Chicago Annenberg Challenge Shutdown?

The problem of Barack Obama’s relationship with Bill Ayers will not go away. Ayers and his wife, Bernardine Dohrn were terrorists for the notorious Weather Underground during the turbulent 1960s, turning fugitive when a bomb — designed to kill army officers in New Jersey — accidentally exploded in a New York townhouse. Prior to that, Ayers and his cohorts succeeded in bombing the Pentagon. Ayers and Dohrn remain unrepentant for their terrorist past.

This much we know from the public record, but a large cache of documents housed in the Richard J. Daley Library at the University of Illinois at Chicago (UIC), is likely to flesh out the story. That document cache contains the internal files of the Chicago Annenberg Challenge. The records in question are extensive, consisting of 132 boxes, containing 947 file folders, a total of about 70 linear feet of material. Not only would these files illuminate the working relationship between Obama and Bill Ayers, they would also provide significant insight into a web of ties linking Obama to various radical organizations, including Obama-approved foundation gifts to political allies. Obama’s leadership style and abilities are also sure to be illuminated by the documents in question.

Cover-Up? Unfortunately, I don’t yet have access to the documents. The Special Collections section of the Richard J. Daley Library agreed to let me read them, but just before I boarded my flight to Chicago, the top library officials mysteriously intervened to bar access. Circumstances strongly suggest the likelihood that Bill Ayers himself may have played a pivotal role in this denial.

The Richard J. Daley Library, as part of the same UIC, is also a publicly funded state university library.

