OFFICE OF THE ATTORNEY GENERAL STA TE OF ILLINOIS

Lisa Madigan ATTORNEY GENERAL

December 15, 2015

Via electronic mail Mr. Maxwell Wang 1404 Nelson Boulevard Rockford, lll inois 61104 [email protected] Via electronic mail Mr. Thomas J. Lester Hinshaw & Culbertson LLP 100 Park Avenue P.O. Box 1389 Rockford, Iliinois 61105 [email protected]

RE:

FOIA Requests for Review - 2015 PAC 36325 & 36326

Dear Mr. Wang and Mr. Lester: · This determination is issued pursuant to section 9.5(f) of the Freedom of Information Act (FOIA) (5 ILCS 140/9.5(t) (West 2014)). For the reasons discussed below, this office concludes that Rockford Public Schools District 205 (District) improperly responded to Mr. Maxwell Wang's June 25, 2015, FOIA request. '

On the above date, Mr. Wang submitted a FOlA request to the District seeking"[t]ime stamps and content of any and all correspondence between Atty. Thomas Bueschel's and RPS205 regarding any potential conflicts of interest between Superintendent Ehren Jarrett and Stenstrom bidding. These include but are not limited to phone calls, emails, and legal opinions." 1 Mr. Wang also requested "[t]ime stamps and content of any and all correspondence from Board Member Tim Rollins and anyone else regarding Stenstrom conflicts ofinterest." 2 On June 30, 2015, the District responded by identifying the dates, the senders and the recipients of the responsive e-mails, but withheld those e-mails citing section 7(l)(m) of 'E-mail from Maxwell Wang to Rockford Public Schools District 205 (June 25, 2015). 2

E-mail from Maxwell Wang to Rockford Public Schools District 205 (June 25, 2015).

500 South Second Street. Springfield, Illinois 62706 • (217) 782-1090 • TTY: (217) 785 -2771 • Fax: (217) 782-7046 100 West Randolph Street, Chicago, Illinois, 60601 • (312) 814-3000 • TTY: (312) 814-3374 • Fax: (312) 814-3806 1001 East Main. Carbondale, Illinois 62901 • (618) 529-6400 • TTY: (618) 529-6403 • Fax: (618) 529-6416

Mr. Maxwell Wang Mr. Thomas J. Lester December 15, 2015 Page 2

FOIA (5 ILCS 140/7(l)(m) (West 2014)), which exempts from disclosure certain communications between a public body and an attorney. On July 15, 2015, Mr. Wang filed these Requests for Review. 3 He contended that the District had not provided a detailed description of the basis for assertion of section 7(1 )(m). In addition, he asserted that statements by District Board member Tim Rollins or District attorney Lori Hoadley about a potential conflict of interest between the District superintendent and the contractor at issue, Stenstrom Companies Limited (Stenstrom), waived the attorneyclient privilege. On July 20, 2015, this office forwarded copies of the Requests for Review to the District and asked it to provide a detailed explanation of the asserted exemptions along with a copy of the records for our confidential review. On July 28, 2015, the District provided a written response, but declined to provide this office with the un-redacted copies of the responsive emails on the 'ground that providing copies to our office could waive the attorney-client privilege; instead, the J?istrict produced copies of the e-mails with the substantive content redacted. · On August 6, 2015, Mr. Wang replied that the District had not met its burden of demonstrating that the records were exempt because it had not provided a detailed description of how section 7(l)(m) applied. After a September 23, 2015, telephone conversation with an Assistant Attorney General in the Public Access Bureau in which counsel for the District again declined to provide copies of the withheld responsive records to our office, the District produced a privilege log purporting to describe the general subject matter of each responsive e-mail. DETERMINATION

, "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 2014). Section 1.2 ofFOIA provides that "[a]ll records in the custody or possession of a public body are presumed to be open to inspection or copying. Any public body that asserts that a record is exempt from disclosure has the burden of proving by clear and convincing evidence that it is exempt." 5 ILCS 140/1 .2 (West 2014). "Each 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." 5 ILCS 140/3(a) (West 2014). Section 9.5(c) ofFOIA

As an initial matter, the office rejects the contention that the District would waive the attorney-client privilege by disclosing the records in question to the Public Access Bureau for our confidential review. 3

This office initially docketed separate Requests for Review for each portion of Mr. Wang's June 25, 2015, FOIA request. However, we have consolidated files 2015 PAC 36325 & 36326 for consideration and determination.

