond to a written request for
public records within seven (7) working days after receipt of such request, except
when said time is extended pursuant to the provisions of Chapter 116, paragraph 203
(d) . Requests submitted by mail shall be deemed received only upon actual receipt
by the Village, regardless of postmark or date of mailing. All requests shall be
\► date stamped upon their receipt.
B. Types of Responses to Requests for Public Records.
1 . The Village shall respond to a request for public records in the
manner authorized pursuant to the Freedom of Information Act.
2. Upon approval of requests for public records, the Village Manager
may either provide the materials immediately, give notice that the materials shall
be made available upon payment of reproduction costs or give notice of the time and
place for inspection of records.
3. Extensions of time to respond to requests for records or denial
of a request for public records shall be made in writing to the requestor and shall
include all information required by the Freedom of Information Act.
4. In determining the applicable time periods for production of
records, notices of extension, and notices of denial, the seven (7) or fourteen
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(14) working day periods shall not include the date the request was initially
received. Supplemental, amended or additional requests shall not relate back the
initial time of filing but shall be considered as new requests for purposes of
determining all applicable time periods.
5. If the Village Manager reasonably believes that the records
requested might be for the purpose of furthering a commercial enterprise, the
requestor shall be required to supply a further statement or explanation of the
purpose for which the production of records is sought, which statement shall be
under oath and state that the information sought in such public records will not be
used as part of any solicitation on behalf of either a profit or not for profit
entity. The applicable time periods for the production of public records shall be
measured from the date that such explanatory statement is received by the Village.
Section 5: Procedures for Appeal of a Denial.
Any requester whose request has been denied by the Village Manager may
appeal the denial to the Village President, Village of Oak Brook, 1200 Oak Brook
Road, Oak Brook, Illinois 60521 . The Village President shall respond to such
appeal in the manner provided in Chapter 116, paragraph 210. Failure to respond
within seven (7) working days may be considered by the requestor to be an
affirmation of the denial of the request for public records.
Section 6: Procedures for Providing Public Records to Requestors.
A. Inspection of Records
1 . Public records will be made available for inspection during normal
working hours of the Village of Oak Brook in the office wherein the records are
located. Normal working hours are Monday through Friday inclusive 8:30 A.M. to
5:00 P.M. , except holidays. No original records may be removed from Village
Offices at any time. However, inspection of an exployee' s personnel records by that
employee or his representative shall be governed by the provisions of Public Act
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83-1104, Chapter 48, paragraph 2001 , et sequitur, Illinois Revised Statutes.
2. Documents which the requestor wishes to have copied shall be
specifically identified and segregated during the course of inspection. An
employee of the Village may be present throughtout the inspection.
B. Copies of Public Records
1 . All copies of public records shall be made by Village employees or
their authorized agents. Copies of public records shall be provided to the
requestor only upon payment of all charges which are due. When copies of
voluminous records are requested (copying charges of $5.00 or more) the Village may
require payment before the copies are made.
2. No charges shall be imposed if the requestor is a public body or a
person acting in an official capacity as an officer of that public body. Charges
for copying may be waived by the Village Manager only upon specific written request
at the time of the request for the public records and in accordance with Chapter
116, paragraph 206 (b) .
3. Copies of records requested will be available for pick-up at the
Village of Oak Brook. Copies of public records will be mailed to a requestor only
upon the requestor depositing with the Village in advance all postage and copying
charges associated with the request.
4. Only Village of Oak Brook personnel shall be permitted to use
Village of Oak Brook equipment or search through Village files, records or storage
areas.
5. Charges for copies of records shall be as follows:
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Type of Duplication Per Copy Charge
Paper Copy from Paper Original
`�-- (Maximum Size 8 1/2" % 14") $ .10 per page
Computer print-out/Paper $ .15 per page
Certification of Public
Records $1 .00
Maps of Plats $ .35 per page
Charges for Village records in book or pamphlet form shall be assessed for such
materials based upon the cost of such materials incurred by the Village.
Copying of any materials that require outside duplication shall be charged at a
rate based upon the cost of such copying or reproduction.