http://www.illinoisattorneygeneral.gov/government/FOIA_guide.pdf

A GUIDE TO THE ILLINOIS FREEDOM
OF INFORMATION ACT

LISA MADIGAN
Attorney General
State of Illinois

III. What types of records must be made available to the public?
It is the policy of the State, as enunciated in the Act, that all persons are entitled to “full
and complete information regarding the affairs of government and the official acts and policies
of those who represent them.” The Illinois Supreme Court has repeatedly embraced the
philosophy that public records are presumed to be open and accessible. Illinois Education
Association v. Illinois State Board of Education, 204 Ill. 2d 456 (2003); Lieber v. Board of
Trustees of Southern Illinois University, 176 Ill. 2d 401 (1997); Bowie v. Evanston Community
Consolidated School District, 128 Ill. 2d 373 (1989). The courts have long held that “[f]reedom
of information fosters government accountability and an informed citizenry.” Bowie, 128 Ill. 2d
at 378. The Act does, however, recognize that in order to enable public bodies to perform
certain governmental functions properly, and in order to protect personal privacy, some records
and information may need to be kept confidential. The Act attempts to balance these competing
interests by giving a very broad and inclusive definition of “public records,” but also providing
10
very specific exceptions, which have grown numerous over the years, that allow public bodies to
withhold certain types of documents from public inspection. In this sense, the Act itself provides
the balance judicially obtained under the common law.
It is important to note, however, that the exceptions to disclosure are to be read
narrowly. As section 1 of the Act states: “restraints on information access should be seen as
limited exceptions to the general rule that the people have a right to know the decisions, policies,
procedures, rules, standards, and other aspects of government activity that affect the conduct of
government and the lives of any or all of the people.” Illinois courts have repeatedly upheld this
view. “Thus, when a public body receives a proper request for information, it must comply with
that request for information unless one of the narrow statutory exemptions set forth in Section 7
of the Act applies.” Illinois Education Association v. Illinois State Board of Education, 204 Ill.
2d 456 (2003).
If a public body denies a request for information and the requesting party challenges
the denial in circuit court, the public body has the burden of proving that the records in question
fall within the exemption that it has claimed. Chicago Alliance for Neighborhood Safety v. City
of Chicago, 348 Ill. App. 3d 188 (1st Dist. 2004).
Subsection 2(c) of the Act defines the term “public records” to include all records,
reports, forms, writings, letters, memoranda, books, papers, maps, photographs, microfilms,
cards, tapes, recordings, electronic data processing records, recorded information and all other
documentary information having been prepared, or having been or being used, received,
possessed or under the control of any public body. The physical characteristics of records are
not relevant in classifying them as “public records,” because the Act expressly extends to all
records regardless of their physical form or characteristics. Rather, the most important factor in
11
determining whether a record is a “public record” is whether it has been prepared, or was or is
being used, received, possessed or under the control of any public body. It has been held that it
is the obligation of a public body to provide a requesting party with records in the form in which
they are ordinarily kept, if so requested; a public body may not elect to furnish records in a
different format. American Federation of State County & Municipal Employees, AFL-CIO v.
County of Cook, 136 Ill. 2d 334, 345-47 (1990). Thus, when a requesting party sought a copy of
computerized records on a computer tape, the public body could not satisfy the request by
furnishing a printout of the records.
The Act expressly includes a non-exhaustive list of numerous types of information
within the definition of “public records.” That list includes the following types of records:
(i) Administrative manuals, procedural rules, and instructions to staff, unless
exempted by subsection 7(1)(p) of the Act;
(ii) Final opinions and orders made in the adjudication of cases, except an
educational institution’s adjudication of student or employee grievance or
disciplinary cases;
(iii) substantive rules;
(iv) statements and interpretations of policy which have been adopted by a public
body;
(v) final planning policies, recommendations, and decisions;
(vi) factual reports, inspection reports, and studies whether prepared by or for the
public body;
(vii) all information in any account, voucher, or contract dealing with the receipt or
expenditure of public or other funds of public bodies;
(viii) the names, salaries, titles, and dates of employment of all employees and
officers of public bodies;
(ix) materials containing opinions concerning the rights of the State, the public, a
subdivision of State or a local government, or of any private persons;
12
(x) the name of every official and the final records of voting in all proceedings of
public bodies;
(xi) applications for any contract, permit, grant, or agreement except as exempted
from disclosure by subsection 7(1)(g) of the Act;
(xii) each report, document, study, or publication prepared by independent
consultants or other independent contractors for the public body;
(xiii) all other information required by law to be made available for public
inspection or copying;
(xiv) information relating to any grant or contract made by or between a public
body and another public body or private organization;
(xv) waiver documents filed with the State Superintendent of Education or the
president of the University of Illinois under Section 30-12.5 of the School
Code, concerning nominees for General Assembly scholarships under
Sections 30-9, 30-10, and 30-11 of the School Code;
(xvi) Complaints, results of complaints, and Department of Children and Family
Services staff findings of licensing violations at day care facilities, provided
that personal and identifying information is not released; and
(xvii) Records, reports, forms, writings letters, memoranda, books, papers and other
