AG Letter to Sauk Valley News

8/6/2019 AG Letter to Sauk Valley News

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OFFICE OF THEATTORNEYGENERAL

STATE OF ILLINOIS

Lisa Madigan

XI- I' OIRNEY GENEliN

M a y 1 0 , 2011

Dr. Jane Eichman

Superintendent

Rock Falls Township High School Distr ict 301101 Twelfth Ave

Rock Falls, IL 61071.

Mr.David Guliani

S a uk Valley Newspapers

by emai l : dgiul iani7@n, gmail. c o m

RE: FOIA Request for Review—2011 PAC 12695

Dear Dr. Eichman a nd Mr. Giuliani:

W e have comp le ted our rev iew ofMr. Giuliani' s Reques t for Review regarding

the response by the R o ck F alls Township High School District 3 0 1 ( the District) to his request

for records und e r th e Freedom ofInformation Act (FOIA) ( 5 ILCS 1 4 0 / 1 e t seq. ( West 2009Supp.)). O n F ebru ary 2 5 , 2011, M r. Giul iani submitted requests fo r the fo l lowing documents,which have been numbered for convenience:

1 . The Feb. 24, 2011, res ignat ion a g re e m e n t b e tw e e n th e Rock Falls Township

High School District and s p ec i a l education teacher A.J . Buser;

2 . The texts, le t ters, emails, or other written materials that Mr. Buser sent to th e

student th at w e re deem ed inappropriate by th e schoo l district; and

3 . Any writ ten investigatory reports or other factual documentation used in the

c a s e involving Mr. Buser that led to his resignation.

On February 25 , 2011, the Distr ict provided Mr. Giul iani with the requestedresignation agreement. O n March 3 , 2 0 1 1 , th e District denied th e other parts ofMr. Giuliani' s

request, asserting that the responsive records are exempt under section 7 ( 1 ) ( n) of F O I A ( 5 ILCS1 4 0 / 7 ( 1 ) ( n ) ( W est 2 00 9 Supp.), a s amended by Public Act 9 6 - 1 3 7 8 , effective July 2 9 , 2010) ,which exempts f ro m i ns p e c ti o n and copy ing " [ r ] ecords re lat ing to a public body ' s adjudicat ion

ofem p loyee grievances or disciplinary cases; however, this exemption s ha ll n ot extend to the

500 South Second Street, Springfield, Illinois 62706 • ( 2 1 7 ) 782- 1 0 9 0 • - 1 " 1 ' V: ( 8 77) 844- 5 4 6 1 • Fax:( 217) 78 2- 7046

100 West Randolph Street,Chicago,

Illinois 60601 • ( 312)814-3000 • " IT•:(00) 964-3013 • Fax:( 312) 814- 3806

1001 East Main, Carbondale, Illinois 62901 • ( 618) 529- 64( 10 • rile(77) 675- 9339 • Fax:( 618) 529- 6416 • O



Dr. Eichman and Mr. Guliani

May 1 0 , 2 0 11Page 2

final outcomeocasesin whchdisciplinewas imposed." 5 ILCS 140/ 7( 1 ) ( n) ( West 2009

Supp.), a s amen ded b y Public A c t 96- 1378, ef fec t ive Ju ly 29 , 201 0 . Mr. Giuliani ' s Request fo rReview seeks our reviewof th e partial denia l ofhis reques t .

DETERMNATON

Section 7( 1 )( n)— Adjudication ofan Employee Disciplinary Case

O ur analysis ofwhether the Distr ict properly asserted the e xe m p tio n in sect ion

7 ( 1 ) ( n) turns on whether an " adjudicat ion" t ook place within th e mean ing of sect ion 7( 1 ) ( n). W efind that it did not.

The procedure for d ismiss ing t enu red teache rs for cause is se t o ut in sect ion 2 4 - 12

of the School Code ( 1 0 5 ILCS 5 / 24- 1 2 ( West 2008)), which provides:

If a d ismissa l o r re m o v al is sought for any other reason o r

cause [ o ther than reduction in n um b er ofpositions], including

those under Section 1 0 - 22.4, the board must first approve a motion

containing speci f ic c ha rg es b y a major i ty vote of a ll its members .Written notice ofsuch charges shall be served upon the teacher

within 5 days of the adoption of the motion. Such notice shall

conta in a bill of part iculars. N o h e a rin g u p o n th e c h ar ge s is

required unless th e te a c he r within 1 0 days af ter receiving notice

requests in writing of th e board that a hearing be scheduled, inwhich case th e b oa rd sha l l schedule a hear ing o n th os e charges

before a d i s in te res ted hea r ing officer on a date no less than 15 nor

more than 30 days after the enactment of the motion.

In its correspondence to our office dated March 29, 2011, the District informed us

of th e events leading to Mr. Buser ' s resignat ion. After a parent alerted th e Board of E d uc a tio n tocertain text mes s ages from Mr. Buser to a student, the Board conducted an investigation.

