OFFICE OF THE ATTORNEY GENERAL

STATE OF ILLINOIS
KWAME RAOUL
ATTORNEY GENERAL

March 24, 2022

. PUBLIC ACCESS OPINION 22-005

(Request for Review 2021 PAC 69011)

FREEDOM OF INFORMATION ACT:

Disclosure of Complaints
Alleging Public Employee Misconduct

Mr. Timothy McNicholas

CBS Chicago Reporter
CBS 2 Broadcast Center
22 West Washington Street
Chicago, Illinois 60602

Ms. Melissa Nunchuck

FOIA Officer
City of Chicago —— Department of Human Resources
121 North LaSalle Street, Room 100
Chicago, Illinois 60602

Dear Mr. McNicholas and M s . Nunchuck:

This binding opinion is issued by the Attorney General pursuant to section 9.5(f)
of the Freedom of Information Act (FOIA) (5 ILCS 140/9.5(f) (West 2020)). For the reasons
discussed below, this office concludes that the City of Chicago (City) Department of Human
Resources (Department) violated the requirements of FOIA by improperly denying in its entirety
a FOIA request submitted by Mr. Timothy McNicholas.

BACKGROUND
On November 8, 2021, Mr. McNicholas, on behalf of CBS Chicago, submitted a
FOIA request to-the Department seeking: '

500 South Second Street, Springfield, Illinois 62701 0 (217) 782-1090 0 I I Y: (877) 844-5461 0 Fax: (217) 782-7046
100 West Randolph Street, Chicago, Illinois 60601 ' (312) 814-3000 0 T I Y: (800) 964—3013 II Fax: (312) 814-3806
601 South University Ave, Carbondale, I L 62901 0 (618) 529-6400 O TTY: (877) 675-9339 0 Fax (618) 529-6416 ' @
Mr. Timothy McNicholas
Ms. Melissa Nunchuck
March 24, 2022
Page 2

[1] Any disciplinary records for Streets and Sanitations

employee Eric Duszynski.
[2] Records of any complaints of racism, discrimination or
harassment ever filed against Eric Duszynski.
[3] Records of any complaints of racism, harassment or
discrimination filed within the last 5 years regarding
employees at the 34th and Lawndale Streets and San.
facility.“]
Mr. McNicholas indicated to the Department that he was resubmitting this F OIA request in light
of the Public Access Bureau's non-binding determination concluding that the Department had
violated FOIA by denying his October 22, 2020, FOIA request for the same records.2 With his
submission, Mr. McNicholas included copies of his October 22, 2020, FOIA request3 and the
November 8, 2021, determination in which the Public Access Bureau concluded that the
Department improperly denied Mr. McNicholas' October 22, 2020, FOIA request in its entirety
pursuant to sections 7(1)(c)4 and 7(1)(f)5 of FOIA.6 This office had requested that the
Department disclose to Mr. McNicholas copies of the complaints responsive to the second and
third portions of the request, subject only to redactions of certain personal and private
information.7 Because the Department did not comply with the Public Access Bureau's non-
binding determination letter, on November 8, 2021, Mr. McNicholas sent the second FOIA
request seeking the same records.

1E-mail
from Tim McNicholas, CBS Chicago Reporter, to DHRFOIA@cityofchicago.org
(November 8, 2021).

2E-mail
from Tim McNicholas, CBS Chicago Reporter, to DHRFOIA@cityofchicago.org
(November 8, 2021).

3E-mail
from Tim McNicholas, CBS Chicago Reporter, to DHRFOIA@cityofchicago.org
(October 22, 2020).

45
ILCS 140/7(1)(c) (West 2020), as amended by Public Acts 102-038, effective June 25, 2021;
102-558, effective August 20, 2021.

55
ILCS 140/7(1)(f) (West 2020), as amended by Public Acts 102-038, effective June 25, 2021;
102-558, effective August 20, 2021.

6111.
Att'y Gen. PAC Req. Rev. Ltr. 65673, issued November 8, 2021, at 6-7.
7111.
Att'y Gen. PAC Req. Rev. Ltr. 65673, issued November 8, 2021, at 7-8.
Mr. Timothy McNicholas
Ms. Melissa Nunchuck
March 24, 2022
Page 3

On November 24, 2021, the Department provided Mr. McNicholas with a

"redacted work history and suspension notice"8 in response to the first portion of his request.9
1°
The Department redacted certain information from those records pursuant to sections 7(1)(a
and 7(1)(b)11 of FOIA.12 The Department further stated that it was still working on a response to
the second and third portions of Mr. McNicholas’ request and expected to complete its response
by December 3, 2021.13

On December 15, 2021, Mr. McNicholas sent an e-mail to the Public Access
Bureau concerning the Department's response to his FOIA request.l4 Mr. McNicholas stated that
the Department had complied with the first part of his request, but he had not yet received a
response to the remaining portions of his request.15 He inquired whether this office could
intervene or advise him of any other methods of recourse he might have. Because Mr.
McNicholas had submitted a new F OIA request on November 8, 2021, this office properly
treated Mr. McNicholas' December 15, 2021, e-mail as a Request for Review of the Department's
response to that request. On December 23, 2021, an Assistant Attorney General in the Public
Access Bureau e-mailed the Department a copy of that Request for Review and asked for the

8Letter
from Maureen Lawless, HR Records Administration Manager, Department of Human
Resources, City of Chicago, to Tim McNicholas, CBS Chicago Reporter (November 24, 2021), at 1.
9The
Department's November 24, 2021, response letter indicated that on November 17, 2021, it
had sought an extension for additional time to respond. Mr. McNicholas informed this office that he did not receive
that extension notice but was told by the Department that it had tried to send it to him using its FOIA portal. E-mail
fi'om [Timothy J. McNicholas] to [Teresa Lim, Assistant Attorney General, Public Access Bureau, Office of the
Illinois Attorney General] (January 20, 2022).

