Laura M. Julien, Mickey, Wilson, Weiler, Renzi, Lenert & Julien, P.C.
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Public Access Counselor Issues Opinions on Duty To Respond and More
The Illinois Office of the Attorney General’s Public Access Counselor (PAC), the entity responsible for ensuring compliance with the state’s Freedom of Information Act (FOIA), 5 ILCS 140/1, et seq., and Open Meetings Act (OMA), 5 ILCS 120/1, et seq., issued three binding opinions in June. These opinions reaffirm a public body’s duty to comply and further clarify its obligations under these Acts.
Freedom of Information Act — Duty To Respond
In Public Access Opinion 25-005 (June 6, 2025), the PAC reaffirmed a public body’s obligation to timely respond to FOIA requests. On March 19, 2025, the Village of Lynwood received a FOIA request seeking various documents and records related to the mayor’s salary between 2021 and the present. Public Access Opinion 25-005, p. 2. The village failed to respond to the request within the five business days prescribed by statute and on April 1, 2025, the requester sent a request for review to the PAC pursuant to FOIA §9.5(a), 5 ILCS 140/9.5(a). On April 15, 2025, the PAC forwarded the request for review to the village and asked the village to confirm whether it had responded to the initial request and, if so, to provide a copy of its response letter and associated documents. The village did not acknowledge or reply to the PAC’s inquiry. On May 1, 2025, the PAC sent an additional copy of the request for review to the village by both email and U.S. mail and the village again failed to respond. Public Access Opinion 25-005, p. 4.
On June 6, 2025, the PAC issued a binding opinion finding that the village violated FOIA §3(d), 5 ILCS 140/3(d), by failing to respond within five business days after its receipt of the request or otherwise requesting an extension under §3(e). Additionally, the PAC noted that because the village failed to comply with the statute’s five-day timeframe, it waived its ability to treat the request as unduly burdensome or to impose copying fees. Public Access Opinion 25-005, p. 6 n.14. The village was directed to take immediate action to respond to the request.
While this decision largely restates existing law, it emphasizes the importance of timely responding to FOIA requests. Moreover, it serves as a reminder to public bodies that strict adherence to the statutory timeframe will result in a waiver of certain benefits otherwise afforded under FOIA §3(e).
Freedom of Information Act — Basis for Withholding Records Related to Settlement Agreements
Settlements agreements have proven to be a recurring theme in PAC opinions in recent years. In 2016, FOIA was amended to expressly provide that settlement agreements are public records and are to be produced, subject to applicable redactions under §7 of the Act. In Public Access Opinion 25-006 (June 18, 2025), the PAC addressed the scope of a public body’s obligation to produce records related to settlement agreements.
On February 22, 2025, the City of Chicago received a request for records relating to a settlement payment made to a city alderman, documents sufficient to show the nature and extent of the settlement, and documents sufficient to show the definition of a contribution claim. The documents in question were related to a class action lawsuit that the requester was involved in against the city and the named alderman. After extending its timeframe to respond, the city granted the request in part and denied the request in part, citing exemptions under FOIA §§7(1)(b), 7(1)(c), 7(1)(m), and 7(1)(kk). After a number of exchanges, the requester limited the scope of the request for review for documents withheld under §7(1)(m) of the Act, 5 ILCS 140/7(1)(m), which prohibits from disclosure certain records relating to the communications between a public body and its attorney that would not be subject to discovery in litigation and materials prepared or compiled in anticipation of a criminal, civil, or administrative proceeding upon request of an attorney advising the public body. Public Access Opinion 25-006, p. 4. To demonstrate that a document is protected by attorney-client privilege under this exemption, the burden is on the public body to show that (1) a statement was originated in confidence with the attorney having the expectation that it would not be disclosed; (2) the statement was made to the attorney while the attorney was acting in a legal capacity and for the purpose of seeking legal advice or services; and (3) the statement remained confidential. Id.
