Chicago Public Media v. Cook County Office of the President ( 2021 )

Digitally signed
by Reporter of
Decisions
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Illinois Official Reports to the accuracy
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this document
Appellate Court Date: 2022.08.30
13:32:32 -05'00'
Chicago Public Media v. Cook County Office of the President,
2021 IL App (1st) 200888Appellate Court CHICAGO PUBLIC MEDIA, Plaintiff-Appellant, v. THE COOK
Caption COUNTY OFFICE OF THE PRESIDENT, Defendant-Appellee.
District & No. First District, Fifth Division
No. 1-20-0888
Filed June 25, 2021
Decision Under Appeal from the Circuit Court of Cook County, No. 18-CH-13891; the
Review Hon. Anna H. Demacopoulos, Judge, presiding.
Judgment Affirmed in part and reversed in part.
Counsel on Joshua Burday, Matthew Topic, Merrick Wayne, and Shelley
Appeal Geiszler, of Loevy & Loevy, of Chicago, for appellant.
Kimberly M. Foxx, State’s Attorney, of Chicago (Cathy McNeil Stein,
Silvia Mercado Masters, and Martha-Victoria Jimenez, Assistant
State’s Attorneys, of counsel), for appellee.
Panel JUSTICE ROCHFORD delivered the judgment of the court, with
opinion.
Justices Hoffman and Cunningham concurred in the judgment and
opinion.
OPINION
¶1 Plaintiff-appellant, Chicago Public Media, requested the production of records under the
Freedom of Information Act (FOIA or Act) (5 ILCS 140/1 et seq. (West 2018)), relating to a
political action committee that was chaired by a commissioner of the Cook County Board of
Commissioners (CCB). In response, defendant-appellee, Cook County Office of the President
(OCCP), produced numerous documents with redactions, which OCCP asserted were exempt
under FOIA. Plaintiff filed an action alleging a willful violation of FOIA and requested
declaratory and injunctive relief against OCCP. The parties filed cross-motions for partial
summary judgment. After an in camera inspection of the records at issue, the circuit court
denied plaintiff’s motion for partial summary judgment, except for one specific record, and
granted partial summary judgment in OCCP’s favor, except for the same record. After a motion
for rehearing, the circuit court found that certain redacted material on another record was not
exempt and should be produced. Plaintiff has appealed and argues that the court erred in finding
that the remaining withheld material was exempt under sections 7(1)(f) and 7(1)(m) of FOIA
(id. § 7(1)(f), (m)). We agree with plaintiff that the asserted exemptions did not apply.
¶2 On July 20, 2018, Dan Mihalopoulos, on behalf of plaintiff, submitted an initial request
under FOIA by letter to Laura Lechowicz Felicione, Special Counsel and FOIA Officer of
OCCP. Plaintiff sought
“[a]ny and all correspondences, written or electronic, that contain the key words ‘Cause
the Effect’ or ‘Off the Sidelines’ and were sent by Cook County Commissioner Bridget
Gainer or any of the following employees of the Cook County Board of
Commissioners: Margaret Cox, [Catherine] Sabo, Abin Kuriakose, Michaela Vargas,
[or] Marty Malone.”
¶3 Cause the Effect Chicago (formerly known as Off the Sidelines Chicago) is a registered
political action committee founded and chaired by Bridget Gainer, a commissioner of the CCB.
Catherine Sabo, a former employee of the CCB, acted as treasurer. The organization seeks to
encourage and empower women to attain public offices and “to effect change” on issues that
matter to women.
¶4 In a July 27, 2018, letter to Mihalopoulos, pursuant to section 3(e)(vii) of the Act (id.
§ 3(e)(vii)), Felicione extended the time for OCCP to respond to the request by five days as
there was a “need for consultation *** among two or more components of a public body having
a substantial interest in the determination or in the subject matter of the request.” In a July 31,
2018, letter, Felicione informed Mihalopoulos that the request was unduly burdensome and
asked him to narrow the request. Subsequent to these letters, Felicione and Mihalopoulos
conferred by telephone. Felicione informed Mihalopoulos that the requested documents were
on “two separate tracks,” with the vast majority of the records on the personal e-mail server of
Commissioner Gainer and others on the Cook County e-mail system. The Cook County Bureau
of Technology can only generate records that are on the county system. After their discussions,
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plaintiff agreed to narrow its request to the period of time after January 1, 2015. OCCP agreed
that it would produce responsive e-mails that were on the Cook County e-mail server by August
10, 2018, and Commissioner Gainer would produce a log of her private e-mails.