Mr. Maxwell Wang Mr. Thomas· J. Lester December 15, 2015 Page 3

Illinois courts have defined "waiver" as the "voluntary relinquishment of a known right, claim or privilege[.]" Vaughn v. Speaker, 126 Ill. 2d 150, 161 (1998). A "voluntary disclosure by the holder of the attorney-client privilege is inconsistent with the attorney-client confidential relationship and thus waives the privilege." Powers v. Chicago Transit Auth.. 890 F.2d 1355, 1359 (7th Cir. 1989). However, a party "does not waive the attorney-client privilege for documents which he is compelled to produce." Transamerica Computer v. International Business Machines. 573 F.2d 646, 651 (9th Cir. 1978). Thus, submitting documents for in camera review to a judge does not waive the attorney-client privilege (Picard Chemical Inc. Profit Sharing Plan v. Perrigo Co., 951 F. Supp. 679,688 (W.D. Mich. 1996) (citing United States v. Zolin, 49 l U.S. 554, 568-69 (1989)), nor does submitting information to a regulatory agency destroy attorney-client confidentiality. See In re Grand Jury Subpoena Dated July I 3. 1979, 478 F.. Supp. 368, 372-73 (E.D. Wis. 1979) (release of privileged report to the Securities and Exchange Commission, the Internal Revenue Service, and grand jury did not waive attorneyclient privilege). In general, "use of the word 'shall' in a statutory provision indicates that the (General Assembly] intended a mandatory, rather than a directory, provision." Fehrenbacher v. Mercer County, 2012 IL App (3d), ,Jl5, 968 N.E.2d 737,740 (2012). Section 9.5(c) ofFOIA (5 ILCS l40/9.5(c) (West 2014)) expressly and unambiguously provides that each public body "shall provide copies of records requested and shall otherwise fully cooperate with the Public Access Counselor." (Emphasis added.) Because section 9.5(c) does not afford the District the discretion to disregard its statutory obligation to fully cooperate with this inquiry, 4 the case law described above establishes that the District would not waive its attorney-client privilege by furnishing the records in question to the Public Access Counselor. The General Assembly clearly recognized that the Public Access Counselor must have access to all pertinent records in order to conduct a complete review of a public body's compliance with FOIA. The following colloquy between Representative Elaine Nekritz and Representative Michael Madigan, the House sponsor of the bill, during the House debate on Senate Bill 189 (which, as Public Act 96-542, effective January I, 2010, created the Office of the Public Access Counselor), evinces the General Assembly's intention to vest the Public Access Counselor with complete authority to conduct confidential reviews of records: Nekritz: Thank you Mr. Speaker. I just have some questions * * * to clarify the legislative intent under this. * * * It's my understanding that under this Bill, an agency's required to provide records requested by the public access counselor. What if some other State or Federal Law precludes disclosure of those 'Likewise, the Illinois Rules of Professional Conduct recognize that an attorney may disclose information relating to the representation ofa client "to comply with other law or a court order." Ill. Sup. Ct. R. Prof! Conduct 1.6(b)(6) (effective January I, 2010); see also Comment [12] to 111. Sup. Ct. R. Prof! Conduct 1.6 ("Other law may require that a lawyer disclose information about a client. * * * If, l,owever, tlze other law super.,edes this Rule and requires disclosure, paragraph (b)(6) permits the lawyer to make such disclosures as are necessary to c~mply with the law.") (Emphasis added.)

Mr. Maxwell Wang Mr. Thomas J. Lester December 15, 2015 Page 4

records to some other party like HIP AA, an IO report or something like that? How does that * * * get resolved? Madigan: Point number one, the Attorney General will review those documents in confidence. They would be kept confidential. Point number two, if it were a Federal Law in conflict, why, the Federal Law would control. Nekritz: [A]nd if some investigating authority such as the U.S. Attorney asked to have that certain records not be disclosed * * * what would be the result there? Madigan: * * * [T]he Office of the U.S. Attorney could interact with the Office of the Attorney General, make a request, but thefinaljudgment ... thefinal decision would be made by the Attorney General. (Emphasis added.) Remarks of Rep. Nekritz and Rep. Madigan, May 27, 2009, House Debate on Senate Bill No. 189, at l 05. If the General Assembly had considered it necessary to exempt records asserted to fall under section 7(1 )(m) of FOIA from review by the Public Access Counselor, the General Assembly would have done so expressly. It did not. The District's refusal to provide copies of the records in question undermines the Public Access Counselor's duty to conduct the type of comprehensi,ve review that the General Assembly deemed to be crucial when it enacted Public Act 96-542. This refusal violated section 9.5(c) ofFOIA. Ill. Att'y Gen. Pub. Acc. Op. No. 12007, issued April 2, 2012, at 7. Section 7(l)(m) ofFOIA Despite the District's refusal to provide un-redacted copies of the records in question for our confidential review, we will analyze the assertion of section 7(l)(m) based on the available information. Section 7(l)(m) permits a public body to withhold: Communications between a public body and an attorney or auditor 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, and materials prepared or compiled with respect to internal audits of public bodies. Therefore, section 7(l)(m) exempts from disclosure communications covered by the attorneyclient privilege. The attorney-client privilege applies to communications:

Mr. Maxwell Wang Mr. Thomas.J. Lester December 15, 2015 Page 5

1

(I) 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. Illinois Education Association v. Illinois State Board of Education, 204 Ill. 2d 456, 467 (2003).

See also In re General Instrument Corp. Securities Litigation, 190 F.R.D. 527, 531 (N.D. Ill., 2000) (quoting U.S. v. Evans, 113 F.3d 1457, 1461 (7th Cir. 1997) ("To be privileged, the documents must not only exhibit attorney involvement, but must involve 'a legal adviser acting in his capacity as such."')) This privilege is a "two-way street" protecting not only communications from the client to the attorney, but also from the attorney to the client. People v. Radojcic, 2013 IL 114197, ,r40, 998 N.E.2d 1212, 1221 (2013). The section 7(1)(m) exemption rriust be narrowly construed to promote transparency "notwithstanding the countervailing policy favoring confidentiality between attorneys and clients." Illinois Education Association, 204 Ill. 2d at 470. A public body that withholds records under section 7(1)(m) must provide a supporting factual basis for the application of the exemption, including "some objective ind,icia that the exemption is applicable under the circumstances." (Emphasis in original.) Illinois Education Association, 204 Ill. 2d at 470. "The basic, well-settled rule is that when a client discloses to a third-party a privileged communication, that particular communication is no longer privileged and is discoverable'or admissible in litigation." Center Partners. Ltd. v. Growth Head GP, LLC, 2012 IL 113107, '1135, 981 N.E.2d 345,356 (2012). However, an "exception to this general rule is that mere restatements of an attorney's conclusion do not disclose a particular attorney-client communication and therefore does not constitute a waiver." Zenith Elecs. Corp. v. ExZec. Inc., No. 96 C 5041, 1997 WL 798908, at *4 (N.D. Ill. Dec. 24, 1997). See also U.S. v. O'Malley, 786 F.2d 786, 794 (7th Cir. 1986) ("In other words, a client does not waive his attorney-client privilege merely by disclosing a subject which he had discussed with his attorney. In order to waive the privilege, the client must disclose the communication with the attorney itself"). Disclosure of legal advice does not constitute a waiver unless the disclosure reveals "the actual content and basis for the legal advice." Center Partners, 2012 IL 113107, '1173, 981 N.E.2d at 368. Mr. Wang contended in his Requests for Review that two statements by District officials waived any attorney-client privilege attaching to the withheld communications. In his Rock River Times guest column, Mr. Rollins responded to a prior guest column implying impropriety in awarding contracts, and stated, "Prior to awarding any contracts to Stenstrom, we obtained an opinion both from internal and external legal counsel that there was no conflict of