In this case, the document that was being withheld related to a settlement agreement that was signed by both an alderman and the city attorney. At that time, the city had been dismissed from the case and the alderman had retained his own private attorney. Examining the available facts, the PAC noted that notwithstanding the fact that the city law department was authorized by ordinance to represent city officers and departments in legal matters, it did not follow that all communications between the city law department and others within the organization were privileged, even if those communications related to ongoing litigation. Public Access Opinion 25-006, p. 6.
In making this determination, the PAC referenced the fact that the alderman had retained his own legal counsel. It further observed there was nothing in the settlement document that would indicate that the alderman was seeking legal advice from the city’s law department. Instead, the document affirmed the fact that the city and the alderman had divergent interests. After making these findings, the PAC turned to Article VIII, §1(c) of the Illinois Constitution of 1970, which expressly provides that “reports and records of the obligation, receipt and use of public funds of . . . units of local government . . . are public records available for inspection by the public according to law.”
Accordingly, the PAC determined that because the facts did not support an expectation of attorney-client privilege under §7(1)(m) of the Act, 5 ILCS 140/7(1)(m), the city did not meet its burden in exempting the documents from disclosure and was directed to release the document. Public Access Opinion 25-006, p. 7.
Public bodies, including their board members and employees, should be cautioned that communications with legal counsel are not automatically privileged, even when discussing matters of a legal nature. Such communications may be subject to FOIA unless the public body can clearly demonstrate an attorney-client relationship (beyond just serving as general counsel) and an expectation of confidentiality.
Open Meetings Act — City’s Informal Committee Is a Subsidiary Body
In Public Access Opinion 25-007 (June 24, 2025), an Open Meetings Act complaint was filed with the PAC alleging that the City of Peru was holding committee meetings that were closed to the public. The committee in question was created following a referendum to explore options for establishing a municipal swimming pool. The committee contained individuals who were informally appointed by the mayor and was comprised of two elected officials, a department head, and city residents. Public Access Opinion 25-007, p. 4. The committee meetings were not open to the public and the committee did not take meeting minutes.
Section 1.02 of OMA defines “public body” to include “any subsidiary bodies . . . including but not limited to committees.” However, the city asserted that the committee was an “informal advisory committee” that did not qualify as a subsidiary or advisory body within the meaning of the Act. Public Access Opinion 25-007, p. 6.
In determining whether the committee was a “public body” within the meaning of OMA, the PAC invoked the four factor test: (1) the extent to which the committee had a legal existence independent of governmental resolution; (2) the degree of governmental control exerted over the committee; (3) the extent to which the committee was publicly funded; and (4) the nature of the functions performed by the committee. Public Access Opinion 25-007, pp. 6 – 10.
It was undisputed that the committee did not enjoy an independent legal existence from the city. While the city contended that it did not control the committee and that the committee was an “independent group of volunteers,” the PAC noted that the mayor’s appointments of individuals to the committee, even without a city council vote, demonstrated a degree of city control over the committee. Public Access Opinion 25-007, p. 7. Minutes from the city council meetings also revealed that the city had allocated significant resources toward the committee, including the use of city personnel, facilities, and the city council’s approval of funds for a preliminary study. Although the city asserted that the committee was not publicly funded because it was comprised of unpaid volunteers, the PAC noted that the committee did receive at least indirect public funding in relation to the foregoing. Finally, when examining the committee’s purpose, the PAC determined that the function of the committee is “a quintessential role of a municipal committee.” Public Access Opinion 25-007, p. 9. Upon review of the foregoing factors, with emphasis on the governmental function and degree of city control over the committee, the PAC determined that the committee was a public body subject to OMA and that the private committee meetings were in violation of the Act.
Public bodies should heed caution and note that even “informal” committees are likely to be subject to OMA requirements if they are not legally independent from a public body, are under the general control of a public body, are performing a governmental function, and/or are operating with or benefitting from the use of public funds.
For more information about FOIA and OMA, see SUNSHINE LAWS — 2024 EDITION. Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.