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VILLAGE OF OAK BRO(�,�4inutes -2- June 26, 1984
C. ORDINANCE NO. G-346 - AN ORDINANCE AMENDING ARTICLE IX
OF APPENDIX D Personnel Rules and Regulations OF THE
CODE OF ORDINANCES OF THE VILLAGE OF OAK BROOK
Trustee Watson moved, seconded by Trustee Rush. . .
To pass and approve Ordinance No. G-346 as presented and waive
reading of same.
ROLL CALL VOTE: Ayes: Trustees Imrie, Listecki, Maher, Philip; Rush, Watson
and President Cerne
Nays: None So ordered.
0D_ ORDINANCE NO. G-347 - AN ORDINANCE ADOPTING RULES AND
REGULATIONS REGARDING THE FREEDOM OF INFORMATION ACT
Trustee Listecki moved, seconded by Trustee Rush.. .
To pass and approve Ordinance No. G-347 as presented and waive
reading of same.
ROLL CALL VOTE: Ayes: Trustees Imrie, Listecki, Maher, Philip, Rush, Watson
and President Cerne
Nays: None So ordered.
`- E. BUTTERFIELD ROAD/22ND STREET/CAMDEN COURT
1 ) VILLAGE OF OAK BROOK/IDOT AGREEMENT
Trustee Imrie moved, seconded by Trustee Philip.. .
To authorize the Village President and Village Clerk to execute the
Agreement between IDOT and the Village of Oak Brook for road and traffic
t
signal improvements at the subject intersection.
ROLL CALL VOTE: Ayes: Trustees Imrie, Listecki, Maher, Philip, Rush, Watson
and President Cerne
Nays: None So ordered.
2) ORDINANCE NO. 5-531 - AN ORDINANCE AMENDING THE TRAFFIC
ORDINANCE OF THE VILLAGE OF OAK BROOK TO REGULATE PARKING
AT THE INTERSECTION OF BUTTERFIELD ROAD 22ND STREET CAMDEN COURT
Trustee Imrie moved, seconded by Trustee Listecki. . .
To pass and approve Ordinance No. 5-531 as presented and waive
reading of same.
ROLL CALL VOTE: Ayes: Trustees Imrie, Listecki, Maher, Philip, Rush, Watson
and President Cerne
Nays: None So ordered.
3) ORDINANCE NO. 5-532 - AN ORDINANCE PROHIBITING THE
CONNECTION OF SANITARY OR INDUSTRIAL WASTE SEWERS TO
STORM WATER DRAINAGE SYSTEMS
'frustee imrie moved, seconded by Trustee Listecki. . ..
To pass and approve Ordinance No-S-532 as presented and waive
reading of same.
ROLL CALL VOTE: Ayes: Trustees Imrie, Listecki, Maher, Philip, Rush, Watson
and President Cerne
Nays: None So ordered.
VILLAGE OF OAK BROOK MINUTES -2- June 26, 1984
NM L_
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Local ISSR
4 Government Law. March 1984 ?f"
Vol. 20, No. 6
Published by Illinois State Bar Association for distribution to the members of the Section on Local Government Law
Statements or expressions of opinion or of comments appearing herein are those of
the editors and 'contributors, and not necessarily those of the association or section.
THE FREEDOM OF INFORMATION ACT
House Bill 234, Public Act 83-1013
By John H. Brechin
Attorney at Law, Oak Brook
Intent of the Act (5) The records are arguably subject to nondisclosure by
The Local Records Act is primarily aimed at the required virtue of an exemption and require further examina-
procedures for retention or destruction of documents man- tion;
dating disclosure only of financial documents. On the other (6) Need to consult another public body which has a
hand,the Freedom of Information Act is designed specifically substantial interest in the determination or subject
to be a disclosure statute intending "that all persons are en- matter;
titled to full and complete information regarding the affairs (7) The request would be unduly burdening or interfer-
of government and the official acts and policies of those who ing with the operations of the public body.
represent them as public officials and public employees."The It appears that if this last category of refusal or delay is
Act is not intended however, "to be used to violate individual invoked that the requester must be extended the right to con-
privacy nor for the purpose of furthering a conunercial enter- fer with the public body to amend the request to make it
prise, or to disrupt the duly-undertaken work of any public manageable. Moreover, if the delay or refusal is based upon
body. . . ."This intent appears to be consistent with the logic the fact that compliance would unduly burden its operations,
expressed in some of the court decisions construing the Local it must notify the requester in writing specifying the reasons
Records Act which have noted a need to balance the public's why it would be unduly burdensome.
right to know against the practical necessities of government.
