- Freedom of Information Act and Employment Records
- June 23, 2011 | Author: Michael R. Lied
- Law Firm: Howard & Howard Attorneys PLLC - Peoria Office
A couple of fairly recent cases provide some insight on the reach of the Freedom of Information Act in the context of employment-related records.
Mark Stern submitted a FOIA request to Wheaton-Warrenville Community Unit School District 200 requesting, among other things, a copy of the employment contract of the superintendent, Dr. Catalani. The District denied the FOIA request, because the contract was contained in the superintendent’s personnel file, and was therefore exempt from disclosure. Stern sued. The case ultimately reached the Illinois Supreme Court.
The Supreme Court noted that the purpose of FOIA is to open governmental records to the light of public scrutiny. Section 3 of the Act mandates that each public body shall make available to any person for inspection or copying all public records, except as otherwise provided in Section 7.
There was really no question that the school district was a “public body,” and the superintendent’s employment contract constituted a “public record” under the Act. “Public records” is defined as:
“[A]ll 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.”
5 ILCS 140/2(c).
The term “public records” includes “all information in any account, voucher, or contract dealing with the receipt or expenditure of public or other funds of public bodies.” 5 ILCS 140/2(c)(vii). Because Dr. Catalani’s employment contract was a public record, the school district was obligated to disclose the contract, unless there was an exception in Section 7.
Section 7 provides several exemptions from disclosure. In particular, 5 ILCS 140/7(1)(b)(ii) says:
The following shall be exempt from inspection and copying:
(b) Information that, if disclosed, would constitute a clearly unwarranted invasion of personal privacy, unless the disclosure is consented to in writing by the individual subjects of the information. The disclosure of information that bears on the public duties of public employees and officials shall not be considered an invasion of personal privacy. Information exempted under this subsection (b) shall include but is not limited to:
(ii) personnel files and personal information maintained with respect to employees, appointees or elected officials of any public body or applicants for those positions.
According to the Illinois Supreme Court, if the requesting party had challenged the public body’s denial of a FOIA request, the public body had the burden to demonstrate that the records requested fell within the claimed exemption. Where a public body asserts an exemption for information which is not specifically included in one of the enumerated exemptions in section 7(1)(b), the information is not per se exempt, and a court must determine, on a case-by-case basis, whether the disclosure of such information would constitute an unwarranted invasion of personal privacy.
The FOIA identifies specific items - such as personnel files - which fall within the personal privacy exemption. However, there is a limit in the statute on the reach of the personal privacy exemption: “The disclosure of information that bears on the public duties of public employees and officials shall not be considered an invasion of personal privacy.”
The Illinois Supreme Court observed that an “employment contract” is a contract between an employer and employee in which the terms and conditions of employment are stated. Thus, Dr. Catalani’s employment contract constituted information that bore on his public duties. The fact that an employment contract may be physically maintained within a public employee’s personnel file was deemed insufficient to protect it from disclosure. The contract’s physical location within an otherwise exempt record was irrelevant.
The Illinois Supreme Court held that an employment contract is not the kind of record the General Assembly intended to keep from public view and did not fall within the exemption for personnel files in section 7(1)(b) of the Act. The superintendent’s contract had to be disclosed.
On remand, the circuit court was directed to conduct an in camera inspection of the contract to determine whether it contained personal information (like a social security number or bank account information) which, if disclosed, would constitute an unwarranted invasion of Dr. Catalani’s personal privacy. Such information had to be deleted. However, except for such personal information, Dr. Catalani’s employment contract had to be disclosed in its entirety. Stern v. Wheaton-Warrenville Community Unit School District 200, 233 Ill.2d 396, 331 Ill. Dec. 12, 910 N.E.2d 85 (2009).
In 1995, Charles Kopchar applied to the City of Chicago for the position of firefighter. Kopchar took a written examination, which he passed. Ten years later the City advised Kopchar that he should fill out a card to participate in the next phase of testing. Kopchar returned the card and took a physical abilities test. Kopchar was later told that he did not achieve a passing score, and would no longer be considered for the position.
Kopchar sent a letter to Ciara, the director of personnel of the Chicago Fire Department, stating he believed the test result was wrong, that he was in excellent physical condition, and requested a review of the results pursuant to the Freedom of Information Act. Ciara later told Kopchar that the testing consultant reviewed the results and found no error.