documentary information, regardless of physical form or characteristics
having been prepared, or having been or being used, received, possessed, or
under the control of the Illinois Sports Facilities Authority dealing with the
receipt or expenditure of public funds or other funds of the Authority in
connection with the reconstruction, renovation, remodeling, extension or
improvement of all or substantially all of an existing “facility” as that terms is
defined in the Illinois Sports Facility Authority Act 70.
This list is designed to provide assistance in determining whether particular records fall
within the purview of the Act. Even though a particular document is not included in this list,
however, it is still a public record under the Act if it was prepared, or was or is being used,
received, possessed, or under the control of any public body.
13
It is important to note that upon receiving a request for access to a record that is exempt
from disclosure but that contains nonexempt information, the public body must separate the
exempt from the nonexempt information and disclose the nonexempt information. 5 ILCS
140/8; Bowie v. Evanston Community Consolidated School District, 128 Ill. 2d 373, 380 (1989);
see also Carter v. Meek, 322 Ill. App. 3d 266 (5th Dist. 2001); CBS Inc., v. Partee, 198 Ill. App.
3d 936 (1st Dist. 1990). If such information is maintained only on computer tapes or disks, the
public body may be required to prepare a computer program that will segregate the information;
this does not require the creation of a new record. Hamer v. Lentz, 132 Ill. 2d 49, 56 (1989).
IV. What types of records are exempt from public inspection?
To enable public bodies to keep confidential certain types of sensitive public records,
the Act provides numerous exceptions to the mandate that public records be made available for
public inspection. Public bodies should always refer to the text of the Act before determining
whether documents are exempted from its requirements. The exemptions do not, however,
prohibit the dissemination of information; rather, they merely authorize the withholding of
information. Roehrborn v. Lambert, 277 Ill. App. 3d 181, 186 (1st Dist. 1995), appeal denied,
166 Ill. 2d 554. Moreover, when one public body obtains records from another public body that
the former knows would assert an exemption, it appears that the originating body must be given
the opportunity to assert any applicable exemption which the receiving body fails to assert.
Twin-Cities Broadcasting Corp. v. Reynard, 277 Ill. App. 3d 777 (4th Dist. 1996). Although the
court left open the question of whether the originating body may be deemed to have waived its
right to assert an exemption by providing those records to another public body, it is clear that a
public body which possesses records originating in another body should consult with the
originating body prior to producing records pursuant to a request therefore.
14
In determining whether certain records are exempt from disclosure, reference must be
made not only to the enumerated exceptions, but also to the definition of public records. For
example, subsection 7(1)(b) exempts from disclosure personnel records maintained with respect
to public employees. The definition of “public records,” however, specifically provides that the
names, salaries, titles and dates of employment of all employees and offices of public bodies
shall be public records. Reading these provisions together, it is clear that, consistent with prior
case law, the General Assembly intended the public to have access to the specified types of
information concerning public employees notwithstanding the general exemption in subsection
7(1)(b).
The first exception, contained in subsection 7(1)(a), provides for withholding
information which Federal or State law, or rules and regulations adopted pursuant thereto,
prohibit disclosing. In Bowie v. Evanston Community Consolidated School District, 128 Ill. 2d
373, 380-81 (1989), the court held that the provisions of the Illinois School Student Records Act
(105 ILCS 5/36-1 et seq.), which generally limit access to records concerning a student by which
the student may be individually identified, did not prohibit release of masked and scrambled test
results which deleted individual identifying data.
Southern Illinoisan v. Department of Public Health, 349 Ill. App. 3d 431 (5th Dist.
2004), permitted the release of documents relating to the Illinois Cancer Registry. The
Department of Public Health withheld the documents contending their release would tend to lead
to the identity of specific persons, and thus disclosure was prohibited by the Illinois Health and
Hazardous Substances Registry Act. The court employed a reasonableness requirement noting
that “in this age of ubiquitous information, any fact, no matter how unrelated to identity can tend
to lead to identity.” Southern Illinoisan, 349 Ill. App. 3d at 442 (5th Dist. 2004). The court
15
stated that even though one expert, as in the instant case, could manipulate data to determine
identity does not mean, without more, that a threat exists that other individuals will be able to do
so as well.
It has also been held that probation records are exempt from disclosure under
subsection 7(1)(a) of the Act, because such records are prohibited from disclosure, except to
judges and probation officers or by order of court, by “AN ACT providing for a system of
probation, etc.” 730 ILCS 110/12; Smith v. Cook County Probation Department, 151 Ill. App.
3d 136, 138 (1st Dist. 1996) (Although the court apparently assumed that these records were
subject to the Freedom of Information Act, it appears that probation records, being records of the
judiciary, would not ordinarily constitute records of a “public body,” for purposes of the Act.
Therefore, they would not be subject to disclosure under its provisions.). Conversely, where
another statute or administrative regulation requires information to be disclosed to a person, the
Freedom of Information Act does not permit that information to be withheld. Etten v. Lane, 138
Ill. App. 3d 439 (5th Dist. 1985). Public records cannot be withheld from disclosure under
subsection 7(1)(a) simply because the parties agree to a “gag order” and that order is entered by a
court. Carbondale Convention Center v. City of Carbondale, 245 Ill. App. 3d 474, 477 (5th Dist.
1993).
The other exceptions can be categorized into the six groups set out below. It should be