'05 ILCS 140/7(1)(a) (West 2020), as amended by Public Acts 102-038, effective June 25, 2021;
102-558, effective August 20, 2021.

” 5 ILCS 140/7(1)(b) (West 2020), as amended by Public Acts 102-038, effective June 25, 2021;
102-558, effective August 20, 2021.

12Letter
from Maureen Lawless, HR Records Administration Manager, Department of Human
Resources, City of Chicago, to Tim McNicholas, CBS Chicago Reporter (November 24, 2021), at 1.
13Letter
from Maureen Lawless, HR Records Administration Manager, Department of Human
Resources, City of Chicago, to Tim McNicholas, CBS Chicago Reporter (November 24, 2021), at 1.
14E-mail
from Tim McNicholas, CBS Chicago Reporter, to Public Access [Bureau, Office of the
Attorney General] (December 15, 2021).

15E-mail
from Tim McNicholas, CBS Chicago Reporter, to Public Access [Bureau, Office of the
Attorney General] (December 15, 2021).
Mr. Timothy McNicholas
Ms. Melissa Nunchuck
March 24, 2022
Page 4

status of the disclosure of the records responsive to the remaining portions of Mr. McNicholas'
underlying FOIA request.16

On January 5, 2022, the Department e—mailed the Public Access Bureau a letter in
which it maintained that it had properly denied Mr. McNicholas' October 22, 2020, FOIA
request, which sought the same records as the November 8, 2021, FOIA request.17 The
Department stated that the letter was "[i]n response to the remainder of Mr. McNicholas' F OIA
request, received by our office on November 9 , 2 0 2 1 , " and c0pied Mr. McNicholas on the e-mail
transmitting the letter.13 The Department explained that it was withholding a complaint against
the employee specified in the FOIA request and six additional responsive complaints.19 In its
letter, the Department reiterated its assertion that the records of complaints were exempt from
disclosure pursuant to sections 7(1)(c) and 7(1)(f) of FOIA.20 This letter constituted the
Department's final denial of Mr. McNicholas' November 8, 2021, FOIA request.

On January 7, 2022, Mr. McNicholas replied to the Department and COpied two
Assistant Attorneys General in the Public Access Bureau, maintaining that he is entitled to
receive the withheld records under FOIA.21 This office construed Mr. McNicholas' message as a
Request for Review challenging the Department's January 5, 2022, denial of the second and third
portions o f his November 8, 2021, F OIA request.

16E-mail
fi'om Jane Sternecky, Assistant Attorney General, Public Access Bureau, to DHR
(December 23, 2021).

17Letter
from Melissa Nunchuck, FOIA Officer, Department of Human Resources, City of
Chicago, to Teresa Lim, Assistant Attorney General, Public Access Bureau, Illinois Attorney General's Office
(January 5, 2022).

18E-mail
from Melissa [Nunchuck] to [Jane] Sternecky, [Assistant Attorney General, Public
Access Bureau, Office of the Attorney General] (January 5, 2021) (copying DHRFOIA, Teresa Lim, and Timothy J.
McNicholas).

19Letter
from Melissa Nunchuck, FOIA Officer, Department of Human Resources, City of
Chicago, to Teresa Lim, Assistant Attorney General, Public Access Bureau, Illinois Attorney General's Office
(February 7, 2022), at 5.
20Letter
from Melissa Nunchuck, FOIA Officer, Department of Human Resources, City of
Chicago, to Teresa Lim, Assistant Attorney General, Public Access Bureau, Illinois Attorney General's Office
(January 5, 2022), at 3, 5.
21E-mail
from Tim McNicholas, CBS Chicago Reporter, to [DHRFOIA, Jane Stemecky, Assistant
Attorney General, Public Access Bureau, Office of the Attorney General, Teresa Lim, Assistant Attorney General,
Public Access Bureau, Office of the Attorney General] (January 7, 2022).
Mr. Timothy McNicholas
Ms. Melissa Nunchuck
March 24, 2022
Page 5

On January 20, 2022, Mr. McNicholas provided the Public Access Bureau with
the materials necessary to complete his Request for Review.22 Later that day, the Public Access
Bureau sent a copy of the Request for Review to the Department and asked it to provide for this
office's confidential review copies of the records it withheld in response to Mr. McNicholas'
November 8, 2021 request.23 The Public Access Bureau also asked the Department to provide a
written response addressing the factual and legal bases for the applicability of the asserted FOIA
exemptions to those records.24

On February 7, 2022, the Department e-mailed the requested materials to this

office.25 The Department also separately e-mailed to this office copies of its written response
and the records that it had previously released to Mr. McNicholas.26
On February 8, 2022, this office forwarded a copy of the Department's written
response to Mr. McNicholas;27 he did not reply to that response.

Pursuant to section 9.5(f) of FOIA, on February 9, 2022, this office extended the
time within which to issue a binding opinion by 30 business days, to March 28, 2022.28

22E-mail
from Timothy J. McNicholas to Teresa Lim (January 20, 2022).
23Letter
from Teresa Lim, Assistant Attorney General, Public Access Bureau, Office of the
Attorney General, to Melissa Nunchuck, FOIA Officer, City of Chicago -— Department of Human Resources
(January 20, 2022), at 2.

24Letter
from Teresa Lim, Assistant Attorney General, Public Access Bureau, Office of the
Attorney General, to Melissa Nunchuck, FOIA Officer, City of Chicago — Department of Human Resources
(January 20, 2022), at 2 .