People ex rel. Better Broadcasting Association v Keane, 17 Most importantly the Act authorizes public bodies to pro-
People
1090, (1973); Lopez v Fitzgerald, 76 IlL2d 107 mulgate rules and regulations in conformity with the Freedom
(1979) of Information Act regarding procedures for requesting
records including:
Required Disclosure (1) When and where records may be available;
(2) Persons from whom the records may be obtained.
Public records subject to disclosure include all public
records except those specifically exempted from the coverage It is highly recommended to avoid confusion that such
of the Act. Disclosure must be: regulations be adopted by a public body in ordinance or
(1) Made pursuant to a written request; resolution form to specify as completely as possible all the
(2) Complied with or denied within seven working days invoke in order o assure orderly and expeditious responses
after receipt. Denial must be in writing.
(3) Time limits may be extended for reasons specified in to requests for records.
the Act for an additional seven working days so long In addition to the required disclosures in Section 3, Sec-
as the requester is notified in writing of the specific lion 4 plao;s additional burdens upon public bodies. That sec-
reason for delay. tion requires prominent display and disclosure, if requested,
The only permitted reasons for delay and the additional of a brief description of the public body including:
seven days are as noted in the Act, including:
(1) A short summary of its purpose;
(1) The records are stored in other locations; (2) A block diagram giving its functional subdivisions;
(2) The requests requires collection of a substantial (3) The total amount of its operating budget;
number of records; (4) The number and location of all of its separate offices;
(3) Because the request is in categorical terms an exten- (5) The number of full time and part-time employees and,
sive search is required to respond; (6) The identification and membership of any board,com-
(4) The requested records cannot be found and an addi- mittee or council which operates in advisory capacity
tional search is required; or which exercises control over its policies.
In addition to this also, you must provide and display: (12) Library circulation and order records identifying
"A brief description of the methods whereby the public may library users with specific materials; (1)
request information and public records designating by titles (13) Minutes of executive sessions until available to the
and addresses those employees to whom requests for public public under the Open Meetings Act; (m) ,rte
records should be directed and any fees allowable under (14) Communications between the public body, its at-
Section 6 of this Act:' torney or attorneys; (n)
(15) Information in a school regarding procedure for the
It is submitted that all of this information can and should be evaluation of faculty members; (o)
incorporated within the "rules and regulations" authorized (16'; Administrative and technical information associated
under Section 3(g) of the Act. with computers and data processing systems; (p)
(17) Documents pertaining to collective bargaining
agreements or proposed collective bargaining agree-
Exemptions means; (q)
Section 7 of the Act sets forth a number of exemptions (18) Material pertaining to financial and marketing trans-
which probably will be construed very narrowly so as to max- actions of the public body; (r)
imize the rights Of the public to disclosure. Thus,evaluation (19) Records relating to real estate purchase negotiations
of whether any material falls within exemptions should be until those negotiations have been completed; (s)
reviewed most carefully. The exemptions in part include: (20) Proprietary information and records relating to inter-
governmental risk management or joint self-insur-
(1) Information specifically prohibited from disclosure ance; (t)
by federal or state law or rules or regulations adopted (21) Information concerning university, student or
pursuant thereto; (a) employee grievance or disciplinary matters; (u)
(2) Information which would constitute a "clearly unwar- (22) Course or research material used by faculty
ranted invasion of personal privacy," unless consented members; (v)
to in writing by the individual subjects of the infor- (23) Information related solely to internal personnel rules
mation. Such exempted information includes: (b) and practices (w)
i. Personal information maintained with respect to -
clients, patients, residents, students or other in-
dividuals receiving social,medical,education or Discussion of Exemptions
custodial care directly or indirectly from federal The Federal Freedom of Information Act, upon which the
agencies or public bodies. Illinois Freedom of Information Act is based, has nine ex-
`. ii. Personal information maintained with respect to emptions. It is believed, that like the Federal Act, the ex-
pub lc cod appointees nt other officials of any emptions in the Illinois Act are exclusive and are discretionary
public body or applicants for such positions. exemptions. That means that although some material may be
iii. Personal information regarding any person en- exempt,the disclosure of that will still remain discretionary.