Kopchar sent a FOIA request to the Chicago Fire Department requesting “[t]he results of the Firefighter Physical Abilities Test” and “the criteria that the Department uses to determine pass/fail.” The Department denied his request pursuant to an FOIA exemption found at 5 ILCS 140/7(1)(j).
The Chicago law department notified Kopchar that it would provide him his personal test score, and attached a copy of the Firefighter’s Physical Abilities Test Guide, which described the tasks covered by the test. The law department upheld the denial of the other information Kopchar requested.
Kopchar forwarded another FOIA request to the City seeking the identity of the independent contractor that administered the test. The City identified the company that administered as the test Human Performance Systems, Inc. (“HPS”), and pointed Kopchar to a website where he could find further information. The City advised that it had already provided Kopchar with a copy of the Firefighter Physical Abilities Test Guide. To the extent he requested other materials, that request was denied.
Kopchar filed suit against the City of Chicago, the fire department, and HPS. Kopchar’s second amended complaint alleged two counts against the City for the denial of Kopchar’s FOIA requests. The circuit court entered a final order granting the City’s motion for summary judgment, concluding that the information requested fell within the statutory exemptions. Kopchar appealed.
On appeal, Kopchar first argued that the circuit court erred in finding that his FOIA requests for the firefighter physical testing and scoring criteria fell within the FOIA’s exemptions.
In an earlier case, Roulette v. Department of Central Management Services, 141 Ill. App. 3d 394, 96 Ill. Dec. 587, 490 N.E.2d 60 (1st Dist. 1986), the plaintiff subpoenaed two records that were part of his application for state employment: an interviewing psychologist’s handwritten notes from his interview with plaintiff and his evaluation. The appellate court held that these documents were exempt pursuant to exemption section 7(j) of the FOIA.
Section 7(j) expressly exempts “[t]he questions, scoring keys and other examination data used to administer an academic examination or determine the qualifications of an applicant for a license or employment.” The disjunctive “or” does not limit the scope of the exemption to academic examinations. The language of the statute includes “other examination data” used to “determine the qualifications” of an applicant. The appeals court found that the results of the physical test for admission to the fire department fell squarely within the exemption of “other examination data” used to determine the qualifications of an applicant for a license or employment.
Kopchar maintained that the additional exemptions relied upon by the City in its summary judgment motion were waived because they were not cited in its earlier denial letter.
However, the court agreed with the City that there is no forfeiture because the FOIA mandates that the circuit court conduct a de novo review to determine if such records or any part thereof may be withheld under any provision of this Act. 5 ILCS 140/11(f).
The court of appeals agreed that the burden of proving an exemption with detailed specificity applies only upon review in the circuit court, and not in the denial letter. The City proved the exemptions it claimed in its summary judgment motion in the circuit court with sufficient detail.
FOIA section 7(1)(w) exempts “[i]nformation related solely to the internal personnel rules and practices of a public body.” 5 ILCS 140/7(1)(w). Roulette again governed the court’s consideration, because in that case, the psychologist’s notes and his evaluation of the job applicant results were also exempt from disclosure based on section 7(1)(w). Similarly, the fire department’s testing criteria and scoring process also related to personnel practices.
The City also took the position that the physical test scoring and criteria were exempt under the Illinois Personnel Record Review Act (820 ILCS 40/1). Section 7(1)(a) of the FOIA exempts “[i]nformation specifically prohibited from disclosure by federal or State law or rules and regulations adopted under federal or State law.” 5 ILCS 140/7(1)(a). The Illinois Personnel Record Review Act states, in pertinent part:
The right of the employee or the employee’s designated representative to inspect his or her personnel records does not apply to:
(b) Any portion of a test document, except that the employees may see a cumulative test score for either a section of or the entire test document.
820 ILCS 40/10.
The appellate court concluded that the plain language of this statute specifically excluded release of anything more than a cumulative test score. The record established that the City complied by providing Kopchar with his cumulative test score. Thus, the circuit court was correct in determining that all three exemptions cited by the City supported nondisclosure under the FOIA.
The appeals Court affirmed summary judgment for the City of Chicago.
Kopchar v. City of Chicago, 395 Ill. App. 3d 762, 335 Ill. Dec. 555, 919 N.E.2d 76 (2009).