¶5 In the meantime, on August 1, 2018, plaintiff submitted a second request to OCCP for
“[a]ny and all correspondences written or electronic, between the Office of the President or its
employees and Cook County Commissioner Bridget Gainer or her staff since July 19, 2018,
regarding [Mihalopoulos’s] Freedom of Information Act request to the Office of the President
filed on July 20, 2018.”
¶6 On August 10, 2018, in response to the first request, OCCP produced all of the responsive
e-mails (88 pages of e-mail records), which had been located on the Cook County e-mail
system. OCCP redacted personal information (private e-mail addresses and cell phone
numbers) pursuant to sections 7(1)(b) and 7(1)(c) (id. § 7(1)(b), (c)) and other material (alleged
to be deliberative) under section 7(1)(f) (id. § 7(1)(f)).
¶7 OCCP had responded previously to the second request, on August 9, 2018, and produced
nine e-mail records, which had been located on the Cook County system. OCCP redacted
private e-mail addresses pursuant to sections 7(1)(b) and 7(1)(c) and attorney communications
pursuant to section 7(1)(m) (id. § 7(1)(m)).
¶8 On November 7, 2018, plaintiff filed suit alleging that OCCP, in responding to each of its
requests, willfully violated FOIA. Plaintiff sought an order directing OCCP to produce material
that had been withheld or redacted and an award of attorney fees and penalties. In its answer,
OCCP denied that it had violated the Act and raised affirmative defenses that the redacted
material at issue was exempt from disclosure and that certain of the requested records were not
in its possession or control.
¶9 Subsequent to the filing of the complaint, Commissioner Gainer, on November 13, 2018,
provided OCCP with more than 3000 pages of responsive e-mail records that had been located
on her personal server. In lieu of the promised log from the commissioner, OCCP submitted
these documents to plaintiff the next day with redactions for private e-mail addresses and cell
phone numbers and names of minors pursuant to sections 7(1)(b) and 7(1)(c). It appears that
at this point, OCCP had produced all of the responsive e-mails from both servers and only
redactions were still at issue.
¶ 10 The parties moved for partial summary judgment. In its motion, plaintiff asserted that
OCCP had not met its burden of proving by clear and convincing evidence that the redacted
information was exempt under sections 7(1)(f) and 7(1)(m) of FOIA. Plaintiff did not challenge
the redactions of personal information under sections 7(1)(b) and 7(1)(c).
¶ 11 In its cross-motion and response, OCCP argued that there was no evidence of willful
conduct on its part in responding to the requests and that the withheld information was exempt
under FOIA. In support of its cross-motion, OCCP submitted the affidavit of Felicione in
which she set forth the steps taken by OCCP to comply with plaintiff’s requests.
¶ 12 OCCP contended that many of the e-mails, which were produced in response to the first
request, contained back-and-forth discussions between Commissioner Gainer and others as to
how to best disseminate information to the public. OCCP maintained that the redactions were
exempt under section 7(1)(f) because they contained preliminary drafts of talking points, media
strategy discussions, and proposed media content.
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¶ 13 OCCP further argued that the material redacted in response to the second request contained
communications among Felicione; Brandon Brooks, special assistant for legal affairs of the
Cook County Bureau of Technology; Commissioner Gainer; and her attorney, Burt Odelson.
OCCP claimed the redactions were protected under section 7(1)(m).
¶ 14 Plaintiff, in reply to its motion and in response to the cross-motion, maintained that section
7(1)(f) does not apply to discussions with individuals who were not employed by the county
(Sabo and Rikeesha Phelon) that do not involve the development of government policy or that
pertain to media strategy or talking points. Plaintiff explained that Phelon operates Phelon
Public Strategies, a consulting firm that had received payments from Citizens for Bridget
Gainer. Additionally, plaintiff asserted that OCCP had not met its burden of establishing that
the exemption of section 7(1)(m) applied, in that Felicione’s affidavit did not offer justification
for asserting this exemption. Plaintiff asked the circuit court to review the unredacted records
in camera to determine whether section 7(1)(m) applied to e-mails involving Odelson.
