The newsletter of the ISBA’s Standing Committee on Government Lawyers
The Freedom of Information Act and employment contracts: A case review of Stern v. Wheaton-Warrenville Community Unit School District 200
It seems that just a couple of years ago there were only a handful of cases discussing the Freedom of Information Act1 and its exemptions. Now, it appears that decisions under the Act are coming down on a more frequent basis. This past summer, the Illinois Appellate Court, Second District weighed in on the issue of employment contracts and whether they may be obtained through a Freedom of Information Act (FOIA) request in Stern v. Wheaton-Warrenville Community Unit School District 200.2
There are two main issues in Stern. The court was asked to determine: (1) whether the school superintendent’s employment contract was per se exempt from disclosure under the FOIA; and (2) whether disclosure of the superintendent’s contract by the superintendent himself waived the school district’s exemption claim. The trial court granted the school district’s motion for summary judgment. The appellate court found that there were questions of material fact regarding whether any part of the contract was exempt from disclosure and whether the voluntary disclosure of the contract to others waived the school district’s exemption claim. Therefore, the appellate court remanded the case to the trial court for further proceedings.
Background of the Case
In January 2006, Stern submitted a FOIA request to the Wheaton-Warrenville Community Unit School District 200 (the District) for a copy of the employment contract between it and Gary Catalani, the District’s superintendent. The District denied the request, claiming the document was contained in the superintendent’s personnel file and was therefore per seexempt from disclosure. After obtaining “a nonbinding Attorney General opinion” that employment contracts were not exempt from disclosure, Stern submitted a second FOIA request to the District for the superintendent’s contract. It was again denied. Stern appealed to the president of the school board, who affirmed the District’s denial.
Subsequently, Stern obtained “a second opinion from the Attorney General” stating that employment contracts are not exempt from disclosure under the FOIA and that article VIII, section 1 of the Illinois Constitution of 1970 required disclosure as the contract related to the expenditure of public funds.
Stern filed a complaint, seeking to enjoin the District from refusing to comply with the FOIA request. The complaint stated that although the District refused to provide him with a copy of the contract, a copy of the contract had been provided to others who had requested it. In addition, Stern also cited the Illinois Constitution as a reason the employment contract was not exempt.3 Discovery commenced; Catalani’s deposition was taken. Catalani testified that copies of his employment contract were located in his personnel file, his home, and his office. In addition, he noted that various District board members had copies. Catalani also stated that he had personally decided to supply a copy of his contract to the Chicago Tribune and Daily Herald outside the FOIA process (even though a FOIA request for the document had been submitted).4
After a period of discovery, the trial court granted the District’s motion for summary judgment, holding that Catalani’s employment contract was per se exempt from disclosure under FOIA because it was part of Catalani’s personnel file. The trial court relied on Copley Press, Inc. v. Board of Education for Peoria School District No. 150.5
The Court’s Analysis
The Freedom of Information Act–general application
The court’s analysis started with a review of the FOIA, its intent and the applicable provisions. The court’s discussion is substantially similar to that of other FOIA cases except for two key points.
First, the court clearly stated that simply because a document is in a personnel file does not make it per se exempt from disclosure, as could be concluded from Copley.6 The court then discussed Reppert v. Southern Illinois University,7 which was decided after the trial court’s ruling on the summary judgment motion. The court noted that Reppert addressed the “apparent conflict” between the personnel file exemption and the provisions contained within the definition of “public record”8 and section 7(1)(b)(ii), which provides that records which contain information on the public duties of public employees shall not be considered an invasion of personal privacy.9 After reviewing the pertinent case law, the court declined to follow the Copley case “to the extent that the Copley court purported to hold that employment contracts are per se exempt from disclosure under the FOIA.”10
Second, after determining that the superintendent’s employment contract was not per se exempt from FOIA disclosure, the court classified employment contracts as an example of a nonexempt record held within an exempt source.11 Such circumstances call for an in camera inspection of the records to determine if any portion of the contract does not bear on public duties and is exempt as a clearly unwarranted invasion of personal privacy.12 The court concluded that if no portion of the contract is exempt, it must be disclosed and if any portion is exempt it must be redacted, unless the claim of exemption is waived.13
Waiver of FOIA Exemptions
The discussion of whether the personal privacy exemption was waived centered on the impact of Catalani’s “personal decision” to disclose the employment contract to two newspapers in response to FOIA requests. Although the appellate court did not actually rule on the waiver issue, it did find that there was a question of fact as to whether Catalani had the authority to waive the FOIA exemption on behalf of the District and remanded the case back to the trial court for further proceedings.14 While the appellate court provided a discussion of law for the trial court to consider in ruling on the waiver question, there are aspects of the waiver rule that are not addressed.
