ILLINOIS HOUSE OF REPRESENTATIVES OFFICE OF THE CLERK Gere Tovorer D. Mins ‘Cm Mics. Mase Bra Bous Aisne Chom March 9, 2018 Cole Lauterbach Multimedia Reporter Illinois News Network RE: — Freedom of Information Act Request Dear Mr. Lauterbach: | am writing in response to your correspondence, which was received by my office on February 23, 2018. In a letter dated March 2, 2018, I extended the response date for your request until March 9, 2018 pursuant to Sections 3(e) (i), (v), and (vii) of the FOIA. In your letter, you request the following records pursuant to the Freedom of Information Act (the “FOIA”): 1. “A-copy of House Speaker Michael Madigan’s January 2018 and February 2018 schedule kept by himself, and aid or any other paid employee.” “The House does not possess, maintain, control, or use public records responsive to your request. The records you seek are personal documents of an individual public official. The FOIA applies only to “public records,” that is, to public information used, received, or possessed by or under the control of any public body. 5 ILCS 140/2(c). It does not apply to records in the possession or under the control of individuals who are not “public bodies.” See Quinn v. Stone, 211 IllApp.3d 809, 570 N.E.2d 676 (1° Dist. 1991) (holding that individual public officials are not public bodies and are not the proper recipients of FOIA requests). ‘The Quinn decision affirms the clearly expressed intent of the sponsors of the FOIA. Representative Bowman, one of the FOIA’s primary sponsors, squarely addressed this issue in debate as it was considered during the 83" General Assembly. After opponents of the bill expressed concern that it ‘would require public disclosure of members’ individual records, Representative Bowman stated that the FOIA would apply only to records maintained by the General Assembly and not by individual members: Our own personal correspondence is precisely that. It is our own personal correspondence. They are not General Assembly records. And preliminary notes and other memoranda are exempt under the provisions of this Bill. Period. ROOM 420 STATE CAPITOL + SPRINGFIELD, ILLINOIS 62706 * TELEPHONE, reyLetter to Mr. Cole Lauterbach Page 2 (HL. Tr. May 25, 1983 (Rep. Bowman).) Moreover, the General Assembly amended the FOIA in Public Act 96-542. During debate on the legislation, one of the principal sponsors of the legislation made it clear that the intent of the General Assembly was to re-affirm the decision in Quinn: This amendment does not change the definition of a public body to include individual persons, such as aldermen, legislators, or other public officials and employees. Nothing in this amendment is intended to change the Quinn v. Stone decision (S. Tr. May 28, 2009 (Rep. Raoul).) This is consistent with several decisions finding appointment calendars and schedules maintained for personal convenience of an individual are not records of a public body. See Bloomberg, L.P. ». USS.E.C., 357 F Supp.2d 156 (D.C. Cir. 2004); Bureau of Nat. Affairs, Inc. v. U.S. Dept. of Justice, 742 F.2d 1484 (D.C. Cir. 1984). Even if the requested records were considered public records, the records would be exempt from disclosure for several reasons detailed below. First, the materials that would track the daily business of a public official, such as schedules and appointment calendars, fall under the “deliberative process” exemption of the FOIA. Section 7(1)(f) of the FOIA provides an exemption for [plreliminary drafis, notes, recommendations, memoranda and other records in which opinions are expressed, or policies or actions are formulated, except that a specific record of relevant portion of a record shall not be exempt when the record is publicly cited and identified by the head of the public body. The exemption provided in this paragraph ()) applies to all those records of officers and agencies of the General Assembly that pertain to the preparation of legislative documents. 5 LLCS 140/7(1)(1) (emphasis added). The “deliberative process” exemption protects the communications process and encourages frank and open discussions within state goverament: it protects deliberative communications pertaining to legislative action. Harwood v. McDonough, 344 IL, App. 3d 242, 248 (1° Dist. 2003). Records should not be disclosed where “the disclosure of ‘materials would expose an agency's decision-making process in such a Way as to discourage candid discussion within the agency and thereby undermine the agency's ability to perform its functions.” Dudman Communication v. Dep't. of Air Force, 815 F.2d 1565, 1568 (8" Cir. 1975). Several courts have addressed this issue in other states. The California Supreme Court refused to allow the public disclosure of the Governor's appointment calendars and schedules because of deliberative process concems. Times Mirror Co. v. Superior Court, 813 P.2d 240 (Cal. 1991). The court concluded that disclosing the identity of the persons with whom the Governor had met wasLetter to Mr. Cole Lauterbach Page 3 the functional equivalent of revealing the substance or direction of the Governor's judgment and mental processes; such information would indicate which interests or individuals he deemed to be of significance with respect to the critical issues of the moment. The intrusion into the deliberative process is patent. Id, at 251 (emphasis added). The court then emphasized the purpose of the deliberative process ‘exemption and how the records request at issue would run counter to public policy: If the law required disclosure of a private meeting between the Governor and a politically unpopular or controversial group, that meeting might never occur. Compelled disclosure could thus devalue or eliminate altogether a particular viewpoint from the Govemor's consideration, Even routine meetings between the Governor and other lawmakers, lobbyists or citizens” groups might be inhibited if the meetings were regularly revealed to the public and the participants routinely subjected to probing questions and scrutiny by the press. Id. ‘A Kentucky appellate court likewise held that the governor's daily appointment ledgers were exempt under the Kentucky Open Records Act. Courier-Journal v. Jones, 895 8.W.2d 6 (Ky. App. 1995), The court echoed much of the Times Mirror opinion, noting that participants to a meeting with the governor “may be chilled and discouraged by the knowledge that a meeting will routinely be disclosed” and that “judgments in