Ill. district goes to great lengths to keep data under wraps

Friday, May 29, 2009

Bad facts, the saying goes, make bad law. Head-scratching facts, on the other hand, apparently can make law that’s pretty good.

That’s one conclusion that can be drawn from the Illinois Supreme Court’s recent decision in Stern v. Wheaton-Warrenville Community Unit School District 200. Another is that government officials often go to incredible lengths to keep basic information out of the hands of involved citizens.

Mark Stern is a board member of Educate 200 Foundation, a group of parents and citizens frequently critical of the Wheaton-Warrenville school district. In January 2006, Stern requested, under Illinois’ Freedom of Information Act, a copy of the employment contract of the district’s superintendent, Dr. Gary Catalani.

Despite the fact that the Illinois FOIA expressly provides that public employees’ contracts are public records covered by the law, the district denied the request, relying on the exemption in the act protecting personnel files from disclosure. We keep the superintendent’s contract in his personnel file, the district said. Therefore, we don’t have to disclose it.

Stern took the issue to the Illinois attorney general, whose public access counselor informed Catalani that the contract should be released. Stern therefore renewed his request, but the district again denied it. Stern went back to the attorney general, who this time informed the district’s legal counsel that the contract should be released. The district, however, refused to reconsider its position.

During this back and forth, the district received two other FOIA requests for Catalani’s contract, both from local newspapers. Within days of receiving the first newspaper request, Catalani faxed his contract to the requesting reporter. In response to the second request, which was made by a reporter following up on the denials of Stern’s requests, the district agreed to make the contract available for inspection. At no time, however, did the district make a similar offer to Stern.

Stern sued the district in November 2006. During discovery, Catalani admitted that he refused to provide his contract to Stern because he objected to information posted on Educate 200’s Web site and because he did not believe Stern would use the information “in a fair and honorable way.”

Nevertheless, the trial court ruled in the district’s favor, relying in part on the Illinois Supreme Court’s 1997 decision in Lieber v. Board of Trustees of Southern Illinois University. In Lieber, the court held that materials falling within one of the act’s exemptions are per se exempt from disclosure, without further inquiry or examination by the court.

The trial court also relied on Copley Press, Inc. v. Board of Education for Peoria School District No. 150, in which an Illinois appellate court held a superintendent’s evaluation was exempt from disclosure, in part because the evaluation was maintained in the superintendent’s personnel file. The trial court did not address Stern’s argument that the district had waived the exemption by providing the contract to other requesters.

On appeal, the Illinois appellate court reversed and directed the trial court to review Catalani’s contract in camera (in private). Lieber’s per se rule could not apply to all information placed in a personnel file, the court said, because the law expressly provides that an employee’s privacy is not implicated if requested information bears on the employee’s job duties. Therefore, the appellate court directed the trial court to release all parts of Catalani’s contract that related to his employment functions.

Unwilling to accept the appellate court’s ruling, the district asked the Illinois Supreme Court to hear the case. The court agreed and, fortunately for proponents of open government, eliminated all doubts as to the availability of employees’ employment contracts.

In a refreshing approach, the court started with the public policy underlying the freedom-of-information law. Simply stated, the court said, the purpose of FOIA “is to open governmental records to the light of public scrutiny.” Moreover, the court said, because public records under FOIA are presumed to be open, the law’s exemptions be narrowly construed.

Against this backdrop, the court held that neither a per se rule nor an inquiry that starts and ends with where a contract is kept can defeat the act’s purposes. A superintendent’s contract, “by its very nature,” constitutes information that bears on the superintendent’s public duties. Therefore, even if the contract is maintained in the superintendent’s personnel file, it is not exempt from disclosure. All that is exempt, the court said, is private personal information.

Understandably concerned that the trial court and the district might attempt to expand the definition of “private,” the court specified that the only information that could be withheld was information such as Social Security and bank account numbers.

“We do not intend … for the in camera inspection to become a battle of details, requiring the circuit court to parse the contract and determine whether each individual paragraph or subsection bears on Catalani’s public duties,” the court said. “As already discussed, an employment contract, as a whole, bears on the employee’s public duties… . Thus, with the exception noted above for personal information, Catalani’s employment contract must be disclosed in its entirety.”

The decision in Stern comes at an interesting time in Illinois FOIA history. Determined to change the corrupt culture in state government, Gov. Pat Quinn and Attorney General Lisa Madigan are seeking sweeping ethical and other reforms. One of them is a complete rewrite of the FOIA, which the Illinois Press Association has called the worst in the nation.

A rewrite apparently will occur, although not in the exact language Madigan and the IPA had recommended and not through a process any advocate of open government would endorse. The Illinois House of Representatives approved the rewrite 116-0 on May 27, just hours after behind-closed-doors negotiations produced the bill and with no public hearing or opportunity for debate. The Senate voted 58-1 yesterday in favor of the measure, sending it on to the governor, who is expected to sign it.

While early reaction to the rewrite has been positive, some have noted that it does little to cover new types of records and leaves intact some of the most-often abused exemptions. As details of the new measure are digested, we likely also will learn that at least a few of new provisions will make access harder, not easier. After all, as Illinois has proven time and again, bad facts aren’t the only things that make bad law.

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