In its discussion of the waiver issue, the appellate court cited federal case law recognizing that selective disclosure is unfavored and “offensive” for the purposes underlying the FOIA.15 Further, when considering whether Catalani had the ability to waive the FOIA exemption on behalf of the District, it should be kept in mind that it is his privacy interest that is at the center of the question. Catalani himself stated in his deposition that he considered the employment contract “private information.”16 If he did not think the information in the employment contract was too private to share with two newspapers, an argument by the District that there is a need for privacy protection sits on thin ice. This is particularly true when looking at section 7(1)(b) of the FOIA which provides that the exemption for personal information does not apply when “the disclosure is consented to in writing by the individual subject of the information.”17 Arguably, the disclosure of the information to the two newspapers – one of which was by Catalani himself – could be considered written consent for disclosure of the employment contract thus waiving the exemption provided under the FOIA. This is particularly true in light of the purpose and intent of FOIA, to allow the public to discuss public issues fully and freely, make informed political judgments and monitor government to ensure that it is being conducted in the public interest.18 If only certain requesters are given documents and others are not, full public discussion cannot occur.
The appellate court did recognize that the waiver determination is not a mechanical rule to be applied, but rather that the circumstances related to disclosure, including the purpose and extent, as well as the confidentiality surrounding the disclosure, must be considered.19 This is how it should be. However, there is little in the court’s analysis to provide guidance when determining when an exemption should be considered waived or, more importantly to the private interest, should not be considered waived. One of the cases relied on by the Stern court was Lieber v. Board of Trustees of Southern Illinois University.20 Lieber recognized that one of the reasons requested documents (a list of names and addresses of individuals who had contacted the university about freshman housing) should not be exempt under FOIA is that the university routinely made the information available to other groups.21
There is one aspect of finding documents not exempt from disclosure that is troubling. Throughout the Lieber court’s analysis, there is no mention of the potential student’s right to keep information private.22 When it comes to personal privacy issues, the FOIA recognizes it is the person’s right to privacy, which is why it requires written consent of the subject of the information to waive the exemption.23 There has been no discussion of the impact of a determination by a public body that has initially disclosed information but subsequently determines that it should not do so to protect personal privacy interests. A broad reading of the cases would support an argument that once someone’s information has been disclosed, an exemption can no longer be asserted. But, practically speaking, every day it becomes more difficult to protect our privacy, including our identity. At some point, the courts will need to take a step back from this line of reasoning and determine whether in particular circumstances even a person’s name and address are private information that should not be shared unless that person consents.
The Lieber case indicates that a name and address are not the type of private information sought to be protected by the FOIA.24 In setting forth this position, the Lieber court stated that if such a broad definition of personal information was used, the public would have no right to learn names of officials they put in public office or no way to confirm that their doctors are licensed to practice medicine.25 This is comparing apples and oranges. Public officials’ names should be known. In fact, many public officials want their names known at election time. The licensing status of doctors and attorneys should be verifiable. But, because this information should be available to the public and consumers does not mean that anyone should be able to obtain the name and address of anyone who applied to a university and was accepted (or sought services from a government agency but did not fit clearly within one of the exemptions). This is going too far. At some point, even the FOIA has to recognize that our identities need to be protected. Whether this is best done through case law distinguishing Lieber or through a legislative amendment to the FOIA is a question that remains to be answered.
Where does this leave us?
Stern has helped clarify what constitutes an employee’s personal information. Although we still do not have a definition of “personal information,” it is clear that the courts will find that an employment contract is not per se exempt from disclosure under the FOIA.26 This is the way it should be. However, if this issue arises, some key distinctions between Stern and Reppert and Copley need to be kept in mind. Stern and Reppert both recognize that employment contracts, although in a personnel file, are not necessarily exempt from the FOIA. Copley is distinguishable in that the documents requested, performance evaluations and a letter stating a basis for the superintendent’s dismissal, were documents typically kept in a personnel file which were found to be exempt from disclosure but which do not bear on public duties of public employees27 or the expenditure of public funds.
However, serious consideration should be given to the waiver doctrine as applied to a FOIA request. A requirement of consistency, which does have its benefits, may also have unintended effects, particularly when personal information, unrelated to public employees or officials or the operation of public business, is involved.