ongoing policy matters may be prematurely revealed.” Id. at 9. “Access to a broad array of opinions and the freedom to seek all points of view, to exchange ideas, and to discuss policies in confidence, are essential to effective governance in a representative democracy.” Id. As the court also noted: ‘There is nothing novel about governmental confidentiality. The meetings of the Constitutional Convention in 1787 were conducted in complete privacy. *** Most of the Framers acknowledged that without secrecy[,] no constitution of the kind that was developed could have been written, Id, at 9-10 (citations omitted). Finally, the court noted that the appointment ledger fell under not only the spirit of the deliberative process exemption but the plain language, as the appointment schedule was “nothing more than a draft of what may or may never take place” and was therefore “preliminary” in nature. Id, at 10, See also id. at 8 (favorably citing an attorney general opinion that the Mayor of Louisville's appointment calendar was “nothing more than a work paper, a preliminary draft, notebook or memorandum”). Numerous courts, for many of the same reasons discussed above, have held that records of phone calls made of received by public officials are exempt under the deliberative process exemption. In Rogers v. Superior Court, 23 Cal. Rptr. 24 412 (Cal. App. 1993), a California appellate court refused to permit disclosure of telephone records of eity council members because such disclosure “would interfere with the flow of information to the government official and intrude on the deliberative process” of the legislators. /d. at 416, The Virginia Supreme Court, in finding that an itemized list of long-distance telephone numbers placed by the Governor's office was exempt from disclosure, notedLetter to Mr. Cole Lauterbach Page 4 the “chilling effect” on both the public official and the other party to the phone conversation if such information was publicly disclosed. Taylor v. Worrell Enterprises, Inc., 409 S.E.2d 136, 138 (Va. 1991). The court emphasized that divulging the mere existence of a telephone conversation—which a phone record would disclose—could be just as chilling as revealing the content of that communication. {d. at 139. Likewise, the Supreme Court of New Jersey has also refused to permit wholesale disclosure of telephone records, holding that “to interpret the Right-to-Know Law to require unqualified disclosure of the identity of the persons whom public officials have called is, incorrect.” North Jersey Newspapers v. Passaic, 601 A.24 693, 697 (N.J. 1992). ‘The documents you request ~ were they even public records in control of the House in the first instance (they are not) - would elearly fall within the deliberative process exemption. The records ‘you seek are no different than the records at issue in the cases cited above. The publication of the Schedules and appointment calendars of a legislator would infringe upon and chill the deliberative process. Moreover, schedules and appointment calendars clearly are preliminary in nature, as they Would not even reflect the actual occurrence of scheduled events. Such records only reflect a preliminary notion of meetings or appointments that may or may not ever take place. See Courier Journal, 895 S.W.2d at 8, 10. Additionally, your request raises privacy issues with respect to the persons and entities who may be identified in the records you seek. In particular, disclosure of such records may constitute a “clearly unwarranted invasion of personal privacy” in violation of Section 7(1)(c) of the FOIA. 5 ILCS 140/7(1)(c). Even the opening provisions of the FOIA state that “is not intended to cause an_ unwarranted invasion of personal privacy...” 5 ILCS 140/1. Further, and most significant, the Illinois Constitution provides that citizens have “the right to be secure in their persons, house, papers, and other possessions against . . . invasions of privacy. ...” Ill. Const. 1970, Art. I, § 6. Because citizens have a legitimate expectation of privacy regarding correspondence and other non- public materials, the House's disclosure of such private materials could violate the rights of the citizens affected. See, e.g.. Times Mirror Co. v. Superior Court, 813 P.2d 240 (Ca. 1991); Taylor v. Worrell Enterprises, 409 S.E.2d 136 (Va. 1991) (holding that even the existence of communications with a state official was not subject to disclosure due to the likelihood of speculation and further inquiries about the subject matter of the communications). ‘The concems expressed here are not mere legal jargon. An individual who exercises his or her constitutional right to petition the government for redress by contacting or meeting with a legislator, ‘see Ill. Const. 1970, Ant. I, § 5, would surely be surprised to learn that his or her name, contact information, and potential substance of their discussion is now posted on a website or in a newspaper following a FOIA request, By comparison, our appellate court held that FOIA did not require the disclosure of the names and addresses of previous FOIA requesters because of the privacy rights of those former requesters. Chicago Alliance for Neighborhood Safety v. City of Chicago, 348 Ill. App. 3d 188, 212 (1 Dist. 2004). If people exercising their statutory right to seek public records can have their names and personal information shielded from disclosure, it would be ludicrous to suggest that people exercising their constitutional right to petition their government cannot. Furthermore, your request is broad enough to cover records containing information of a personal nature unrelated to public duties, such as personal appointments and family engagements. The disclosure of such information would constitute a “clearly unwarranted invasion of personalLetter to Mr. Cole Lauterbach Page 5 privacy.” Therefore, the information would be exempt from disclosure under Section 7(1)(¢) of the FOIA. 5 ILCS 140/7(1\(6).. Lastly, your request may cover information that is subject to attorney-client privilege. To the extent you may consider this a denial of your request, you have the right to judicial review of this decision pursuant to Section 11 of the FOIA. In accordance with Section 9(a) of the FOIA, the following persons were consulted regarding your request: Justin Cox, Counsel to the Speaker, and Derek Persico, Chief Legal Counsel to the House Minority Leader. Singerely, A Brad Bolin FOIA Officer House of Representatives BB: