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OFFICE OF THE ATTORNEY GENERAL

STATE OF ILLINOIS

Lisa Madigan
XI- I' OIRNEY G ENE liN.

May 10, 2011

Dr. Jane Eichman

Superintendent

Rock Falls Township High School District 301

101 Twelfth Ave

Rock Falls, IL 61071.

Mr. David Giuliani

Sauk Valley Newspapers by email: dgiuliani7@n,gmail. com

RE: FOIA Request for Review 2011 PAC 12695

Dear Dr. Eichman and Mr. Giuliani:

We have completed our review of Mr. Giuliani' s Request for Review regarding

the response by the Rock Falls Township High School District 301 ( the District) to his request
for records under the Freedom of Information Act (FOIA) ( 5 ILCS 140/ 1 et seq. ( West 2009

Supp.)). On February 25, 2011, Mr. Giuliani submitted requests for the following documents,
which have been numbered for convenience:

1. The Feb. 24, 2011, resignation agreement between the Rock Falls Township
High School District and special education teacher A.J. Buser;

2. The texts, letters, emails, or other written materials that Mr. Buser sent to the

student that were deemed inappropriate by the school district; and

3. Any written investigatory reports or other factual documentation used in the case involving Mr. Buser that led to his resignation.
On February 25, 2011, the District provided Mr. Giuliani with the requested
resignation agreement. On March 3, 2011, the District denied the other parts of Mr. Giuliani' s

request, asserting that the responsive records are exempt under section 7( 1)( n) of FOIA ( 5 ILCS 140/ 7( 1)( n) ( West 2009 Supp.), as amended by Public Act 96- 1378, effective July 29, 2010),
which exempts from inspection and copying "[ r] ecords relating to a public body' s adjudication of employee grievances or disciplinary cases; however, this exemption shall not extend to the

500 South Second Street, Springfield, Illinois 62706 ( 100 West Randolph Street, Chicago, Illinois 60601 ( 1001 East Main, Carbondale, Illinois 62901 (

217) 782- 1090 312) 814- 3000 "

1" 1' V:( 877) 844- 5461

ITl:( 800) 964- 3013

Fax:( 217) 782- 7046

Fax:( 312) 814- 3806 O-

618) 529- 64( 10

rile( 877) 675- 9339

Fax:( 618) 529- 6416

Dr. Eichman and Mr. Giuliani

May 10, 2011

Page 2

final

outcome of cases

in

which

discipline

was

imposed."

5 ILCS 140/ 7( 1)( n) ( West 2009

Supp.), as amended by Public Act 96- 1378, effective July 29, 2010. Mr. Giuliani' s Request for
Review seeks our review of the partial denial of his request.
DETERMINATION

Section 7( 1)(

n)

Adjudication of an Employee Disciplinary Case

Our analysis of whether the District properly asserted the exemption in section
7( 1)( n) turns on whether an " adjudication" took place within the meaning of section 7( 1)( n). We
find that it did not.

The procedure for dismissing tenured teachers for cause is set out in section 24- 12
of the School Code ( 105 ILCS 5/ 24- 12 ( West 2008)), which provides:

If a dismissal or removal is sought for any other reason or cause [ other than reduction in number of positions], including
those under Section 10- 22. 4, the board must first approve a motion

containing specific charges by a majority vote of all its members.

Written notice of such charges shall be served upon the teacher

within 5 days of the adoption of the motion. Such notice shall

contain a bill of particulars. No hearing upon the charges is required unless the teacher within 10 days after receiving notice requests in writing of the board that a hearing be scheduled, in which case the board shall schedule a hearing on those charges before a disinterested hearing officer on a date no less than 15 nor
more than 30 days after the enactment of the motion.

In its correspondence to our office dated March 29, 2011, the District informed us

of the events leading to Mr. Buser' s resignation. After a parent alerted the Board of Education to
certain text messages from Mr. Buser to a student, the Board conducted an investigation.

Following that investigation, the Board held a closed meeting on February 24, 2011, to consider
the Superintendent' s recommendation to dismiss Mr. Buser. The District presented evidence against Mr. Buser, and Mr. Buser had an opportunity to respond. After the proceeding but before

the Board made any decision, Mr. Buser' s representative negotiated a resignation agreement with
the Board. The Board returned to open session and approved Mr. Buser' s resignation. Under these circumstances, we find that no " adjudication" took place. The Board

neither approved nor rejected a motion containing specific charges against Mr. Buser, which is the required first step in the statutory dismissal process. Because no adjudication took place, we
conclude that the District has not sustained its burden to prove that the withheld documents are
exempt under section

7( 1)(

n) of

FOIA.

Dr. Eichman and Mr. Giuliani

May 10, 2011

Page 3

Section 7. 5(

r)

School Student Records

We next address the District' s assertion that the withheld records are exempt in
their entirety
under section

7. 5(

r) of

FOIA ( 5 ILCS 140/ 7. 5(

r) (

West 2009

Supp.)),

which

exempts from inspection and copying "( i] nformation prohibited from being disclosed by the
Illinois School Student Records Act."

Section 6( a) of the Illinois School Student Records Act

105 ILCS 10/ 6( a) ( West 2009 Supp.), as amended by Public Act 97- 1000, effective July 2,
2010) prohibits disclosure of" school student records" except to the student' s parent or in other

limited circumstances not relevant here. The Act defines " school student record" as " any writing or other recorded information concerning a student and by which a student may be individually
identified . . . ." 105 ILLS 10/ 2( d) ( West 2008).

The District has explained that Rock Valley is a small community and that release of any details about the student would allow members of the community to identify that student. Based upon our review of the withheld documents, we agree that they do contain details from which the student could be identified by someone who is familiar with the people involved.
However, much of the information in these documents relates solely to the District' s investigation and to Mr. Buser' s reactions to questions and reveals nothing about the student.