¶ 15 In its reply, OCCP cited federal law and decisions of the Illinois Public Access Counselor
in support of its position that section 7(1)(f) applied to discussions and drafts of possible media
strategies, talking points, and responses to media requests for information. OCCP also
maintained that it had properly asserted the exemption of section 7(1)(m) to the content of e-
mails with Felicione, Commissioner Gainer, Brooks, and Odelson, which contained legal
advice to OCCP and Commissioner Gainer regarding plaintiff’s FOIA requests. OCCP
“welcome[d] an in camera inspection of the unredacted emails to demonstrate that its
exemption claim is proper.”
¶ 16 After conducting a hearing on the cross-motions for partial summary judgment, on
September 19, 2019, the circuit court entered an order taking the cross-motions under
advisement and directing OCCP, “for the reasons stated on the record,” to produce the
challenged records for an in camera examination. The record on appeal does not contain a
transcript of the September 19, 2019, hearing.
¶ 17 At a hearing on October 28, 2019, the circuit court explained that it had done an in camera
examination of the challenged records from the Cook County e-mail system. The court noted
that based on the arguments at the September 19 hearing, the e-mails from Commissioner
Gainer’s personal e-mail account were not “before this Court for determination.” The court
found that, as to the material which was redacted under section 7(1)(f), the exemption protected
all but one document. The court also found that OCCP had properly asserted the exemption of
section 7(1)(m). Based on those findings, the court granted plaintiff’s motion for partial
summary judgment as to only one record, an e-mail containing a press release about a
conference at which Commissioner Gainer spoke, and denied the motion as to all other records.
Similarly, OCCP’s cross-motion was denied as to the same e-mail record but granted for every
other record at issue.
¶ 18 Plaintiff filed a motion to reconsider. After a hearing, the motion was granted only as to a
portion of the redacted material on one e-mail that contained talking points about Off the
Sidelines.
¶ 19 The circuit court granted plaintiff’s motion for a finding under Illinois Supreme Court Rule
304(a) (eff. Mar. 8, 2016) on August 5, 2020. This appeal followed. The unredacted e-mail
records at issue from the Cook County system have been filed under seal with this court.
¶ 20 On appeal, plaintiff argues that the redacted material contained in the responsive
documents is not protected by FOIA. Specifically, plaintiff contends that section 7(1)(f) does
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not apply to (1) e-mails discussing media strategy; (2) Cause the Effect, a political action
committee; (3) edits to Commissioner Gainer’s Wikipedia page; and (4) e-mails that include
Sabo, who was no longer employed by Cook County, and Phelon, an outside consultant not
hired by the county. Plaintiff maintains that the discussions “bear no connection to
governance” or to the formation of government policy. Additionally, plaintiff asserts that
section 7(1)(m) does not apply because OCCP did not show that attorney Odelson represented
only Cook County.
¶ 21 Summary judgment may be entered where “the pleadings, depositions, and admissions on
file, together with the affidavits, if any, show that there is no genuine issue as to any material
fact and that the moving party is entitled to judgment as a matter of law.” 735 ILCS 5/2-1005(c)
(West 2018). As the parties here filed cross-motions for summary judgment, they have
“ ‘concede[d] the absence of a genuine issue of material fact, agree[d] that only questions of
law are involved, and invite[d] the court to decide the issues based on the record.’ ” Fisher v.
Office of the Attorney General, 2021 IL App (1st) 200225, ¶ 16 (quoting Stevens v.
McGuireWoods LLP, 2015 IL 118652, ¶ 11). We conduct a de novo review of a ruling on a
motion for summary judgment. Bank of New York Mellon v. Wojcik, 2019 IL App (1st) 180845,
¶ 19.
¶ 22 “[T]he purpose of the FOIA is ‘to open governmental records to the light of public
scrutiny.’ ” Watkins v. McCarthy, 2012 IL App (1st) 100632, ¶ 13 (quoting Bowie v. Evanston
Community Consolidated School District No. 65, 128 Ill. 2d 373, 378 (1989)). Under the Act,
public records are presumed to be open and accessible. Heinrich v. White, 2012 IL App (2d)
110564, ¶ 8. FOIA is to be liberally construed to achieve its goal of “provid[ing] the public
with easy access to government information.” Southern Illinoisan v. Illinois Department of
Public Health, 218 Ill. 2d 390, 416 (2006). A public body “must comply with a valid request
for information unless one of the narrow statutory exemptions set forth in section 7 of FOIA
applies.” Watkins, 2012 IL App (1st) 100632, ¶ 13. The issue of whether an exemption applies
is generally a matter of statutory construction and reviewed de novo. Lucas v. Prisoner Review
Board, 2013 IL App (2d) 110698, ¶ 15.
