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It’s 2022 and the PAC is back! In its first opinion in 2022, in a binding opinion, the PAC ruled in favor of a public body in a FOIA appeal involving the attorney-client privilege exception of FOIA.

On October 4, 2021, a journalist, submitted a FOIA request to the State’s Attorney’s Office seeking copies of any and all reports the State’s Attorney gave to Kane County Board members regarding alleged actions to fund an educational degree using County funds. On October 8, 2021, the State’s Attorney’s Office denied the request pursuant to section 7(1)(m) of FOIA. In the denial letter, the State’s Attorney’s Office contended that the requested documents are protected by the attorney-client privilege and the Illinois work product doctrine because the State’s Attorney gave the requested records to elected officials, namely County Board members as their attorney giving legal advice and recommendations. The Illinois Supreme Court has described the attorney-client privilege as follows: (1) where legal advice of any kind is sought, (2) from a professional legal advisor in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence, (5) by the client, (6) are permanently protected, (7) from disclosure by himself or the legal advisor, (8) except the protection be waived.

In PAC Opinion 22-001, the PAC decided in favor of the Kane County States Attorney and found that the denial of the FOIA request did not violate FOIA request as it was exempt pursuant to exemption 7(1)(m) :

Section 7(1)(m) of FOIA exempts from disclosure:

Communications between a public body and an attorney representing the public body that would not be subject to discovery in litigation, and materials prepared or compiled by or for a public body in anticipation of a criminal, civil or administrative proceeding upon the request of an attorney advising the public body.

Although the Journalist argued that communications between an attorney and client for the primary purpose of managing general public relations issues did not fall within the scope of the attorney-client privilege, the record at issue did not provide public relations advice or devise a strategy for conveying information to the public or the media. The PAC determined that there was an attorney-client relationship with the County Board and thus, the State’s Attorney’s Office sustained its burden of proving by clear and convincing evidence that the responsive record qualifies as a confidential attorney-client communication because it was created for the purpose of providing legal guidance to County Board members on a specific issue.

Make sure to consult your Tressler attorney if you have questions or need assistance with Freedom of Information Act matters!

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