25E-mail
from Melissa Nunchuck to [Teresa] Lim (February 7, 2022).
26E-mail
from Melissa Nunchuck to [Teresa] Lim and [Timothy J. McNicholas] (February 7,
2022). In its e-mail, the Department advised: "Please see the attached response letter and documents. In response
to 2021 PAC 69011 (as a continuation of 2020 PAC 65673)." Although the Department's written response
referenced Mr. McNicholas' October 2020 Request for Review, 2020 PAC 65673, and stated that its "letter is in
response to the non—binding opinion by the Public Access Counselor ('PAC') in connection with" 2020 PAC 6567 3,
Request for Review 2020 PAC 65673 was already closed and the Department's February 7, 2022, correspondence
served only as an answer to the present Request for Review, 2021 PAC 69011.
27Letter
from Teresa Lim, Assistant Attorney General, Public Access Bureau, Office of the
Attorney General, to Timothy McNicholas, CBS Chicago Reporter (February 8, 2022).
28Letter
from Teresa Lim, Assistant Attorney General, Public Access Bureau, Office of the
Attorney General, to Timothy McNicholas, C B S Chicago Reporter, and Melissa Nunchuck, F OIA Officer, City of
Chicago —— Department of Human Resources (February 9, 2022).
Mr. Timothy McNicholas
Ms. Melissa Nunchuck
March 24, 2022
Page 6

ANALYSIS '
"It is a fundamental obligation of government to operate openly and provide
public records as expediently and efficiently as possible in compliance with [FOIA]." 5 ILCS
140/1 (West 2020). Under section 1.2 of FOIA (5 ILCS 140/1.2 (West 2020)), "[a]ll records in
the custody or possession of a public body are presumed to be open to inspection or copying."
Section 3(a) of FOIA (5 ILCS 140/3(a) (West 2020)) provides that "[e]ach public body shall
make available to any person for inspection or copying all public records, except as otherwise
provided in Sections 7 and 8.5 of this Act." The exemptions from disclosure contained in section
7 of FOIA29 are to be construed narrowly. See Lieber v. Board of Trustees ofSouthern Illinois
University, 176 Ill. 2d 401, 407 (1997).

Section 7(1)(c) of FOIA

Section 7(1)(c) of FOIA exempts from disclosure "[p]ersonal information

contained within public records, the disclosure of which would constitute a clearly unwarranted
invasion of personal privacy." Section 7(1)(c) defines "unwarranted invasion of personal
privacy" as "the disclosure of information that is highly personal or objectionable to a reasonable.
person and in which the subject's right to privacy outweighs any legitimate public interest in
obtaining the information." However, the exemption specifies that "[t]he disclosure of
information that bears on the public duties of public employees and officials shall not be
considered an invasion of personal privacy."

A public body's contention that the release of information would constitute a

clearly unwarranted invasion of personal privacy is evaluated on a case-by-case basis. Chicago
Journeymen Plumbers' Local Union 130 v. Dep 't of Public Health, 327 Ill. App. 3d 192, 196 ( l s t
Dist. 2001). The phrase "clearly unwarranted invasion of personal privacy" evinces a strict
stand to claim the exemption, and the burden is on the public body having charge of the
record to prove that standard has been met. Schessler v. Dep 't of Conservation, 256 Ill. App. 3d
198, 202 (4th Dist. 1994). Illinois courts consider the following factors in determining whether
disclosure of information would constitute an unwarranted invasion of personal privacy: "(1) the
plaintiffs interest in disclosure, (2) the public interest in disclosure, (3) the degree of invasion of
personal privacy, and (4) the availability of alternative means of obtaining the requested
information." National Ass'n of Criminal Defense Lawyers v. Chicago Police Dep’t, 399 Ill.
App. 3d 1, 13 ( l s t Dist. 2010).

295
ILCS 140/7 (West 2020), as amended by Public Acts 102-038, effective June 25, 2021; 102—
558, effective August 20, 2021.
Mr. Timothy McNicholas
Ms. Melissa Nunchuck
March 24, 2022
Page 7

Under the first two factors of the balancing test, Mr. McNicholas' interest as a
member of the media seeking to disseminate information to the public through news reporting
aligns with the public interest in disclosure of the records. He contends that "the public has a
right to know to what extent racism and discrimination exists in this taxpayer-funded
department."30 In its answer to this office, the Department appeared to acknowledge that there
was a public interest in disclosure of the complaints because the information bears on the public
duties of public employees, but argued that the complainants' privacy rights outweighed the
public interest in disclosure of the information.“ The Department also argued that there are
public policy reasons for maintaining the confidentiality of the complaint information:

to protect complainants from retaliation; to encourage

complainants to come forward with complaints without fear that
the details of their complaint will be subject to workplace gossip;
and, to protect the integrity of the investigative process. The fact
that a complainant happens to work for a public employer who is
subject to FOIA should not abrogate the reasonable and legitimate
expectation that their complaint will be kept confidential.[32]

In addition, the Department argued that disclosure of the records would discourage City
employees from seeking internal resolutions of complaints, and instead lead them to pursue
outside resolutions at a higher cost to the City and its taxpayers.33

In addressing the third factor of the balancing test, the degree of invasion of
personal privacy, the Department asserted that ”[t]he written interview statements of the
complainants contain discussions of intimate interactions of a sexual or racial nature and as such,

30E-mail
from Tim McNicholas, CBS Chicago Reporter, to [DHRFOIA, Jane Sternecky, Assistant
Attorney General, Public Access Bureau, Office of the Illinois Attorney General, Teresa Lim, Assistant Attorney
General, Public Access Bureau, Office of the Illinois Attorney General] (January 7, 2022).

3‘Letter
from Melissa Nunchuck, FOIA Officer, Department of Human Resources, City of
Chicago, to Teresa Lim, Assistant Attorney General, Public Access Bureau, Illinois Attorney General's Office
(February 7, 2022), at 3.