¶ 23 The CCB is considered a public body as it is the main governing body of Cook County.
See 55 ILCS 5/2-6001 et seq. (West 2018). The 17 commissioners of the CCB are elected by
the voters of the county. Id. § 2-6001. From the candidates for commissioner, the voters vote
for or designate one of the candidates to act as president of the CCB. Id. § 2-6002.
¶ 24 An individual who has been denied access to records may file an action in the circuit court
for injunctive or declaratory relief. Chicago Tribune Co. v. Department of Financial &
Professional Regulation, 2014 IL App (4th) 130427, ¶ 23 (citing 5 ILCS 140/11(a) (West
2010)). The public body has the burden to prove, by clear and convincing evidence, that the
requested records fall within an exemption. 5 ILCS 140/11(f) (West 2018). This burden is met
when the public agency “ ‘provide[s] a detailed justification for its claim of exemption,
addressing the requested documents specifically and in a manner allowing for adequate
adversary testing.’ ” (Emphasis omitted.) Illinois Education Ass’n v. Illinois State Board of
Education, 204 Ill. 2d 456, 464 (2003) (quoting Baudin v. City of Crystal Lake, 192 Ill. App.
3d 530, 537 (1989)). Section 11(f) of FOIA (5 ILCS 140/11(f) (West 2018)) requires the circuit
court to review the request for documents de novo and conduct an in camera examination of
the requested records as it finds appropriate to determine if the records, or any part thereof,
may be withheld under any provision of the Act. Southern Illinoisan, 218 Ill. 2d at 418.
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However, an in camera inspection is not necessary “where the public body meets its burden of
showing that the statutory exemption applies by means of affidavits.” Illinois Education Ass’n,
204 Ill. 2d at 469 (citing Williams v. Klincar, 237 Ill. App. 3d 569, 572-73 (1992), and Baudin,
192 Ill. App. 3d at 538).
¶ 25 Before beginning our analysis, we note that Felicione’s affidavit fails to set forth
justification with specificity for asserting a claim of exemption under either section 7(1)(f) or
7(1)(m) for each of the challenged records. In her affidavit, after explaining the steps that
OCCP took to comply with plaintiff’s requests, Felicione stated that she reviewed the
documents responsive to each request and “made proper redactions as allowed under the
FOIA.” She cited the applicable sections of the Act and used the language of those sections to
describe the redactions in general. Because the affidavit failed to make a showing that the
asserted exemptions applied to the records, the circuit court was required to conduct its
in camera inspection. See id. (“if the public body’s claims are conclusory, merely recite
statutory standards, or are too vague or sweeping,” affidavits will not suffice to satisfy the
public body’s burden of proof).
¶ 26 We begin by considering plaintiff’s argument that the withheld material was not protected
by section 7(1)(f) of FOIA.
¶ 27 Section 7(1)(f) exempts from disclosure:
“Preliminary drafts, notes, recommendations, memoranda and other records in which
opinions are expressed, or policies or actions are formulated, except that a specific
record or relevant portion of a record shall not be exempt when the record is publicly
cited and identified by the head of the public body.” 5 ILCS 140/7(1)(f) (West 2018).
¶ 28 As we explained in Fisher,
“[t]his provision is ‘the equivalent of the “deliberative process” exemption found in
section 552(b)(5) of the federal [FOIA], which exempts from disclosure inter- and
intra-agency predecisional and deliberative material.’ [Citation.] The deliberative
process exemption expresses the public policy favoring the confidentiality of
predecisional materials and ‘is intended to protect the communication process and
encourage frank and open discussion among agency employees before a final decision
is made.’ ” Fisher, 2021 IL App (1st) 200225, ¶ 19 (quoting Harwood v. McDonough,
344 Ill. App. 3d 242, 247-48 (2003)).
For the exemption to apply, “the responsive materials must be both (1) inter or intra agency
and (2) predecisional and deliberative.” Id. “[A] document must be both predecisional in the
sense that it is actually antecedent to the adoption of an agency policy and deliberative in the
sense that it is actually related to the process by which polices are formulated.” Chicago
Tribune Co. v. Cook County Assessor’s Office, 2018 IL App (1st) 170455, ¶ 28. In applying
and interpreting section 7(1)(f), we may look to federal case law. See State Journal-Register
v. University of Illinois Springfield, 2013 IL App (4th) 120881, ¶ 21 (citing Harwood, 344 Ill.