gaged in professional or occupational registration Chrysler Corporation v Brown, 441 U.S. 281, 293 (1979).
or licensure;
iv. Information required of any taxpayer in connec-
tion with assessment or collection of taxes;
v. Information revealing the identity of persons who
file complaints with law enforcement agencies.
(3) Investigatory records with certain qualifications; (c) ISBA
(4) Records of criminal arrest not leading to convictions HAS TWO OFFICES TO SERVE YOU
or when charges have been dismissed in certain in-
StanCCS; (d) To fill office the needs of both Chicago and downstate lawyers,ISBA main-
(5) Criminal history record information maintained by tams its headquarters in Springfield and a Regional office in
Chicago. Each location:
state or local criminal justice agencies with certain
exceptions; (e) • Has ISBA staff to answer lawyer inquiries about bills and amend-
ments from the Legislature.
(6) Preliminary drafts, notes, recommendations and • Provides meeting rooms for committees,councils and other small
other records in which opinions are expressed or groups when available.
policies are formulated. (f) This exemption is lost • Answers inquiries about ISBA publications,pamphlets,etc.(Free
however when the record is publicly cited and identi- Publication Brochure available)
fied. • Provides displays of publications and pamphlets.
�.. (7) Trade secrets and commercial or financial informa- • Provides information re ISBA membership and ISBA section
lion obtained from third parties; (g) membership (Section membership includes sub scription to a
newsletter)
(8) Proposals and bids; (h)
(9) Valuable formulae,designs or other data which could • Springfield office has library for visiting members.
"reasonably be expected to produce private gain or • Springfield office answers professional ethics inquiries.
public loss"; (i) SPRINGFIELD CHICAGO
(10) Test questions, scoring keys and other examination Illinois Bar Center Regional Office
data, 0) Springfield, IL 62701 332 N. Michigan Ave.
(11) Certain architects and engineers plans for buildings; (217) 525-1760 or Chicago, IL 60601
(k) (800)252-8908 (312)726-8775
2
Section 7(a)exempts from disclosure material specifical- 1. Whether the information was obtained in aid of an agen-
ly prohibited from disclosure by federal or state law or rules cy function, provided voluntarily and would not have
or regulations adopted pursuant thereto. As interpreted under been provided by the private business entity if it were
the comparable federal act this would exempt from disclosure subject to disclosure.
material only if the statute involved: 2. Whether disclosure would cause substantial competitive
harm to the competitive position of the business entity
A. Requires that the matters be withheld from the public from whom the information was obtained.
in such a manner as to leave no discretion on the issue
or, The.types of materials exempt under this exemption include
�- information regarding pro
B. Establishes criteria for withholding or refers to par- fits, market shares, customer lists
ticular types of matters to be withheld. Under this two-
and costs, profit figures and business sales statistics. ;
part test material will be exempt from disclosure if Commercial information will be confidential if disclosure
it meets either of the two tests. would either:
Examples of this type of information would include certain a) Impair government's ability to obtain necessary infor-
federal census information,tax return information,the Trade mation in the future, or
Secrets Act(18 U.S.C. 1905)and certain Illinois statutes such b) Cause substantial harm to the competitive position of
as the Juvenile Court Act. the entity from which the inform-ttion was obtained.