32Letter
from Melissa Nunchuck, FOIA Officer, Department of Human Resources, City of
Chicago, to Teresa Lim, Assistant Attorney General, Public Access Bureau, Illinois Attorney General's Office
(February 7, 2022), at 3.
33Letter
from Melissa Nunchuck, FOIA Officer, Department of Human Resources, City of
Chicago, to Teresa Lim, Assistant Attorney General, Public Access Bureau, Illinois Attorney General's Office
(February 7, 2022), at 4.
Mr. Timothy McNicholas
Ms. Melissa Nunchuck
March 24, 2022
Page 8

disclosure of those statements would be objectionable to a reasonable person."34 The

Department contended that information provided by the complainants "could be highly
embarrassing to" the complainants if released and "subject them to additional workplace
harassment," as well as subject the accused "to embarrassment and unwarranted negative
attention if such accusations are determined to have been unfounded."35

Further, the Department cited Federal, State, and local policies and guidance in
support of "the legitimate privacy expectations" complainants have in their complaints.36 The
Department referenced Federal guidance from the Equal Employment Opportunity Commission
(EEOC) concerning complaints of sexual harassment for which "employers are encouraged to
take steps to 'ensure confidentiality as much as possible [citation]."‘37 The regulations provide, in
part, that "[n]either a charge, nor information obtained during the investigation of a charge of
employment discrimination under title VII [of the Civil Rights Act of 1964], the ADA
[Americans with Disabilities Act], or GINA [Genetic Information Nondiscrimination Act] * * *
shall be made matters of public information by the Commission prior to the institution of any
proceeding under” those Federal laws.38 The Department noted that the Illinois Department of
Human Rights' regulations also provide that its agency files related to charges are not subject to
public disclosure, with certain exceptions.39 The Department also explained that the City's
Diversity and Equal Employment Opportunity Policy (EEO Policy) is consistent with the

34Letter
from Melissa Nunchuck, FOIA Officer, Department of Human Resources, City of
Chicago, to Teresa Lim, Assistant Attorney General, Public Access Bureau, Illinois Attorney General's Office
(February 7, 2022), at 2.

35Letter
fiom Melissa Nunchuck, FOIA Officer, Department of Human Resources, City of
Chicago, to Teresa Lim, Assistant. Attorney General, Public Access Bureau, Illinois Attorney General's Office
(February 7, 2022), at 3-4.

36Letter
from Melissa Nunchuck, FOIA Officer, Department o f Human Resources, City of
Chicago, to Teresa Lim, Assistant Attorney General, Public Access Bureau, Illinois Attorney General's Office
(February 7, 2022), at 3.

3"’Letter
fi'om Melissa Nunchuck, FOIA Officer, Department of Human Resources, City of
Chicago, to Teresa Lim, Assistant Attorney General, Public Access Bureau, Illinois Attorney General's Office
(February 7, 2022), at 3 (citing U.S. Equal Employment Opportunity Commission, "Policy Guidance on Current
Issues of Sexual Harassment," https://www.eeoc.gov/laws/guidance/policy-guidance—current-issues-sexual-
harassment).

3829
C.F.R. § 1601.22.

”See 2 Ill. Adm. Code. § 926.210(a) (1980), amended at 41 111. Reg. 11555, effective August 29,
2017.
Mr. Timothy McNicholas
Ms. Melissa Nunchuck
March 24, 2022
Page 9

EEOC's guidance and provides, that for complaints of discrimination, harassment, or retaliation:
"All complaints and investigations will be kept confidential, to the extent possible!”0

As to the fourth factor of the balancing test, the Department contended that "the
public's right to know about the extent of harassment or sexual harassment taking place in the
workplace can still be satisfied through other records. Specifically, disciplinary action taken
against employees who violate the City's EEO Policy is not exempt from disclosure."41

This office has reviewed the parties' arguments and the withheld records and
concludes that, on balance, disclosure of most of the complaints' contents would not constitute a
clearly unwarranted invasion of any individual's personal privacy. There is a significant public
interest in information that sheds light on claims of racial discrimination, harassment, and other
forms of public employee misconduct and the circumstances surrounding those claims. Greer v.
Board of Education of the City of Chicago, 2021 IL App (lst) 200429, 1113, _ N.E.3d __
(2021) ("'[R]acial discrimination [is] a matter inherently of public concern.’ [Citation] The
public has a substantial interest in allegations of racial discrimination by public bodies and the
Board's response to the allegations, even when the allegations pertain to a single employee");
State Journal-Register v. University of Illinois Springfield, 2013 IL App (4th) 120881, W48, 51,
994 N.E.2d 705, 717 (2013) (recognizing a legitimate public concern in actions and behaviors of
coaches preceding alleged sexual misconduct but minimal interest in explicit details of that
conduct).

Disclosure of the complaint records implicates the privacy interests of three

categories of individuals: the City employees accused of alleged misconduct, the complainants,
and third parties mentioned incidentally. The complaints describe alleged workplace misconduct
by City employees, but section 7(1)(c) of F OIA expressly provides that the disclosure of
information that bears on the public duties of public employees does not constitute an
unwarranted invasion of personal privacy. Ill. Att'y Gen. Pub. Acc. Op. No. 18-018, issued
December 31, 2018, at 6 (complaints or allegations of misconduct against public employees are
generally not exempt from disclosure in whole under section 7(1)(c) because such information
bears on the performance of the employees' public duties).