App. 3d at 248).
¶ 29 OCCP asserted the deliberative process exemption when it responded to the first request.
Pursuant to section 7(1)(f), OCCP redacted portions of the following e-mails: (1) a March 7,
2018, e-mail from Marty Malone, Director of External Affairs for Commissioner Gainer, to
Micaela Vargas, the chief of staff for the commissioner, containing a press release for the
University of Illinois at Chicago (UIC) newspaper about a Women in Business Conference
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held at the college on that date; (2) a January 30, 2018, e-mail from Malone to Vargas and a
second e-mail sent later that day by Malone to Vargas, Commissioner Gainer, and Sabo, with
track edits of the commissioner’s Wikipedia page; (3) January 8 and January 9, 2018, e-mails
from Malone to Vargas and Commissioner Gainer, containing draft answers for questions to
be posed by a reporter about recent women’s marches; (4) a March 6, 2018, e-mail from Vargas
to Commissioner Gainer and Sabo, containing a draft of the commissioner’s speech for the
Women in Business Conference at the UIC; and (5) a March 4, 2018, e-mail from Vargas to
Phelon, containing talking points relating to a variety of job issues.
¶ 30 As to the redactions on the March 7, 2018, e-mail, the court, in deciding the cross-motions
for partial summary judgment, found this material was not protected, as the press release about
the UIC conference was not antecedent to that event. The court on rehearing also ordered the
production of only a portion of the redactions to the March 4, 2018, e-mail, which contained
talking points about Off the Sidelines Chicago. OCCP did not appeal from those decisions.
¶ 31 According to OCCP, the challenged redactions, which are at issue, contain discussions
about media strategy and the manner of providing information to the public. The parties dispute
whether the deliberative process exemption applies to such discussions. They have not cited
any applicable Illinois law, and there is a split of federal authority on this issue. Plaintiff relies
on those federal decisions finding that communications about ways to present or message
existing government policies or actions to the public, while deliberative, do not involve the
type of governmental decisions that were intended to be protected by the deliberative process
exemption. See, e.g., Fox News Network, LLC v. United States Department of the Treasury,
739 F. Supp. 2d 515 (S.D.N.Y. 2010) (Fox News I). Under these cases, those types of records
may be withheld only where they would reveal “internal agency deliberations on substantive
policy matters” not yet finalized. Fox News Network, LLC v. United States Department of the
Treasury, 911 F. Supp. 2d 261, 277 (S.D.N.Y. 2012) (Fox News II).
¶ 32 OCCP, on the other hand, relies on cases such as Bloche v. Department of Defense, 370 F.
Supp. 3d 40 (D.D.C. 2019), and Seife v. United States Department of State, 298 F. Supp. 3d
592 (S.D.N.Y. 2018). The court in Bloche recognized that
“courts have repeatedly found the deliberative process privilege ‘to cover agency
deliberations about how to respond to media inquiries regarding prior agency actions,
as well as discussions about press coverage of existing agency policies, and suggested
talking points about how to answer questions regarding the duties assigned to agency
employees.’ ” Bloche, 370 F. Supp. 3d at 51-52 (quoting Competitive Enterprise
Institute v. United States Environmental Protection Agency, 12 F. Supp. 3d 100, 118
(D.D.C. 2014)).
See also Judicial Watch, Inc. v. United States Department of Homeland Security, 736 F. Supp.
2d 202, 208 (D.D.C. 2010); Citizens for Responsibility & Ethics in Washington v. United States
Department of Labor, 478 F. Supp. 2d 77, 83 (D.D.C. 2007); Judicial Watch, Inc. v. United
States Department of Commerce, 337 F. Supp. 2d 146, 174 (D.D.C. 2004). These courts
reasoned that “ ‘internal deliberations about public relations efforts are not simply routine
operational decisions: they are “deliberations about policy, even if they involve ‘massaging’
the agency’s public image.” ’ ” Bloche, 370 F. Supp. 3d at 52 (quoting Committee on Oversight
& Government Reform, United States House of Representatives v. Lynch, 156 F. Supp. 3d 101,
111 (D.D.C. 2016), quoting ICM Registry, LLC v. United States Department of Commerce,
538 F. Supp. 2d 130, 136 (D.D.C. 2008)). The evaluation of alternative methods of presenting
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policies and actions to the public “may require input by many working components within the
agency, or even an analysis of the underlying policy itself.” Seife, 298 F. Supp. 3d at 616.
