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City Must Disclose Settlement-Related Letter from Private Attorney in Response to FOIA Request

By February 20, 2023February 28th, 2023News, The Extra Mile Newsletter

In Public Access Opinion 22-013, the Public Access Counselor (PAC) found that the City of Chicago violated FOIA when it denied a request for a letter that was sent to the City from a private attorney on behalf of his clients, even though the City argued that the letter concerned settlement negotiations.

In response to a FOIA request from a journalist, the City withheld a letter from a private attorney on behalf of clients pursuant to Section 7(1)(a) of FOIA, which exempts from disclosure information specifically prohibited from disclosure by other state and federal laws. Specifically, the City asserted that the disclosure of settlement negotiations was prohibited from disclosure by federal and state rules of evidence and discovery. The City claimed that disclosure of the letter would “eviscerate the City’s ability to litigate and negotiate cases and would not serve any public interest.” Upon review, the PAC concluded that restrictions on discovery are inapplicable to the public’s right to access records pursuant to FOIA and does not provide a basis for denying records under FOIA Section 7(1)(a).

The PAC also rejected the City’s argument that the letter was exempt from disclosure pursuant to FOIA Section 7(1)(f) as part of a pre-decisional deliberative process. Because the letter was prepared by a private attorney on behalf of clients whose interests were independent of the City’s interests, the letter did not contain the City’s internal decision-making process, and was thus not an inter- or intra-agency communication subject to the pre-decisional exemption under FOIA.

This opinion indicates that public bodies may be required to disclose documents containing settlement discussions, if those documents are prepared by third parties whose interests are independent of the public body’s interests.  At the same time, such documents may contain information that could be redacted pursuant to other FOIA exemptions.  If your district receives a FOIA request that may cover settlement-related documents, contact your counsel to consider whether any exemptions apply.