40City
of Chicago Diversityand Equal Employment Opportunity Policy XIII. Investigation
Reports and Communications with Parties, c. Confidentiality (effective February 1, 2019), at 7, available at
https://www.chicago.gov/content/dam/city/depts/dhr/supp_info/HRpolicies/COC_EEO_Policy_Final_eff_0_0 1__19.
pdf.
41Letter
from Melissa Nunchuck, FOIA Officer, Department of Human Resources, City of
Chicago, to Teresa Lim, Assistant Attorney General, Public Access Bureau, Illinois Attorney General's Office
(February 7, 2022), at 4.
Mr. Timothy McNicholas
Ms. Melissa Nunchuck
March 24, 2022
Page 10

Further, disclosure of such complaints Would not be an unwarranted invasion of

the accused employees' privacy interests even if those complaints are later determined to be
unfounded. In Gekas v. Williamson, 393 Ill. App. 3d 573, 574 (4th Dist. 2009), the Illinois
Appellate Court considered whether citizen complaints against a deputy sheriff and related
records were exempt from disclosure under a prior version of section 7(l)(c), which also
expressly excluded from its scope information that bears on the public duties of public
employees.42 The trial court had ruled that files concerning unfounded complaints could be
withheld to protect the deputy's privacy interests. Gekas, 393 Ill. App. 3d at 578. The appellate
court reversed, holding that records concerning alleged wrongdoing in the course of the deputy's
public duties were subject to disclosure regardless of whether the underlying allegations had
merit. Gekas, 393 Ill. App. 3d at 586.

By contrast, the complainants, as well as witnesses and third parties described

incidentally in the complaints, have legitimate privacy interests in the disclosure of their
identities. As the Attorney General recognized in Binding Opinion 18—018, "[i]nformation
identifying individuals who made complaints of this nature against public employees is highly
personal; the subjects' privacy rights outweigh any legitimate public interest in disclosure of their
identities.” Ill. Att'y Gen. Pub. Acc. Op. No. 18-018, at 6. The Attorney General concluded that
"names and other discrete information in the reports that identify the complainants are exempt
from disclosure pursuant to section 7(1)(c).” Ill. Att'y Gen. Pub. Acc. Op. No. 18—018, at 6.
Similarly, courts have concluded that the identifying information of third parties is generally
exempt from disclosure to protect personal privacy interests. See, e.g., Mays v. Drug
Enforcement Administration, 234 F.3d 1324, 1327 (DC. Cir. 2000) ("Absent exceptional
circumstances, the balance [between the public interest in disclosure and the right to privacy]
categorically favors withholding the names and addresses of third parties as" such information
does not provide insight into the conduct or performance of a government agency).

42At
the time o f the Gekas case, section 7(1)(b)(ii) of FOIA (5 ILCS 140/7(l)(b)(ii) (West 2006))
provided: ‘

(b) Information that, if disclosed, would constitute a clearly

unwarranted invasion of personal privacy, unless the disclosure is consented to
in writing by the individual subjects of the information. The disclosure of
information that bears o n the public duties o f public employees and officials
shall not be considered an invasion of personal privacy. Information
exempted under this subsection (b) shall include but is not limited to:

*IIEII‘

(ii) personnel files and personal information maintained with

respect to employees, appointees or elected officials of any public body
or applicants for those positions[.] (Emphasis added.)
Mr. Timothy McNicholas
Ms. Melissa Nunchuck
March 24, 2022
Page 11

Here, the names and other identifying information of the complainants and third
parties mentioned in the complaints are likewise highly personal, and those individuals' privacy
rights outweigh the public's interest in the disclosure of that information.

The complainants also have a privacy interest in certain graphic or salacious

details in portions of the complaints. In State Journal-Register, the Illinois Appellate Court
considered whether two categories o f information related to a sexual misconduct allegation
involving a softball team fell within the scope of section 7(1)(c): "(1) the detailed accounting of
the sexual misconduct and (2) the actions and behaviors of the coaches preceding the act of
sexual misconduct.” State Journal-Register, 2013 IL App (4th) 120881, 1155, 994 N.E.2d at 718.
The court found that certain witness statements contained "salacious" and "explicit" information
concerning the alleged sexual misconduct and that "[t]he details of that sexual misconduct are
highly personal, which weighs heavily in favor of exemption." State Journal—Register, 2013 IL
App (4th) 120881, 111148, 56, 994 N.E.2d at 717-18. The court concluded that those witness
statements fell within the scope of section 7(1)(c), but statements from the team's coaches did
not, except for certain discrete parts. State Journal-Register, 2013 IL App (4th) 120881, 1158,
994 N.E.2d at 719.

Based on this office's review of the complaints at issue, portions of some of the
complaints contain graphic or salacious details. The complainants have legitimate privacy
interests in highly specific information describing sexually explicit conduct or remarks. State
Journal-Register, 2013 IL App (4th) 120881,111148, 56, 994 N.E.2d at 717-18. Those graphic or
salacious details are inherently highly personal, and the complainants' right to privacy outweighs
the public interest in that information. In addition, some of the complaints contain details about
the complainants' families or private lives that are highly personal in nature and do not pertain to
their public duties. Therefore, the complainants' right to privacy also outweighs the public
interest in that particular information.

The privacy rights of complainants and third parties, however, can be protected by
redacting discrete portions of the records rather than by withholding them in their entireties.
Only small portions of the records contain descriptions that could be characterized as graphic or
salacious. The complaints contain many general descriptions of alleged discrimination or
harassment by City employees while on the job. The complainants' identities cannot be
discerned from those general descriptions if their names and other discrete personally-identifying
details are redacted, and they have a minimal privacy interest in the content. In contrast, there is
a significant public interest in disclosure of alleged instances of workplace harassment and
discrimination. Although the Department highlighted certain Federal and State regulations
containing confidentiality provisions for certain types of employee complaints and
investigations, the Department did not assert that those laws or regulations prohibit it fiom
disclosing the portions of the complaints at issue in this matter.
Mr. Timothy McNicholas
Ms. Melissa Nunchuck
March 24, 2022
Page 12

This office acknowledges the Department's policy concern that failing to protect
the confidentiality of complainants could discourage employees from reporting alleged
misconduct. This office also acknowledges the Department's interest in protecting complainants
from embarrassment or other negative attention. As previously noted, however, the identities of
complainants and third parties, and salacious details concerning them and the alleged incidents,
can be protected by redacting portions of the complaints that contain personally—identifydng
information, highly personal information such as graphic details of the incidents that occurred,
and details about family matters or other aspects o f private lives.” Disclosing those records with
such redactions would strike an appropriate balance between the public interest in disclosure and
the complainants' privacy interests. See State Journal-Register, 2013 IL App (4th) 120881, 1166,
994 N.E.2d at 720 (student's correspondence not exempt from disclosure in its entirety under
section 7(1)(c) because redaction of student's name protected the student's privacy interests).