emphasized that not all documents which might fall within a general category are exempt.
Rather, the Act exempts only those documents that are covered by a specific exception.
PERSONAL PRIVACY
The primary exception in the group of exceptions that is designed to protect personal
privacy is found in subsection 7(1)(b), which exempts information that, if disclosed to the public,
16
would result in a clearly unwarranted invasion of personal privacy. Some categories of records
are specifically classified as exempt under subsection 7(1)(b) for this reason, including: (i) files
and personal information regarding individuals receiving social, medical, educational, or other
similar services; (ii) personnel files and personal information regarding employees or officials of
public bodies; (iii) files and personal information maintained with respect to professional or
occupational registrants or licensees; (iv) information required of taxpayers for tax assessment or
collection purposes; and (v) information that would reveal the identity of persons who file
complaints with or provide information to administrative, investigative, law enforcement or
penal agencies. In some cases, panels of the Illinois Appellate Court held that even as to
information falling within these categories, the public body and the court must further determine
whether or not disclosure would constitute a clearly unwarranted invasion of personal privacy.
See, e.g., City of Monmouth v. Galesburg Printing and Publishing Co., 144 Ill. App. 3d 224 (3rd
Dist. 1986); CBS, Inc. v. Partee, 198 Ill. App. 3d 936 (1st Dist. 1990). Others had held that such
further inquiry was not necessary, i.e., that information falling within any of the five categories
is per se exempt from disclosure. See, e.g., Healey v. Teachers Retirement System, 200 Ill. App.
3d 240 (4th Dist. 1990). In Lieber v. Board of Trustees of Southern Illinois University, 176 Ill. 2d
385 (1997), the supreme court resolved the difference of opinion in favor of the per se approach,
concluding that information falling within one of the listed categories is exempt from disclosure
without need of further analysis. In resolving this issue, however, the court also suggested that
not all information identifiable to a given individual should necessarily be considered to
constitute “personal information” for purposes of categories (i), (ii), and (iii). Personal
17
information as used in these subsections has been defined as information “that is private and
confidential.” Chicago Tribune v. Board of Education of the City of Chicago, 332 Ill. App. 3d
60 (1st Dist. 2002).
In Lieber, the plaintiff was a private housing provider who sought the names and
addresses of persons who had been accepted but not yet enrolled at Southern Illinois University.
Finding in favor of the plaintiff, the court determined that the term “personal information” must
have been intended by the General Assembly to be understood not in the sense of basic
identification but in the sense of information that is confidential or private. If “personal
information” included basic identification, then absurd consequences would result such as a
person’s not having the right to learn the names of public office holders or to confirm that his or
her surgeon is licensed to practice medicine. Lieber v. Board of Trustees of Southern Illinois
University, 176 Ill. 2d 385, 412 (1997).
Information covered in the five categories of subsection 7(1)(b) is not the only
information exempted by that provision; its scope is expressly not limited thereto. In
determining whether or not the disclosure of other types of information would constitute a
clearly unwarranted invasion of personal privacy, the courts have applied a balancing test in
which the following factors are considered: (1) the plaintiff’s interest in disclosure; (2) the
public interest in disclosure; (3) the degree of invasion of privacy; and (4) the availability of
alternative means of obtaining the records. See, e.g., Schessler v. Department of Conservation,
256 Ill. App. 3d 198 (4th Dist.1994) (licenses to conduct live pigeon shoots were not exempt
from disclosure).
18
With respect to this exception, the Attorney General has determined that the names of
persons who apply for or are granted licenses under the Community and Ambulatory Currency
Exchange Act (205 ILCS 405/.1) are not exempt from disclosure under subsection 7(1)(b). 1990
Ill. Att’y Gen. Op. 264. In Cooper v. Department of the Lottery, 266 Ill. App. 3d 1007 (1st Dist.
1994), the court held that sales data for lottery agents in certain geographic areas were not
exempt from disclosure as an invasion of personal privacy. The court noted that lottery agents
act as fiduciaries of the State, and are readily identified as such by the license they are required
to display.
It should be noted that subsection 7(1)(b) also provides that the disclosure of
information bearing on the public duties of public employees or officials shall not be considered
an invasion of personal privacy and that information that would otherwise be exempt as a clearly
unwarranted invasion of personal privacy is not exempt if disclosure is consented to in writing
by the subject of the information.
The central purpose of the Act “is to guarantee that the Government’s activities be
opened to the sharp eye of public scrutiny, not that information about private citizens, that
happens to be in the warehouse of the Government be so disclosed.” Trent v. Office of Coroner
of Peoria County, 349 Ill. App. 3d 276 (2004), citing Lakin Law Firm v. Federal Trade Comm’n,
352 F. 3d 1122 (7th Cir. 2003).
Other exemptions relating to personal privacy include subsection 7(1)(aa), which
exempts from disclosure certain records of the Experimental Organ Transplantation Procedures
Board relating to applications it receives, and subsection 7(1)(cc), which exempts records held
by the Department of Public Health relating to sexually transmissible diseases.
19
In addition, subsection 7(1)(hh) exempts documents generated in the complaint
disposition process before any of the State ethics commissions under the State Gift Ban Act (5
ILCS 425). The Attorney General has opined that, although other exemptions may apply to
specific documents, exemption (hh) does not apply to units of local government or school
districts. Ill. Att’y Gen. Op. No. 99-007, issued June 30, 1999, at pp. 25-26.