Section 7(b)exempts from disclosure material which would Section 7(n) recognizes as an exemption from disclosure
constitute a clearly unwarranted invasion of personal privacy the attorney/client privilege which would include the work
except when disclosure is consented to by the individual in- product privilege.The attorney work/product privilege pro-
volved or it bears on the public duties of an individual. This tects material prepared by an attorney and actual contempla-
exemption exempts from disclosure information about indi- tion of litigation which sets forth the attorney's thought proc-
viduals "in personnel and medical files and similar files" if esses or litigation strategies.
disclosure "would constitute a clearly unwarranted invasion The attorney/client privilege exempts material involving
of personal privacy."To be exempt the information must per- "confidential communications between an attorney and his
tain to a particular individual and reflect a balancing of the client relating to a legal matter for which the client has sought
public's right to know against the invasion of privacy.Material professional advice."Mead Data Central, Inc. v Department
concerning a corporation or association will not be exempt of the Air Force, 566 F.2d 242, 252 (1977).
since those organizations do not have protectable privacy in- The privileges recognized in this exemption should be
terests. Disclosure of the names and duty stations of postal monitored carefully especially in light of the provisions of
service employees will also not be exempt since no privacy the Act which note that certain statements and interpretations
interest is invaded.National Western life Insurance Company adopted by the public body are public records and otherwise
u United States,512 FSupp.454,461 (M.D.Tex. 1980). Ex- subject to disclosure. Moreover, material publicly cited and
amples of the types of information exempted include infor- identified by the"head of the public agency" is arguably not
mation concerning marital status, legitimacy of children,
medical condition, welfare payments, family fights and ma and burden thrust upon public bodies will be to balance
exempt from disclosure as a public record. Thus,the dilem-
reputation. Also included in this exemption are the identities
the desire and need for competent legal advice on a variety
of individuals who provide information to law enforcement
of matters and at the same time risk mandatory disclosure
agencies.
of such advice if it either adopts that advice as a matter of
However,disclosure will be mandated in instances in which policy or publicly cites it.
the information will inform the public of proven violations
of the public trust, e.g., bribes, official misconduct. I would refer to Section 7(f) regarding preliminary mat-
ters as a type of deliberative process privilege. This exemp-
Section 7(c)exempts investigatory records from disclosure. tion is based upon the need to encourage open and frank
The purpose of this exemption is to avoid interference with discussions on policy matters and to protect against premature
prospective or actual enforcement proceedings of a civil, disclosure policies before they are adopted in order to pro-
criminal or administrative nature and is designed to protect tect against public confusion by disclosure of the reasons and
against the premature disclosure of evidence or information. rationales that are not ultimately adopted for the agency's ac-
N.L.R.B. x Robbins, 437 U.S. 214 (1978). This exemption lions.Russell x Department of Air Force,682 F.2d 1045, 1048
is also designed to protect the identities of confidential sources (D.C.Cir. 1982). It is believed that this exemption will apply
and will generally require the withholding of the names of only where the communications involved antedates the deci-
persons investigated but not charged. It,in essence,codifies sion involved and is a`=direct part of the deliberative process
a recognition of the protectable privacy interests of informants in that it makes recommendations or expresses opinions on
and persons under investigation but not charged. This exemp- legal or policy matters." Vaughan v Rosen,523 Fed.2d 1136,
tion would also allow withholding of investigatory records 1143-44 (D.C. Cir. 1975).
which reflects special techniques or investigatory procedures The types of materials arguably within the scope of this
not known to the public. exemption would include advisory opinions, recommenda-
Section 7(g)(h)and(k)are intended to protect the interests tions and deliberations which are utilized in the formulation
of commercial enterprises that submit information to the of policy.However,those documents as noted earlier will lose
government. This includes trade secrets and information their exemption if they are expressly incorporated into the
which is commercial or financial obtained from a person and final decision.N.L.R.B. v Sears, Roebuck& Co., 421 U.S.
is confidential or privileged. In determining whether material 132, 161 (1975).This exemption, moreover, will not serve to
is exempt, the courts have fashioned two tests: protect from disclosure primarily factual matters.