State courts in other jurisdictions have taken similar approaches in balancing the
public interest in information concerning public employee misconduct and protecting the privacy
interests of complainants. See, e.g., Rocque v. Freedom of Information Comm 'n, 255 Conn. 651,
6 6 8 , 774 A . 2 d 9 5 7 , 9 6 7 (Conn. 2 0 0 1 ) (reversing lower court's finding that entire sexual
harassment complaint and all of the complainant's statement were exempt from disclosure under
the personal privacy exemption in Connecticut's version of FOIA, but agreeing that the
complainant's identity and sexually explicit portions of documents fell within scope of the
exemption); Linzmeyer v. Forcey, 2002 WI 84, fi40-42, 254 Wis. 2d 306, 331-32, 646 N.W.2d
811, 821-22 (Wis. 2002) (affirming lower court's finding that investigation report concerning
teacher's alleged inappropriate conduct was not exempt from disclosure under Wisconsin's open
records law but remanding for appropriate redactions, such as identities of students who were
interviewed); Deseret News Publishing Co. v. Salt Lake County, 2008 UT 26, 111134-36,182 P.3d
372, 381 (Utah 2008) (reversing lower court's ruling that county properly withheld investigative
report concerning a sexual harassment complaint under Utah's version of FOIA because there
was a legitimate public interest in disclosure of the report despite the remote possibility that "a
dedicated and enterprising person [could] derive the identities of one or more witnesses
regardless of the precautions taken to preserve their anonymity."). But see Morales v. Ellen, 840
S.W.2d 519, 525 (Tex. App. 1992) (finding "that the public does not possess a legitimate interest
in the identities o f the individual witnesses, nor the details of their personal statements beyond
what is contained in the documents that have been ordered released").

435
ILCS 140/7(1) (West 2020), as amended by Public Acts 102-038, effective June 25, 2021; 102-
558, effective August 20, 2021 (”When a request is made to inspect or copy a public record that contains
information that is exempt from disclosure under this Section, but also contains information that is not exempt fiom
disclosure, the public body may elect to redact the information that is exempt. The public body shall make the
remaining information available for inspection and c0pying.")
Mr. Timothy McNicholas
Ms. Melissa Nunchuck
March 24, 2022
Page 13

Finally, there does not appear to be an alternative means for Mr. McNicholas to
obtain the responsive records. The Department contended that the public interest in the extent of
harassment or discrimination in the workplace might be satisfied by the records of disciplinary
action taken against employees who are found to have violated the City's EEO policy. However,
the information the City disclosed to Mr. McNicholas in response to the first portion of his FOIA
request concerning one disciplinary action was limited. Specifically, the records reflect that an
employee received a suspension. The notice of suspension merely referenced a City EEO
investigation number and stated that the individual was in violation of a specified rule number.
The notice provides no other information regarding any complaints or incidents that served as the
basis for the Department's decision to issue the suspension. Further, the Department has not
demonstrated that there is any other means by which Mr. McNicholas could obtain information
about the accusations of workplace misconduct that have not resulted in a finding of an EEO
policy violation.

Accordingly, this office concludes that the Department has not demonstrated by
clear and convincing evidence that the complaints responsive to Mr. McNicholas' FOIA request
are exempt from disclosure in their entireties under section 7(1)(c) of FOIA.

Section mm of FOIA
Section 7(1)(t) of FOIA exempts from disclosure "[p]re1iminary drafts, notes,
recommendations, memoranda and other records in which opinions are expressed, or policies or
actions are formulated, except that a specific record or relevant portion of a record shall not be
exempt when the record is publicly cited and identified by the head of the public body." The
section 7(1)(f) exemption applies to "inter- and intra-agency predecisional and deliberative
material." Harwood v. McDonough, 344 Ill. App. 3d 242, 247 ( l s t Dist. 2003). Section 7(1)(f)
is "intended to protect the communications process and encourage frank and Open discussion
among agency employees before a final decision is made." Harwood, 344 Ill. App. 3d at 248.
The Illinois Appellate Court has stated that "purely factual material" is not exempt from
disclosure under section 7(1)(f) unless the factual material is "'inextricably intertwined” with
predecisional discussions. Watkins v. McCarthy, 2012 IL App ( l s t ) 100632, 1136, 980 N.E.2d
733, 740 (2012) (quoting Enviro Tech International, Inc., v. United States Environmental
Protection Agency, 371 F.3d 370, 374-75 (7th Cir. 2004)). Rather, "[o]nly those portions of a
predecisional document that reflect the give and take of the deliberative process may be
withheld." Kalven v. City of Chicago, 2014 IL App (lst) 121846,1124, 7 N.E.3d 741, 748 (2013),
rev'd on other grounds by Perry v. Dep 't of Financial and Professional Regulation, 2018 IL
123349, 106 N.E.3d 1016 (2018) (quoting Public Citizen, Inc. v. Ofiice of Management &
Budget, 598 F.3d 865, 876 (DC. Cir. 2010)).
Mr. Timothy McNicholas
Ms. Melissa Nunchuck
March 24, 2022
Page 14