Fol lowing that investigation, the Board held a closed meeting on February 24, 2011, to considerth e Super intendent ' s recom m enda t i on to d ismiss Mr. Buser. The District presented ev idence

against Mr. Buser , and Mr. Buser had an oppor tuni ty to respond. After th e proceed ing bu t before

the Board m ad e a ny decision, Mr. Buser' s representat ive negotia ted a resignation agreement withthe Board. The Board returned to open session and approved Mr. Buser' s resignation.

Under these circumstances, we find that no " adjudication" took place. The Board

nei ther a pp ro v ed n or rejected a mot ion conta in ing speci f ic charges aga ins t Mr. Buser , which is

th e required first ste p in the statutory d ismissa l process. Because no ad ju d ica t io n t o o k place, weconclude that the District has not sustained its burden to prove that the withheld documents are

exempundersection7( 1 )( n) ofFOIA.



Dr. Eichman and Mr.Giuliani

May 10 , 201 1Page 3

Section 7. 5 ( r)— School Student Records

We next address the District' s assertion that the withheld records are exempt in

their entirety undersection7.5 ( r)oFOIA ( 5 ILCS 140/ 7 . 5 ( r) (West 2009 Supp.)) , whch

exempts from inspect ion and cop ying "( i] n fo rm a tion p roh ib it ed f rom being disc losed by theIllinois School Student Records Act." Section 6(a) of the Illinois School Student Records Act

105 ILCS 1 0 / 6 ( a ) ( W e st 2 0 09 Supp.) , as a m en de d by Public Act 9 7 - 1 0 0 0, effective Ju ly 2 ,

2010) prohibits disclosure of" school student records" except to the student' s parent or in other

limited circumstances not re levant here. The Act defines " schoo l student record" a s " any writing

or o the r recorded in format ion concern ing a student and by which a student m ay be individuallyidentified . . . ." 105 ILLS 10/ 2(d) ( West 2008).

The District ha s explained that R o c k Valley is a sma l l community and that release

of any details a bo u t th e student wou ld allow members of th e c om m un i t y toidentify

that student.Based up on o ur rev iew ofthe withheld documents , w e a gre e tha t they do co n t a in d e t a il s f rom

which t he s tu d en t could be ident if ied by s o meo ne w ho is familiar with th e people involved.

However, m u c h of th e information in these d o c u m e n t s relates solely to th e District' s

investigation a nd to Mr. Buser' s reactions to questions a nd reveals nothing about the student.

The District c o u ld p ro t ec t the student ' s identity by redact ing th e student ' s name and all factua l

d e t a il s t ha t would allow a m e m b e r of th e community to identify th e s tu d e nt.

F o r example, in th e invest igatory notes of the meet ing with Mr. B u s e r o n

February 3 , 201 1 , it appears that redact ion of th e entire first five bul leted ite m s u n de r th e

head ing , " Cindi began questioning Mr. Buser * * *" would be appropr iate. In th e following

paragraph, the District could redact the second sentence in the second bulleted item, and the

entire sixth bulleted item. However, the other items on this page could be disclosed without

identifying th e s tudent .

Once all information tha t could be us ed to identify th e s tu d en t ha s been redacted,

no s tudent " may be individually identified" by these records. Therefore , redacted vers ions ofthese records are not" school student records," and the Act does not prohibit their disclosure. We

conclude that the District has not sustained its burden to prove that these records are exempt in

their entirety u n d e r s e c tio n 7 . 5 ( r) ofFOIA.

Section 7. 5 ( q)— Personnel Records

The District a ls o a ss erts that th e withheld records are e x e m p t in their entiretyu n d e r s e c tio n 7 . 5 ( q ) of FOIA ( 5 ILCS 1 4 0 / 7. 5 ( q) ( W e s t 2 0 0 9 Supp.), a s amended by Publ ic Act

9 6- 1378, e ffe c tiv e J u ly 29 , 2010) , which exempts fro m in s pe c tio n and copying " in format ionpohbtedfrom being disclosed by the Personnel Records Review Act." In its March 29, 2011

correspondence, the District notes that while the Personnel Record Review Act ( 820 ILCS

4 0 / 0 . 0 1 et seq. ( W e s t 2008)) a l lows employees to inspect their o w n records, it does no t allowemployees to view " information of a personal nature about a person other than the employee if

disclosure othe information wouldconstitute a clearly unwarranted invasion o the other



Dr. Eichman and Mr.Guliani

May 10 , 2 0 1 1 ,Page 4

person s privacy." 82 0 ILCS 4 0 / 10( d) ( W e s t 2008) . A s d iscussed above, the District m a y redact

th e student ' s name an d a ll f ac tu a l d e ta il s that cou ld identify th e student. With this information

redacted, d isc losure of these records would n o t c o n st itu te a c l e a rly unw a rra n te d invas ion of th estudent ' s privacy, and therefore this prov is ion of th e P e rs on ne l Records Review Act would no t

apply.

Th e Personnel Records Review Act prohibits disclosure of only the following:disciplinary reports, letters ofr ep ri m a n d , o r o t he r records ofdisciplinary act ion which are more

than 4 yearsold" S e e 820 ILCS 40/ 8 ( West 2008). The records at issue are not more than four

years old. Accord ing ly , th e A c t does no t prohibit their disc losure. For these reasons, w econclude that the Dstrict has not sustained its burden to prove that these records are exempt in

their ent irety under sect ion 7 . 5 ( q) ofFOIA.

