Plainfield School District is asking for permission to deny a request for comments from an online community survey.
By U.S. Mail and Electronic Mail
May 9, 2011
Public Access Counselor
Office of the Attorney General
500 South 2nd Street
Springfield, Illinois 62706
Facsimile (217) 782-1396
Re: Intent to Deny Freedom of Information Request
Dear Public Access Counselor:
The Board of Education (the "Board") of Plainfield Community Consolidated School District 202 (the "District") intends to deny partially a request for records under the Illinois Freedom of Information Act, 5 ILCS 140/1 et seq. ("FOIA" or the "Act"). On April 25, 2011, the District received a FOIA request, dated that same date, from Catherine Ann Velasco, a reporter for The Herald-News, requesting copies of the "[e]xecutive summary and data from the community survey." On May 2, 2011, I partially responded to the request, enclosing a copy of the Executive Summary of the 2011 Community Survey conducted by the District, which I understood to be responsive to the request for the "[e]xecutive summary." In that same communication, I extended until May 9, 2011, the time to respond to the remaining request for "data from the community survey." 5 ILCS 140/3(e).
Enclosed with this letter is a copy of a record including all data from the community survey other than the comments provided in response to the survey. The District's Superintendent, Dr. John Harper, provided copies to members of the public of and cited to all data other than the comments in strategic planning sessions held this week, which I understand to constitute a public citation by Dr. Harper, the head of the public body, to that data. See 5 ILCS 140/7(1)(f). However, the comments provided in response to the survey were not cited or provided to the public by Dr. Harper. Accordingly, the comments constitute predecisional material exempt from disclosure under Section 7(1)(f) of the Act, 5 ILCS 140/7(1)(f), and the District intends to partially deny the request for "data from the community survey" to the extent the request seeks copies of those comments. Below, the District sets forth a detailed summary of its basis for asserting the exemptions based on Section 7(1)(f), which also constitutes its proposed response to the FOIA requester.
The comments in the survey responses are exempt from disclosure under the preliminary draft exemption, 5 ILCS 140/7(1)(f), because the survey is a predecisional document in which opinions are expressed or policies or actions are formulated, and the comments portion of the survey has never been publicly cited or identified by the head of the public body. Section 7(1)(f) of the Freedom of Information Act allows withholding of:
[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.
First, the document is a "preliminary" record in which opinions are expressed. Although the comments section of the survey, once completed by the survey-respondents, are arguably "final" documents, the Illinois Appellate Court made clear in Harwood v. McDonough, 344 Ill. App. 3d 242, 244 (1st Dist. 2003), that the word "preliminary" in section 7(1)(f) does not refer to the "posture of the particular document sought to be disclosed" but rather to "predecisional intra-agency communications." Id. at 247-248. A document that is relied upon by a public body in formulating an ultimate, final decision, even if the "final" product of a third party, is nonetheless a "preliminary" document "in relationship to the eventual 'final' decision" made by the public body. Id. at 248.
A number of Illinois Attorney General letters in response to notices of intent to deny make clear that responses to public school surveys are preliminary documents under Section 7(1)(f). In 2010 PAC 9676, for example, a requester sought, among other documents, a climate report prepared by an outside consultant to explore the climate at certain high schools in a school district. The report was drafted for use by the administration and board of education of the school district in making decisions regarding the operations of the District's high schools. The school district also indicated that the climate report had never been cited publicly by the head of the public body. The PAC approved the use of the 7(1)(f) exemption. And in 2010 PAC 9970, a requester sought survey results in which parents of student-athletes rated a school district's tennis program and tennis coaches for three seasons. The reports sought by the requester compiled survey answers and comments, much like a community survey does. The PAC noted that the responses to the surveys included many recommendations and strong opinions from the survey responders. The school district also indicated that the survey was intended to provide school officials with feedback to consider in making future decisions about the tennis program. Finally, the school district asserted that the documents had never been publicly cited by the head of the school district. The PAC held that the school district could deny the request under 7(1)(f).
