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The Attorney General’s Office has issued a new binding opinion (PAC Opinion 20-006) on a FOIA request which sought to obtain records from the Illinois Department of Corrections (IDOC) regarding data on head injuries incurred by inmates in IDOC custody as well as the policies for evaluating head injuries of IDOC inmates and IDOC employees. IDOC responded to the FOIA request denying it possessed or maintained any of the requested data or policies and indicated that it outsourced such matters to Wexford Health Sources and denied the request. The requester then appealed IDOC’s denial with the PAC.

Upon review the PAC cited Section 7(2) of FOIA which deems that public records possessed by a party with whom a public body has contracted to perform a governmental function on behalf of the public body, and that directly relate to the governmental function, are considered public records subject FOIA and the FOIA exceptions. This is to ensure that governmental entities do not avoid their disclosure obligations under FOIA by contractually delegating their responsibility to a private entity.  Based upon that, the PAC concluded that responsive aggregate data and policies in Wexford’s possession that directly relate to providing medical care to IDOC inmates on IDOC’s behalf are considered public records subject to disclosure under FOIA and subject to the FOIA exceptions.

Additionally, the PAC provided detailed analysis for a denial based upon Section 7(1)(g) (the trade secret exemption) and the PAC concluded that IDOC and Wexford failed to set forth any facts which indicated that the responsive records were “a trade secret, commercial or financial information” or that disclosure of any of the responsive records would cause competitive harm and thus not exempt under 7(1)(g).

The Take-Away: Although your public body may not possess documentation requested in a FOIA request because such is created and held by the third-party vendor, the documents may still be subject to the Freedom of Information Act if the vendor is providing a “government function”. 

Make sure to consult your Tressler attorney if you have questions or need assistance being compliant with FOIA or the Open Meetings Act!

For more information about this article, please contact Erik Peck at epeck@tresslerllp.com.