3
G- 111 q I*w
Section 7(w)purports to exempt information relating to the Appeal Process
internal personnel policies of the public body. The courts'
interpretations of this type of provision have varied widely, The following process would govern denials of requests for
some noting that the exemption exempts only housekeeping records:
matters. Cox v Department of Justice, 576 R2d 1302, (1) Written notice to the head of the public body. (Note
1309-1310(8th Cir. 1978)while other circuits have given this that the Act is vague as to what is the head of a public
exemption a more expansive meaning to exempt operating body especially in terms of a manager form municipal-
rules, guidelines and manuals of procedure for government ity;)
nvestigators or examiners, Caplan v Bureau of Alcohol, (2) Decision by the head of a body within seven working
�Tobacco and Firearms, 587 F.2d 544(2d Cir. 1978). At least days after the notice of appeal;
one court has developed a two-part test to determine whether (3) If denied, a suit for injunctive or declaratory relief
or not the material is exempt under this exemption.That test in a court either where the principal office of the public
will find material exempt from mandatory disclosure if: body is or where the requester resides;
A. The document is predominately internal, and (4) The court may require production of documents after
B. Its disclosure significantly risks circumvention of agen- examining in-camera the records;
cy regulations or statutes. Crooker v Bureau of (5) The burden of proof is on the public body;
Alcohol, Tobacco and Firearms, 670 F.2d 1051, 1074 (6) Noncompliance with an order of court can be punished
(D.C. Cir. 1981). by contempt;
One other important aspect of exemptions is that material (7) The court can award attorney fees under certain
which is exempt and commingled with nonexempt material circumstances.
must be separated so that nonexempt material can be dis- The EFFECTIVE DATE of the Act is July 1, 1984. Clear-
closed. In addition, except as certain privacy or contractual ly,the need to create an "index of records"as required under
rights might be involved,a public body may be free to disclose Section 5 of the Act which mandates a "reasonably current
information which would be otherwise exempt since the ex- list of all types or categories of records under its control
emptions are not mandatory but only directory. . . .reasonably detailed in order to aid persons in obtaining
access to public records pursuant to the Act"justifies im-
Denials of Requests mediate action on the part of Illinois units of local govern-
ment to comply with this mandate. Beyond compliance of
Denials of requests: the terms of Section 5 such an index will be absolutely essen-
(1) Must be made in writing; tial in order to assure compliance with the relatively short
1` (2) Must state the reason for the denial; seven-day period for disclosure of records and should
(3) Must state the names and titles or positions of per- minimize the amount of staff time expended in searching and
sons responsible for the denial; and retrieving requested records.
(4) Must notify the person that they have a right to ap-
peal to the "head of the public body."
In noting the reasons for the denial the specific exemptions Costs—Fees
in Section 7 must be cited and if the head of the public agen- The cost of complying with the Act will be extensive both
cy denies the appeal the person must be informed of his right in terms of initial preparation of the required information,
to judicial review as provided in Section 11 of the Act. update of the required information and listings not to speak
In addition to the procedural requirements regarding denial, of processing of individual requests. The cost which may be
the public body must also create a separate file regarding its recovered for preparation of these documents is limited under
denials indexed as to the type of exemption asserted and, in- Section 6 to fees "reasonably calculated to reimburse its ac-
sofar as possible, the types of records requested. tual cost for reproducing and certifying public records" and
may not include cost for arty search or review and may not
exceed the "actual cost of reproduction and certification
THE BILL OF RIGHTS: unless otherwise provided by state statute." This begs the
Fundamental Freedom question of whether or not, for example, you can charge 10
cents a copy for a xerox copy when your actual cost is four
sibilities.A concici
A publication the ISBA Section on Individual Rights and o cents.The Local Records Act,on the other hand,allows you
se,up-to-date handbook—for lawyers,educatucat orss,,
college students,84 pages.Covers 23 facets of the Bill of Rights,from (paragraph 43.113)the actual cost of such copies plus a ser-
religious freedom to reservation of local power.Extensively footnoted. vice charge of 15 percent Of the cost.
Excellent reference for practice,for giving talks on Bill of Rights,for
education purposes.Written and edited by Lawrence Schlam,Professor The Illinois Act(Section 6(b))authorizes a waiver or reduc-
of Law, Northern Illinois university College of Law. tion of fees associated with the cost of copying documents.
1 to 5 copies.........................$2.00 each Since the statute in question provides few standards for mak-
5 to 24 copies........................$1.60 each ing a decision regarding waiver or reduction of fees,it is im-
25 or more copies...................$1.33 each portant to review the comparable cases interpreting the
Publications Department
Illinois State Bar Association Federal Freedom of Information Act to ascertain what those
Illinois Bar Center standards entail. Essentially in this regard the courts have held `...