Other Attorney General letters in response to notice of intent to deny bolster this conclusion, by recognizing that other records similar to community surveys are also exempt from disclosure. In 2010 PAC 6749, for instance, the PAC approved a school district's use of the predecisional materials exemption with regard to, among other documents, an "IASB Superintendent Search Report to the Board [of Education] from the IASB." The document was "created to aid in developing search criteria and as a resource for the Board's preparation for interviews with finalists" for a superintendent position at a school district. The PAC determined that this document was being used by the District as part of its deliberative process in relation to the selection of a new superintendent, and thus was protected from disclosure by the predecisional materials exemption. School surveys such as the community survey at issue here also seek information from community members in an effort to deliberate on various issues, and thus should implicate the exemption. In another response letter, 2010 PAC 6803, the PAC approved use of the predecisional materials exemption for a score sheet used by the University of Illinois to make bid determinations. The PAC noted that the score sheet is a tool used to numerically evaluate proposals in an effort to formulate a final action. Similarly, the PAC found that preliminary scoring documents used as part of the Illinois Environmental Protection Agency's environmental compliance process were exempt predecisional materials. 2010 PAC 6510. Under these precedents, a survey that collects data of any sort that would be used to make determinations about public body action should be protected from disclosure.
Here, the community survey specifically was created to be used as part of the District's deliberative process in relation to the school climate. The survey results--especially the comments section--contain recommendations and opinions of survey recipients for the express purpose of giving input to the Board as part of its deliberative process. The survey results also provide data that is used to evaluate options available to the District for final action.
Second, the comments provided in response to the survey have never been cited by the Superintendent--the head of the public body, and it is inconsequential that some other portions of or the executive summary of the survey have been cited. Section 7(1)(f) specifically provides that the exemption can be waived by public citation to either "a specific record" or a "relevant portion of a record." 5 ILCS 140/7(1)(f). The Harwood decision also makes clear that citing to some portion of a predecisional document does not make the whole document subject to production. In Harwood, the court addressed the applicability of the predecisional materials exemption to a report concerning the relocation of Boeing's headquarters to Illinois. The report was prepared for the public body by a consulting firm. The FOIA requester argued that Governor Ryan had publicly cited the report, when he cited data that came from the report. The alleged citations included data that was included in an "executive summary" of the survey results and charts that were distributed to the public and that contained information that was not listed in the executive summary. The court noted, however, that the report itself had never been cited. Instead, the Governor had cited only the executive summary of the report, "a document that was prepared specifically for public release and that was provided to [the FOIA requester]." The charts that were distributed similarly "recapitulated all of the information contained in the executive summary and did not cite the complete, full . . . study itself." The court thus held that the report was exempt from disclosure under the predecisional materials exemption, recognizing that citation to some part of certain materials does not lead to waiver of the exemption for all related materials.
Here, although the superintendent has provided copies of an executive summary of the surveys to the public, the executive summary is a document that was prepared specifically for public release and is exempt under the precedent of Harwood. Similarly, although the superintendent has provided copies of some of the data from the survey results, the Superintendent has never cited to the complete, full survey results themselves and especially has never cited to the comments section of the survey. The District has provided the FOIA requester copies of the executive summary and the data other than the comments from the survey results, but is not required to provide the comments section. Harwood v. McDonough, 344 Ill. App. 3d 242 (1st Dist. 2003). The survey results are thus exempt from disclosure under the predecisional materials exemption.
Because the comments section of the data requested is preliminary material that has not been publicly cited by the head of the public body, the District asks the PAC to approve the use of the 7(1)(f) exemption for the comments portion of the survey data from the 2011 Community Survey. If the PAC determines that section 7(1)(f) does not apply to the records, the District retains the right to deny the request based on any other exemptions that may apply.
As required by Section 9.5(b) of the Act, 5 ILCS 140/9.5(b), enclosed is a copy of the original request for records, the extension letters described above, and a completed "Form For Pre-Approval of Use of Exemption 7(1)(c) or 7(1)(f)." Also enclosed is a copy of the letter to the requester for your records. I understand times for response or compliance by the District under the Act are tolled until the PAC renders a decision. 5 ILCS 140/9.5(b).
Director of Community Relations and FOIA Officer
Plainfield CCSD 202