The District could protect the student' s identity by redacting the student' s name and all factual details that would allow a member of the community to identify the student. For example, in the investigatory notes of the meeting with Mr. Buser on February 3, 2011, it appears that redaction of the entire first five bulleted items under the heading, " Cindi began questioning Mr. Buser * * *" would be appropriate. In the following
paragraph, the District could redact the second sentence in the second bulleted item, and the entire sixth bulleted item. However, the other items on this page could be disclosed without

identifying the student. Once all information that could be used to identify the student has been redacted, no student " may be individually identified" by these records. Therefore, redacted versions of
these records are not" school student records," and the Act does not prohibit their disclosure. We conclude that the District has not sustained its burden to prove that these records are exempt in

their entirety under section 7. 5( r) of FOIA.

Section 7. 5( q) Personnel Records

The District also asserts that the withheld records are exempt in their entirety under section 7. 5( q) of FOIA ( 5 ILCS 140/ 7. 5( q) ( West 2009 Supp.), as amended by Public Act 96- 1378, effective July 29, 2010), which exempts from inspection and copying " information prohibited from being disclosed by the Personnel Records Review Act." In its March 29, 2011
correspondence, the District notes that while the Personnel Record Review Act ( 820 ILCS

40/ 0. 01 et seq. ( West 2008)) allows employees to inspect their own records, it does not allow
employees to view " information of a personal nature about a person other than the employee if
disclosure
of

the

information

would

constitute

clearly

unwarranted

invasion

of

the

other

Dr. Eichman and Mr. Giuliani

May 10, 2011,

Page 4

820 ILCS 40/ 10( d) ( West 2008). As discussed above, the District may redact the student' s name and all factual details that could identify the student. With this information redacted, disclosure of these records would not constitute a clearly unwarranted invasion of the student' s privacy, and therefore this provision of the Personnel Records Review Act would not
person' s

privacy."

apply.

The Personnel Records Review Act prohibits disclosure of only the following:
disciplinary reports, letters of reprimand, or other records of disciplinary action which are more
than 4
years old."

See 820 ILCS 40/ 8 ( West 2008). The records at issue are not more than four

years old.

Accordingly, the Act does not prohibit their disclosure.

For these reasons, we

conclude that the District has not sustained its burden to prove that these records are exempt in

their entirety under section 7. 5( q) of FOIA.

Section 7( 1)(
c)

Clearly Unwarranted Invasion of Personal Privacy

Finally, we address the District' s assertion that the records are exempt in their entirety under section 7( 1)( c) of FOIA (5 ILCS 140/ 7( 1)( c) ( West 2009 Supp.), as amended by
Public Act 96- 1378, effective July 29, 2010). Section 7( 1)( c) exempts from inspection and

copying "[ 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." The exemption 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." 5 ILCS 140/ 7( 1)( c)
West 2009 Supp.), as amended by Public Act 96- 1378, effective July 29, 2010.

When a public body intends to deny access to information under section 7( 1)( c), it
first notify this office. 5 ILCS 140/ 9. 5( b) ( West 2009 Supp.). The first time the District asserted that section 7( 1)( c) applied to these records was in its March 29 correspondence, and the
must

District acknowledged in that correspondence that public bodies may assert the exemption in section 7( 1)( c) only after notice to the Public Access Counselor under section 9. 5( b). We take the District' s March 29, 2011 correspondence to be that notice, and we deny the District' s request to withhold all of the records in their entirety under section 7( 1)( c).
The District has made clear that its concern is for the privacy of the student who received inappropriate text messages from Mr. Buser, not for Mr. Buser' s privacy. We agree that release of the student' s identity in connection with this matter would constitute a clearly unwarranted invasion of personal privacy. However, based on our review of the documents, we find that the District may protect the identity of the student by redacting information in the requested documents as discussed above. The remaining information is not highly personal, and
disclosure would not be objectionable to a reasonable person. We conclude that the District has

not sustained its burden to prove that these records are exempt in their entirety under section
7( 1)(
c).

If the District intends to

assert

the

exemption

in

section

7( 1)(

c) with respect to specific

Dr. Eichman and Mr. Giuliani

May 10, 2011

Page 5

information in these documents, the District may submit a new request for pre- authorization to this office pursuant to section 9. 5( b) of FOIA.

Additionally, we note that some of the withheld documents may be preliminary

drafts or notes that were used to formulate the District' s actions and may be exempt under section 7( 1)( f) of FOIA. ' 5 ILCS 140/ 7( 1)( f) (West 2009 Supp.), as amended by Public Act 961378, effective July 29, 2010. If the District plans to assert that any of these records are exempt

under section 7( 1)( f), it may request permission to do so pursuant to section 9. 5( b).
CONCLUSION

The District has failed to meet its burden to demonstrate that the withheld

documents are exempt in their entirety. Accordingly, the District may redact all information that could identify the student who received inappropriate text messages but must release the

remaining information to the requester. Alternately, the District may submit a request for preauthorization to deny information in these records under sections 7( 1)( c) and/ or 7( 1)( f) of FOIA.
A request for pre-authorization should specifically identify the information the District asserts is
exempt.

If

you

have

any

questions,

please

contact

me

at (

312)

814- 2086.

This

correspondence shall serve to close this matter.

Very truly yours

SARAH KAPLAN

Assistant Attorney General

Public Access Bureau
Cynthia DeCola Hodges Loizzi Eisenhammer Rodick & Kohn LLP

cc:

3030 Salt Creek Lane, Suite 202 Arlington Heights, IL 60005

12695

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