Springfield, IL 62701 that a fee waiver/reduction decision will not be disturbed
(Make check payable to Illinois State Bar Association) unless it is clearly arbitrary or capricious.The United States
Attorney General in 1974 noted the following in this regard:
4
"In its consideration of the matter, the agency need not nonexempt information.In interpreting the Federal Freedom
employ any particular formalized procedure,and may draw of Information Act the courts have required agencies to
upon both special expertise and general knowledge con- prepare an itemized index correlating any documents withheld
- cerning such matters as the size of the public to be with a specific exemption from the Act and the justification
benefited, the significance of the benefit, the private in- given by the agency for its refusal. Vaughn v Rosen,484 R2d
terest of the requester which the release may further, the 820, 827 (D.C. Cir. 1973)cert. denied, 415 U.S. 977 (1974).
usefulness of the material to be released,the likelihood that
tangible public good will be realized, and other factors Attorney Fees
which may be pertinent to the appropriateness of public Considerable concern has been expressed over the provi-
`-- payment.Deliberate,irrational discrimination between one sion regarding attorney fees and the possibility of a court
case and the next is of course improper; but neither is it
award of these.The federal provisions allow award of attorney
necessary to develop a system of rigid guidelines or inflex- fees if a plaintiff has "substantially prevailed"but is discre-
ible case precedents:'
tionary with the court. This presents atwo-part test..
In reviewing requests for waiver or reduction of fees it will
1. Did the plaintiff show that the suit was reasonably
be important to identify the indentity of the person making
the request for records and the nature of the record informa- necessary to obtain the information and,
2. Is the plaintiff entitled to an award.
tion sought.
"The identity of the requester and whether his purpose for Under this latter test to determine entitlement four criteria
seeking the information is academic,journalistic,commer- are utilized:
cial or of some other public or private nature and the 1. Is public benefit derived from the case?
character of the information itself can guide the agency's 2. Is there a commercial benefit to the complainant?
determination.If after considering such factors,the agen- 3. What is the nature of the complainant's interest in the
cy concludes that furnishing particular information will not records sought?
primarily benefit the general public but rather will primari- 4. Did the government's withholding have a reasonable
ly benefit the individual requester and the agency then basis in law?Fenster v Brown,617 F.2d 740,742(D.C.
denies a request for a fee waiver on that basis, its denial Cir. 1979).
of a waiver will not be arbitrary and capricious." Eudey
v Central Intelligence Agency,478 F.Supp. ll75, 1177(1979). Conclusion
It should be carefully noted that the indigeney alone will Local governmental officials and other units of government
not be a sufficient basis for allowance of a fee waiver or fee
{ reduction. The elimination of any indigency standard in the are rightfully concerned over the potential impacts of the 11
Freedom of Information Act shows that the "public interest" linois Freedom of Information Act. The Act, on the other
as explained above is the appropriate standard and not the hand, for the first time provides a reasonably complete pro-
financial status of the individual record requester. cedural framework for the processing of record requests
which was lacking in the Local Records Act. The develop-
Indexing ment of the law in regard to this Act will in a large part de-
pend upon the good faith efforts of public bodies to comply
The Illinois Act requires a type of indexing(Section 5)and therewith as well as the prudent exercise by the public of the
under Section 8 requires the segregation of exempt from rights granted therein.
iSBA
NEWSLETTER BINDERS
Here's what you need to hold those ISBA newsletters. An attractive and rugged Navy Blue Leatherette binder that
is built to last.
• Holds up to 100 copies of newsletters.
• Has clip-on index holder on spine. Names of newsletters and volume number can
be typed on slip and inserted in holder.
• Gold lettering on front and spine.
• Measures I I 1 by 10'A inches with 2 inch spine.
Price: $7.50 (this includes postage and handling charges).
Make check payable to Illinois State Bar Association.
Send orders to: Director of Publications
Illinois State Bar Association
Illinois Bar Center
Springfield, Illinois 62701
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