5 ILCS 140

§ 1. Pursuant to the fundamental philosophy of the American constitutional form of government, it is declared to be the public policy of the State of Illinois that all persons are entitled to full and complete information regarding the affairs of government and the official acts and policies of those who represent them as public officials and public employees consistent with the terms of this Act. Such access is necessary to enable the people to fulfill their duties of discussing public issues fully and freely, making informed political judgments and monitoring government to ensure that it is being conducted in the public interest.

This Act is not intended to be used to violate individual privacy, nor for the purpose of furthering a commercial enterprise, or to disrupt the duly-undertaken work of any public body independent of the fulfillment of any of the fore-mentioned rights of the people to access to information.

This Act is not intended to create an obligation on the part of any public body to maintain or prepare any public record which was not maintained or prepared by such public body at the time when this Act becomes effective, except as otherwise required by applicable local, State or federal law.

These restraints on information access should be seen as limited exceptions to the general rule that the people have a right to know the decisions, policies, procedures, rules, standards, and other aspects of government activity that affect the conduct of government and the lives of any or all of the people. The provisions of this Act shall be construed to this end.

This Act shall be the exclusive State statute on freedom of information, except to the extent that other State statutes might create additional restrictions on disclosure of information or other laws in Illinois might create additional obligations for disclosure of information to the public.

§ 2. Definitions. As used in this Act:

(a) “Public body” means any legislative, executive, administrative, or advisory bodies of the State, state universities and colleges, counties, townships, cities, villages, incorporated towns, school districts and all other municipal corporations, boards, bureaus, committees, or commissions of this State, any subsidiary bodies of any of the foregoing including but not limited to committees and subcommittees which are supported in whole or in part by tax revenue, or which expend tax revenue, and a School Finance Authority created under Article 1E of the School Code. “Public body” does not include a child death review team or the Illinois Child Death Review Teams Executive Council established under the Child Death Review Team Act.

(b) “Person” means any individual, corporation, partnership, firm, organization or association, acting individually or as a group.

(c) “Public records” means all records, reports, forms, writings, letters, memoranda, books, papers, maps, photographs, microfilms, cards, tapes, recordings, electronic data processing records, recorded information and all other documentary materials, regardless of physical form or characteristics, having been prepared, or having been or being used, received, possessed or under the control of any public body. “Public records” includes, but is expressly not limited to:
(i) administrative manuals, procedural rules, and instructions to staff, unless exempted by Section 7(p) of this Act;
(ii) final opinions and orders made in the adjudication of cases, except an educational institution’s adjudicati
on of student or employee grievance or disciplinary cases; (iii) substantive rules;
(iv) statements and interpretations of policy which have been adopted by a public body;
(v) final planning policies, recommendations, and decisions;
(vi) factual reports, inspection reports, and studies whether prepared by or for the public body;
(vii) all information in any account, voucher, or contract dealing with the receipt or expenditure of public or other funds of public bodies;
(viii) the names, salaries, titles, and dates of employment of all employees and officers of public bodies;
(ix) materials containing opinions concerning the rights of the state, the public, a subdivision of state or a local government, or of any private persons;
(x) the name of every official and the final records of voting in all proceedings of public bodies;
(xi) applications for any contract, permit, grant, or agreement except as exempted from disclosure by subsection (g) of Section 7 of this Act;
(xii) each report, document, study, or publication prepared by independent consultants or other independent contractors for the public body;
(xiii) all other information required by law to be made available for public inspection or copying;
(xiv) information relating to any grant or contract made by or between a public body and another public body or private organization;
(xv) waiver documents filed with the State Superintendent of Education or the president of the University of Illinois under Section 30-12.5 of the School Code, concerning nominees for General Assembly scholarships under Sections 30-9, 30-10, and 30-11 of the School Code; (xvi) complaints, results of complaints, and Department of Children and Family Services staff findings of licensing violations at day care facilities, provided that personal and identifying information is not released; and
(xvii) records, reports, forms, writings, letters, memoranda, books, papers, and other documentary information, regardless of physical form or characteristics, having been prepared, or having been or being used, received, possessed, or under the control of the Illinois Sports Facilities Authority dealing with the receipt or expenditure of public funds or other funds of the Authority in connection with the reconstruction, renovation, remodeling, extension, or improvement of all or substantially all of an existing “facility” as that term is defined in the Illinois Sports Facilities Authority Act.

(d) “Copying” means the reproduction of any public record by means of any photographic, electronic, mechanical or other process, device or means.

(e) “Head of the public body” means the president, mayor, chairman, presiding officer, director, superintendent, manager, supervisor or individual otherwise holding primary executive and administrative authority for the public body, or such person’s duly authorized designee.

(f) “News media” means a newspaper or other periodical issued at regular intervals whether in print or electronic format, a news service whether in print or electronic format, a radio station, a television station, a television network, a community antenna television service, or a person or corporation engaged in making news reels or other motion picture news for public showing.

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.