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Public Body Failed to Justify Withholding Media Strategies and Documents Labeled “Attorney-Client Privileged” Under FOIA

In Chicago Public Media v. Cook County Office of the President, an Illinois appellate court ruled in favor of a media company that requested records under FOIA relating to a political action committee chaired by a commissioner of the Cook County Board of Commissioners.  While the Cook County Office of the President responded by producing many documents, the office redacted certain records pursuant to Sections 7(1)(f) or 7(1)(m) of FOIA.

The court first considered whether the public body appropriately withheld documents pursuant to Section 7(1)(f), which allows public bodies to withhold “[p]reliminary drafts, notes, recommendations, memoranda and other records in which opinions are expressed, or policies or actions are formulated.”  The court recognized that a record must be both pre-decisional (i.e., antecedent to the adoption of an agency policy) and deliberative (i.e., related to the process by which policies are formulated).  Applying these principles to the emails at issue, which contained edits to a Wikipedia page, draft answers to a reporter’s questions, and a draft speech, the court determined that the public body failed to show that these documents related to the deliberative process for any policy of the public body.  The court noted that purely factual information is generally not exempt from disclosure under Section 7(1)(f).  As a result, the documents were subject to production under FOIA.

The court also found that Section 7(1)(m) of FOIA, which allows public bodies to withhold “[c]ommunications between a public body and an attorney or auditor representing the public body that would not be subject to discovery in litigation,” was inapplicable to the documents at issue because they did not contain confidential legal communications.  The court reasoned that some documents were not sent or received by an attorney, and the records did not contain confidential legal advice.  Even though some emails were marked “confidential” and “attorney-client privileged,” simply labeling the documents as attorney-client privileged was not enough.  Thus, the documents also had to be produced under FOIA.

This case shows that FOIA exemptions are interpreted narrowly and in favor of disclosure.  Moreover, the public body has the burden of showing that these narrow FOIA exemptions extend to the records at issue. Notably, the predecisional exemption generally does not apply to purely factual information. Similarly, labeling documents as “attorney-client privileged” does not make the attorney-client privilege FOIA exemption apply; instead, it is up to the public body to show how the documents involve attorney-client privileged communications.

If you have any questions regarding the FOIA or this case, please contact Tony Senagore or any of our attorneys in the Board Governance/Corporate practice group.

Source:  Chicago Public Media v. Cook County Office of the President, 2021 IL App (1st) 200888