Section 7( 1 ) ( c)— Clearly Unwarranted Invasion ofPersonal Privacy

Final ly, we address th e District' s assert ion that th e records are exempt in t he ir

entirety under sect ion 7 ( 1 ) ( c ) ofF O IA ( 5 ILCS 140/ 7 ( 1 ) ( c ) ( West 2 0 0 9 Supp.), a s amended byPublic Act 9 6- 1378, effective July 2 9 , 2 0 1 0 ) . S ec t i on 7( 1 ) ( c) exem pts from inspection and

copying " [ p] ersonal in format ion contained within publ ic records, the disc losure ofwhich wou ld

const itute a clear ly unwarranted invasion ofpersonal privacy, unless th e disc losure is consented

to in writ ing by the individual subjects of the in format ion." Th e exempt ion definesu n w a rr an te d i nv a s io n of personal privacy" as " th e d isc losure ofinformation that is highly

persona l or objectionable to a reasonable pe rson a nd in which th e subject's right to privacy

outweighs any legitimate public interest in obtaining the information." 5 ILCS 140/ 7 ( 1 ) ( c)

W e s t 2 0 0 9 Supp.) , as am ended by Public Act 9 6 - 1 3 7 8, effective July 2 9 , 2 0 1 0 .

W h e n a publ ic body intends to deny access to information und e r sect ion 7 ( 1 ) ( c) , itmust first notify this office. 5 ILCS 140/ 9. 5 ( b) ( West 2009 Supp.) . The first time the Dstrict

asserted that section 7( 1 ) ( c) applied to these records was in its March 29 correspondence, and the

District a c kn o wle d ge d in th at correspondence that public b od ie s m a y assert th e exempt ion in

sect ion 7( 1 ) ( c ) only a fte r n o tic e to th e Public A c c e s s C o u n se lo r u nd e r s e c tio n 9 . 5 ( b) . W e take

th e District' s March 29 , 2011 c o rre s p on d e nc e to be t ha t n o t ic e , and w e d e n y th e District' s

request to withhold all of th e records in their entirety under sect ion 7( 1 ) ( c) .

The District ha s m a d e c lea r tha t it s concern is for th e privacy of th e s t uden t w ho

rece ived inappropriate text messages from Mr. Buse r , no t for Mr. B u s e r ' s privacy. W e agree

that release oft he s tu d en t' s identity in c o n n ec tio n with th is m a t te r would constitute a clearlyunwarranted invas ion of personal privacy. However, based on o ur review of th e docume nts , we

find that th e District m ay protect th e ident ity of th e student by redact ing information in th e

requested documents a s d is c us s ed a b ov e . The remaining information is no t highly personal , anddisclosure would not be objectionable to a reasonable person. We conclude that the Dstrict has

n o t s u st ain e d its burden to p ro v e th at these records are ex empt in their entirety u n d e r s e c tio n7 ( 1 )( c). Ifthe District intends to assert the exempionin section7( 1 ) ( c) wthrespect to specfic



Dr. Eichman and Mr. Guliani

May 10, 201 1Page 5

in format ion in these documents , the District m ay submi t a ne w request fo r pre- author izat ion to

this office pursuant to s e ctio n 9 . 5 ( b) ofFOIA.

Addit ional ly, we note that some of the withheld documents m ay be prel iminarydrafts o r notes th at w e re used to formulate th e District' s ac t ions and m a y be exempt under

sect ion 7 ( 1 ) ( f) ofFOIA. ' 5 ILCS 140 / 7( 1 ) ( f) (W e s t 2 0 09 S up p.), as am ended by Public Act 9 6-

1378, effective July 2 9 , 2 0 1 0 . If th e District plans to assert tha t a ny of these records are e x e m p t

under sect ion 7 ( 1 ) ( f), it m ay request permiss ion to do s o pursuant to sect ion 9 . 5 ( b).

CONCLUSION

The District has failed to meet its burden to demonstrate that the withheld

documents are exempt in th e ir entirety. Accordingly, the District m a y re da c t a ll information that

cou ld identify th e student w ho received i nappropr ia te text messages bu t m u s t re lease th e

remaining in format ion to the requester. Al ternate ly, the Distr ict m ay submit a request fo r pre-

author izat ion to deny in format ion in these re co rd s u nd e r sect ions 7( 1 ) ( c ) and/ o r 7 ( 1 ) ( f) ofFOIA.A request for pre-authorization should specifically identify th e information th e District asserts isexemp.

Ifyou have any questions, pease contact me at ( 312) 814- 2086. This

correspondence shall serve to close this matter.

Very truly yours

SARAHKAPLAN

Assistant Attorney Genera lPublic Access Bureau

cc: Cynthia DeCola

Hodges Loizzi Eisenhammer Rodick & Kohn LLP

3030 Salt Creek Lane, Suite 202

Arlington Heights, IL 60005

12695 rfrfpbex mpopernun

AG Letter to Sauk Valley News

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