The Department's response to this office stated that ”the purpose of the Section
7(1)(t) exemption is to allow decision makers to engage in frank discussions consisting of the
free flow exchange of opinions and thoughts without the worry of public scrutiny."44 The
Department contended that the withheld complaints fell within the scope of section 7(1)(t)
because they "demonstrate the opinions and deliberations by the authors in preparation for an
action or policy which had not yet been accomplished.”45 According to the Department, the
complaint against the named employee falls within the scope of section 7(1)(f) because "it is a
statement presenting alleged facts and opinions of one employee."‘46 The remaining withheld
complaints similarly "present descriptions of events and conduct as experienced by the
complaining employees."47 The Department argued that the complaints are preliminary in
nature, as at the time that they were submitted, it "had not taken any steps to substantiate the
allegations and had not yet made a decision about which of the facts DHR would investigate."48

The Department has not demonstrated that the complaints reveal information that
would provide insight into the give-and-take of any Department decision-making process.
Complaints may lead to a process that involves deliberative discussions culminating in final
action, but the complaints themselves are not part of that deliberative process. The complaints
do not, for instance, reveal the mental impressions or opinions of the investigators who reviewed
them. Instead, the complaints precede the decision-making process and are factual in nature,
providing the dates of particular incidents and descriptions of the alleged conduct that occurred.
Noting that purely factual information is not exempt from disclosure, the court in State Journal-
Register advised that "[f]actual information includes that which is collected within investigative
reports, such as affidavits of witnesses and investigator's interviews[.]” State Journal—Register,

44Letter
from Melissa Nunchuck, FOIA Officer, Department of Human Resources, City of
Chicago, to Teresa Lim, Assistant Attorney General, Public Access Bureau, Illinois Attorney General's Office
(February 7 , 2022), at 5.

45Letter
from Melissa Nunchuck, FOIA Officer, Department of Human Resources, City of
Chicago, to Teresa Lim, Assistant Attorney General, Public Access Bureau, Illinois Attorney General's Office
(February 7 , 2022), at 5.

46Letter
from Melissa Nunchuck, FOIA Officer, Department of Human Resources, City of
Chicago, to Teresa Lim, Assistant Attorney General, Public Access Bureau, Illinois Attorney General's Office
(February 7 , 2022), at 5.

47Letter
from Melissa Nunchuck, FOIA Officer, Department of Human Resources, City of
Chicago, to Teresa Lim, Assistant Attorney General, Public Access Bureau, Illinois Attorney General's Office
(February 7 , 2022), at 5-6.

48Letter
from Melissa Nunchuck, FOIA Officer, Department of Human Resources, City of
Chicago, to Teresa Lim, Assistant Attorney General, Public Access Bureau, Illinois Attorney General's Office
(February 7, 2022), at 6.
Mr. Timothy McNicholas
Ms. Melissa Nunchuck
March 24, 2022
Page 15

2013 IL App (4th) 120881, 1127, 994 N.E.2d at 713. In that case, the court concluded that
witness statements did not fall within the scope of section 7(1)(f) because they "contain factual
accountings of the events by witnesses, [and] are capable of standing alone, with no evidence
they are 'inextricably intertwined' with the predecisional process.” State Journal-Register, 2013
IL App (4th) 120881, 1l30, 994 N.E.2d at 714.

Because the complaints do not reveal the Department's predecisional deliberative

process for responding to the complaints, this office concludes that the Department did not
sustain its burden of demonstrating by clear and convincing evidence that the records are exempt
from disclosure pursuant to section 7(1)(f) of FOIA.

FINDINGS AND CONCLUSIONS

After full examination and giving due consideration to the available information,
the Public Access Counselor's review, and the applicable law, the Attorney General finds that:

1) On November 8, 2021, Mr. Timothy McNicholas, on behalf of CBS Chicago,

submitted a FOIA request to the City of Chicago Department of Human Resources seeking: (1)
any disciplinary records for a named City employee; (2) records of any complaints of racism,
discrimination or harassment against that named employee; and (3) records of any complaints of
racism, discrimination or harassment against any employees at a particular Streets and Sanitation
facility filed within the previous five years.

2) On November 24, 2021, the Department responded to Mr. McNicholas by

providing copies o f records responsive to the first item in his request. The Department stated it
was working on a response to the remaining portions of his request and planned to respond by
December 3 , 2 0 2 1 .

3) On December 15, 2021, Mr. McNicholas submitted a Request for Review to

the Public Access Bureau stating that the Department did not respond to the second and third
portions of his request.

4) On December 23, 2021, an Assistant Attorney General in the Public Access

Bureau notified the Department that it was in receipt of a Request for Review, 2021 PAC 69011,
and asked it to provide a status update on the disclosure of records to Mr. McNicholas.

5) On January 5, 2022, the Public Access Bureau received a letter from the
Department in which the Department maintained that it had properly denied a request that was
the subject of a previous Request for Review, 2020 PAC 65673; that request was identical to Mr.
McNicholas' November 8, 2021, FOIA request. The Department asserted that the records
Mr. Timothy McNicholas
Ms. Melissa Nunchuck
March 24, 2022
Page 1 6

responsive to the second and third portions of the request are exempt from disclosure pursuant to
sections 7(1)(c) and 7(1)(f) of FOIA.

6) On January 7, 2022, Mr. McNicholas submitted an updated Request for

Review in which he informed the Department and the Public Access Bureau that he remained
interested in the withheld records and maintained that he is entitled to receive them under FOIA.