¶ 33 However, the court in Bloche warned that defendants must present “sufficiently detailed
justification for all of the documents that they claim to be privileged” (Bloche, 370 F. Supp.
3d at 53), including, for example, identifying “an internal policy-orientated decisionmaking
process” and the “possible public communication being planned to an outside entity” that
would allow a court to determine whether the records “reflect the formulation or exercise of
*** policy-orientated judgment” (emphases in original and internal quotation marks omitted)
(id. at 54). The court in Seife also instructed that the public body must show that it is applying
the deliberative process privilege to “press policy discussions.” (Emphasis in original.) Seife,
298 F. Supp. 3d at 619. Discussions amounting to “routine operating decision[s]” do not fall
within the exemption, even if they involve public or press relations. (Internal quotation marks
omitted.) Id. In other words, even if public agencies “could claim that a messaging strategy
itself is a policy decision for purposes of the [deliberative process] privilege, as Seife would
allow, they would still have to describe that strategy with specificity and explain the
significance of the communications at issue to the agency’s decision-making process.”
Morales v. City of New York, No. 18cv1573 (JGK) (DF), 2019 WL 6213059, at *4 (S.D.N.Y.
Nov. 21, 2019).
¶ 34 In sum, under the line of cases relied on by plaintiff, discussions categorized as public
relations or media strategy, i.e., discussions on how to present an entity’s policies to the public,
are subject to the deliberative process exemption only in so far as they reveal the status or
deliberation of an underlying substantive government policy or action. Seife, 298 F. Supp. 3d
at 615 (citing Citizens Union of the City of New York v. Attorney General of New York, 269 F.
Supp. 3d 124, 165 (S.D.N.Y 2017); Fox News I, 739 F. Supp. 2d at 545). Under the line of
authorities cited by OCCP, records involving media strategy and the dissemination of public
information are exempted if the public body presents sufficient justification with detailed
submissions that the records are “both predecisional and deliberative, by explaining, for
example, the ‘function and significance [of the document] in the agency’s decisionmaking
process.’ ” (Internal quotation marks omitted.) Seife, 298 F. Supp. 3d at 617 (quoting Fox
News II, 911 F. Supp. 2d at 276). We do not need to decide which cases to follow, as OCCP’s
claims of exemption under 7(1)(f) fail under either line of decisions.
¶ 35 With the above legal framework in mind, we first consider the two January 30 e-mails
containing track edits to the Wikipedia page of Commissioner Gainer. A Wikipedia page is an
entry or article contained on Wikipedia, a free online encyclopedia which is hosted by
Wikimedia Foundation. See Wikipedia: About, Wikipedia, https://en.wikipedia.org/wiki/
Wikipedia:About (last visited June 11, 2021) [https://perma.cc/JA2U-GFA9]. Volunteers
create and edit its content. Id.¶ 36 OCCP did not offer factual support or justification as to its claim that the two e-mails with
the track edits of Commissioner Gainer’s Wikipedia page are reflective of a deliberative
process. The e-mails themselves do not contain discussions of any kind. The track edits are to
a Wikipedia page that provides basic biographical information about the commissioner,
including a description of her political career and involvement with Off the Sidelines and
Cause the Effect. The track edits alone do not reflect predecisional communications about any
substantive governmental policy or actions or about a policy relating to the dissemination of
information. Additionally, the edits relate to factual content on the commissioner’s Wikipedia
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page. “Purely factual material must be disclosed under FOIA once a final decision has been
made, unless the factual material is inextricably intertwined with predecisional and deliberative
discussions.” Chicago Tribune Co., 2018 IL App (1st) 170455, ¶ 32 (citing State Journal-
Register, 2013 IL App (4th) 120881, ¶ 27).
¶ 37 Next, we consider the January 8 and 9 e-mails relating to draft answers to questions to be
posed by a reporter to Commissioner Gainer about recent women’s marches in Chicago and
Washington D.C. An unredacted e-mail dated January 5, 2018, from the reporter to Malone,
reveals that the reporter wished to ask the commissioner her “thoughts [on the marches] as
founder of Cause the Effect.” At least from the reporter’s perspective, the questions were not
specifically meant to elicit information about any position the county or the CCB may have as
to the marches. The questions were not seeking information about any governmental policy or
action, and the redacted e-mail and draft answers do not reveal any deliberative process as to
any substantive government policy. Furthermore, there is no basis or justification for finding
the communications about the draft answers relate to the formulation of public relations or
press policy for the CCB or the county.
¶ 38 We next consider the e-mail with the redacted draft of Commissioner Gainer’s speech to
the women’s business conference at UIC. The e-mail containing the draft speech preceded the
date of the conference. However, there is no basis or justification for finding that the draft of
the speech is part of a process relating to the formulation of any public relations policy of the
county or the CCB, and the speech does not reveal the process of developing any substantive
government policy or action.
¶ 39 The final e-mail at issue under section 7(1)(f) has the subject “Jobs.dox,” contains talking
points, and was sent by Vargas to Phelon. We find the analysis in Seife instructive. See Seife,
298 F. Supp. 3d at 620.
¶ 40 In examining a document containing “talking points,” which was withheld under the
federal deliberative process exemption, the Seife court noted that the public agency had not
provided specificity about the record, the relationship of the author and the recipient, the date
of preparation of the talking points, and the function and significance of the talking points in
the agency’s process for decision making. Id. (citing Wilderness Society v. United States
Department of the Interior, 344 F. Supp. 2d 1, 14 (D.D.C. 2004)). Additionally, the agency
had not shown whether the talking points were in draft or final form and whether the talking
points had been used by the agency. Id. (citing Brennan Center for Justice at New York
University School of Law v. United States Department of Justice, 697 F.3d 184, 195 (2d Cir.
2012)). Without this information, the court was unable to conclude that the talking points were
an essential part of a “ ‘consultative process’ ” or, if released, would prematurely or incorrectly
disclose the agency’s view. Id. (quoting Grand Central Partnership v. Cuomo, 166 F.3d 473,
482 (2d Cir. 1999)).
¶ 41 Similarly, OCCP has failed to present any of the details that Seife found necessary to
determine whether the talking points there were protected. The e-mail between Vargas and
Phelon contains no discussion or communication on the talking points. Vargas merely states
in the unredacted portion of the e-mail: “[this] is a combined google doc with [ ] talking points
in the topics.” We do not know the relationship of Vargas and Phelon, an outside consultant,
as to the talking points, whether the talking points were in draft or final form, and whether they
were used and if so by whom and in what setting. There is no indication in the record whether
the talking points were part of a process for developing policy or action for communicating
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information about jobs for the county or the CCB. The talking points include points about job
“plans” but, for the most part, appear to be about plans in existence or for which county
legislation had already passed or had been introduced. We are without any information to
conclude that the talking points reveal the deliberative process for any future substantive policy
or action on jobs by the CCB.
¶ 42 We conclude that OCCP failed to meet its burden to establish that the challenged redactions
at issue pertain to the deliberative process for the development of governmental policy or
action relating to the dissemination of information and failed to show that the production of
the redacted information would reveal the deliberative process for any underlying substantive
policy. Therefore, under either line of federal authority discussed above, the deliberative
process exemption would not be applicable to the redacted material at issue. Furthermore,
OCCP failed to meet the burden, required by Illinois law, to present sufficient justification for
its claim that section 7(1)(f) protected the withheld information. See Illinois Education Ass’n,
204 Ill. 2d at 464; 5 ILCS 140/11(f) (West 2018) (“Any public body that asserts that a record
is exempt from disclosure has the burden of proving that it is exempt by clear and convincing
evidence.”).
¶ 43 We now turn to consider whether material was properly redacted under section 7(1)(m) of
the Act.
¶ 44 Section 7(1)(m) exempts:
“[c]ommunications between a public body and an attorney or auditor representing the
public body that would not be subject to discovery in litigation, and materials prepared
or compiled by or for a public body in anticipation of a criminal, civil or administrative
proceeding upon the request of an attorney advising the public body.” 5 ILCS
140/7(1)(m) (West 2018).
Section 7(1)(m) must be construed and applied narrowly, notwithstanding the public policy
favoring confidentiality between attorneys and clients. Illinois Education Ass’n, 204 Ill. 2d at
470.