7) On January 20, 2022, Mr. McNicholas provided this office with a copy of his
November 8, 2021, FOIA request, thereby completing his Request for Review. Mr. McNicholas'
Request for Review was timely filed and otherwise complies with the requirements of section
9.5(a) of FOIA (5 ILCS 140/9.5(a) (West 2020)).
8) On January 20, 2022, the Public Access Bureau sent a copy of the Request for
Review to the Department and asked it to provide for this office's confidential review copies of
the withheld records responsive to Mr. McNicholas' November 8, 2021, request. This office also
asked the Department to provide a detailed explanation of the factual and legal bases for
withholding those records.

9) On February 7, 2022, the Department furnished the requested materials to this

office by e-mail. Although the Department's written response referenced 2020 PAC 65673, the
Department's transmittal e-mail advised that it was also in response to 2021 PAC 69011.

10) On February 8, 2022, this office forwarded a copy of the Department's.

written response to Mr. McNicholas and notified him of his opportunity to reply. He did not
submit a reply.

11) On February 9, 2022, this office properly extended the time within which to
issue a binding opinion by 30 business days, to March 28, 2022, pursuant to section 9.5(f) of
FOIA. Accordingly, the Attorney General may properly issue a binding opinion with respect to
this matter.

12) Section 7(1)(c) of F OIA exempts from disclosure "[p]ersonal information

contained within public records, the disclosure of which would constitute a clearly unwarranted
invasion of personal privacy, unless the disclosure is consented to in writing by the individual
subjects of the information." Section 7(1)(c) defines "unwarranted invasion of personal privacy"
as "the disclosure of information that is highly personal or objectionable to a reasonable person
and in which the subject's right to privacy outweighs any legitimate public interest in obtaining
the information." The exemption expressly provides that "[t]he disclosure of information that
bears on the public duties of public employees and officials shall not be considered an invasion
of personal privacy."
Mr. Timothy McNicholas
Ms. Melissa Nunchuck
March 24, 2022
Page 17

13) Complaints describing alleged workplace misconduct bear directly on the

public duties of public employees. The records at issue describe alleged racism, discrimination,
or harassment by City employees while on duty. Therefore, they are not exempt from disclosure
in their entireties pursuant to section 7(1)(c) of FOIA. However, the identifying information of
complainants, witnesses, and third parties mentioned incidentally in the records may be redacted
because disclosure of that information would constitute a clearly unwarranted invasion of those
individuals' personal privacy.

14) The Department asserted that disclosure of the complainants' statements

would be objectionable to a reasonable person because they "contain discussions of intimate
interactions of a sexual or racial nature." However, the records also include more general
discussions concerning alleged harassment or discrimination in the workplace. While
complainants have a legitimate privacy interest in details that are highly personal and graphic or
salacious in nature, there is a strong public interest in information that sheds light on the
circumstances surrounding the alleged inapprOpriate conduct or behavior. Therefore, the
Department did not demonstrate by clear and convincing evidence that the complaints are
exempt in their entireties pursuant to section 7(1)(c) of FOIA. Pursuant to that exemption,
however, the Department may redact discrete portions of the statements containing details that
are graphic or salacious in nature, such as details that are sexually explicit. The Department may
also redact details concerning the complainants' family and private lives because they are highly
personal do not bear directly on the employees' public duties.

15) Section 7(1)(f) of FOIA exempts from disclosure "[p]reliminary drafts, notes,
recommendations, memoranda and other records in which opinions are expressed, or policies or
actions are formulated, except that a specific record or relevant portion of a record shall not be
exempt when the record is publicly cited and identified by the head of the public body."

16) The Department asserted that the complaints are preliminary in nature, but
they consist of factual information and precede any decision-making process in which the
Department formulated responses to the complaints. Therefore, the Department did not sustain
its burden of demonstrating by clear and convincing evidence that the records are exempt from
disclosure pursuant to section 7(1)(f) of FOIA.

Therefore, it is the opinion o f the Attorney General that the Department's response
to Mr. McNicholas' November 8, 2021, Freedom of Information Act request violated the
requirements of FOIA. Accordingly, the Department is directed to take immediate and
appropriate action to comply with this opinion by disclosing to Mr. McNicholas copies of the
responsive records, subject only to the redactions authorized above.
Mr. Timothy McNicholas
Ms. Melissa Nunchuck
March 24, 2022
Page 18

This opinion shall be considered a final decision of an administrative agency for

the purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3—101
et seq. (West 2020). An aggrieved party may obtain judicial review of the decision by filing a
complaint for administrative review with the Circuit Court of Cook County or Sangamon County
within 35 days of the date of this decision naming the Attorney General of Illinois and Mr.
Timothy McNicholas and CBS 2 Chicago News as defendants. See 5 ILCS 140/11.5 (West
2020)

Very truly yours,

KWAME RAOUL
ATTORNEY GENERAL

By: gflffz‘fl 5711/q

Brent D.- Stratton
Chief Deputy Attorney General
 CERTIFICATE QF SERVICE

Steve Silverman, Bureau Chief, Public Access Bureau, hereby certifies that he has

served a copy of the foregoing Binding Opinion (Public Access Opinion 22-005) upon:

Mr. Timothy McNicholas

CBS Chicago Reporter
CBS 2 Broadcast Center
22 West Washington Street
Chicago, Illinois 60602
tjmcnicholas@cbs.com

Ms. Melissa Nunchuck

FOIA Officer
City of Chicago —-— Department of Human ReSources
121 North LaSalle Street, Room 100
Chicago, Illinois 60602
dhrfoia@cityofchicago.org

by causing a true copy thereof to be sent electronically to the addresses as listed above and by

causing to be mailed a true COpy thereof in correctly addressed, prepaid envelopes to be

deposited in the United States mail at Chicago, Illinois on March 24, 2022.

Cw r” /
I.

STEVE SILVERMAN “‘
Bureau Chief

STEVE SILVERMAN
Bureau Chief
Public Access Bureau
Office of the Attorney General
100 West Randolph Street, 11th Floor
Chicago, Illinois 60601
(312) 814-6756