¶ 45 The public body has the burden to “provid[e] some objective indicia that the exemption is
applicable under the circumstances.” (Emphasis in original.) Id. The public entity must
“establish both that: (1) [the attorney] was ‘representing’ the [public body]; and (2) the
communications would not be ‘subject to discovery in litigation.’ ” Id. at 464(“ ‘[c]ommunications between a public body and an attorney or auditor representing the public
body that would not be subject to discovery in litigation’ ” (quoting 5 ILCS 140/7(1)(n) (West
2000))). Our supreme court has defined a privileged communication as a communication
“(1) where legal advice of any kind is sought, (2) from a professional legal advisor in
his capacity as such, (3) the communications relating to that purpose, (4) made in
confidence, (5) by the client, (6) are permanently protected, (7) from disclosure by
himself or the legal advisor, (8) except the protection [can] be waived.” Id. at 467
(citing Fischel & Kahn, Ltd. v. Van Straaten Gallery, Inc., 189 Ill. 2d 579, 584 (2000),
In re Himmel, 125 Ill. 2d 531, 541 (1988), and People v. Adam, 51 Ill. 2d 46, 48 (1972)).
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.” Id. at 470.
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¶ 46 “[I]n camera review by the circuit court is the most effective way for the public body to
objectively demonstrate that the exemption claimed does, in fact, apply.” Id. at 471 (citing
Baudin, 192 Ill. App. 3d at 543 (McLaren, J., concurring) (“The trial court should be hesitant
in determining a privilege exists based solely on the affidavits submitted by the defendant, for
without an in camera review there is no external means to verify the truthfulness of the
affidavits ***.”)).
¶ 47 At issue are e-mails responsive to the second request. OCCP redacted portions of the
following e-mails: (1) a July 28, 2018, e-mail from Felicione to Commissioner Gainer and
Odelson, with the subject: “Monday Call at 11”; (2) a string of e-mails dated July 31, 2018 (all
with the subject: “Draft Request to Confer - Confidential Attorney Work Product”), beginning
with an e-mail from Felicione to Commissioner Gainer and Odelson, which attached an
unredacted draft of Felicione’s letter to Mihalopoulos dated July 31, 2018, requesting to meet
and confer to narrow the scope of the first request, with a responding e-mail from Odelson to
Felicione and an e-mail from Felicione to Rachel Dailey of OCCP; and (3) a July 31, 2018, e-
mail from Felicione to Brooks, Commissioner Gainer, and Dailey about “FOIA Request.”
¶ 48 Initially, we note that OCCP’s claim of an attorney-client exemption centers solely on
attorney Odelson and not on Felicione in her role as Special Counsel to OCCP. However, the
July 31, 2018, e-mail from Felicione to Dailey about FOIA request was neither received nor
sent by Odelson, and our review of the e-mail shows that it contains no confidential legal
communications. We find that OCCP has not established that this e-mail was exempt under
section 7(1)(m).
¶ 49 As to the e-mails involving Odelson, plaintiff argues that the Felicione affidavit fails to
establish that Odelson was retained by or represented the county and does not provide a
detailed justification for asserting an exemption under section 7(1)(m). OCCP responds that
“the sufficiency of the [Felicione] affidavit alone is irrelevant” in that the circuit court
conducted an in camera inspection and based its decision on the affidavit and the content of
the e-mails. OCCP maintains that “the content of the emails establishes the nature of the
discussion and the relationship between Mr. Odelson and Commissioner Gainer.” We disagree
with OCCP.
¶ 50 OCCP has never offered substantiation to define the existence or nature of Odelson’s
relationship to OCCP, the CCB, or Commissioner Gainer with respect to plaintiff’s FOIA
requests. From our review of the e-mails, we could find no factual basis for concluding that an
attorney-client relationship of any kind existed. OCCP did label the string of e-mails discussing
the draft letter to Mihalopoulos “Confidential Attorney Work Product.” However, our review
of these e-mails and the other responsive e-mails does not lead to a conclusion that there was
an attorney-client relationship between Odelson and the CCB, OCCP, or the commissioner as
to plaintiff’s FOIA requests. And our review did not show that any redacted material involved
confidential legal advice from Odelson.
¶ 51 We conclude that OCCP has not met its burden of establishing that section 7(1)(m)
protected the redacted material at issue.
¶ 52 For the reasons stated, we reverse the denial of the plaintiff’s cross-motion for summary
judgment (see supra ¶¶ 35-42, 47-51) and affirm the granting of plaintiff’s cross-motion for
summary judgment (see supra ¶ 30) as to certain records. We reverse the granting of OCCP’s
cross-motion for summary judgment (see supra ¶¶ 35-42, 47-51) and affirm the denial of
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OCCP’s cross-motion for summary judgment (see supra ¶ 30) as to certain records.
¶ 53 Affirmed in part and reversed in part.
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