Mr. Maxwell Wang Mr. Thomas J. Lester December 15, 2015 Page 6

interest that would preclude Stenstrom from bidding on projects for the school district. "5 During the July 9, 2013, District Board meeting, Ms. Hoadley was asked by District Board member Ms. Lori Jackson whether there was a conflict of interest between Stenstrom bidding on contracts and Superintendent Jarrett. Ms. Hoadley stated: I also asked for an outside third party opinion on this as well just because of the sensitive nature of it. But, and there was an extensive look at what interests is involved. I think you're asking about a conflict of interest with Dr. Jarrett. I'll lay it out on the table there. But, we did look at a significant number of facts and details surrounding any relationship. Dr. Jarrett does not serve on the board; he has no interest in it. He does not even swing a hammer in the summer. You know, and from what he's told me, he doesn't do well at home doing that either so. But, in any case, we looked at is there any kind of interest he has personally in it. Under Illinois law, a spouse's income is not the other spouse's income, so that's not tied together under Illinois law. So the answer is no, there is no conflict. 6 While the statement by Mr. Rollins merely describes the conclusion of legal counsel, these statements by Ms. Hoadley reveal not only that legal conclusion, but also several facts that counsel apparently used as the basis for its conclusion. As such, Ms. Hoadley's statements at the July 9, 2013, District Board meeting waived the attorney client-privilege to the communications from which these facts and conclusion derived. Center Partners, 2012 IL I 13107, iJ73, 981 N.E.2d at 368. 7 In addition, this office has also carefully reviewed the District's response, redacted e-mails, and privilege log. Two redacted e-mail messages provided by the District for our review, dated April 8, 2013, and July JO, 2013, respectively, appear to be sent to parties other than District'officials or District counsel. Indeed, in the District's initial FOIA response to Mr. Wang, the April 8, 2013, e-mail is described as being "from Ehren Jarrett, Superintendent to 5

Tim Rollins, quest Column: My Response to Jayne Hayes' latest' Innuendo' About the School District, ROCK RIVER TIMES (Mar. 19, 2014), http://rockrivertimes.com/2014/03/19/guest-column-my-response-toj ane-h ayes-latest -innuendo-about-the-sch oo 1-d istrict/. 6

RPS205BoardMeetings, July 9, 2013 School Board Meeting, YOUTUBE (July 10, 2015), https://www.youtube.com/watch?v-FOXWqsN _ XNc (from video time stamp I: 12:00-1: 14:00). This statement is also paraphrased within the minutes for this meeting. 7

The Illinois Supreme Court has held extrajudicial disclosures, such as the statements by Ms. Hoadley, do not constitute a subject matter waiver. Center Partners, 2012 IL I 13107, 111157-60, 981 N.E.2d at 36264. Therefore, the scope of the waiver is limited to the attorney-client communications from which her statements derived.

Mr. Maxwell Wang Mr. Thomas J. Lester December 15, 2015 Page 7

Christie Jarrett (forwarding emails from April 8, 2013 from Attorney Tom Bueschel and Lori Hoadley seeking information regarding corporate ownership). "8 Neither of these messages is included in the District's privilege log provided to this office, so we have no additional information about their content other than the e-mails' subject lines. In any event, the privilege log provided to our office merely lists the date and time of each e-mail together with a single sentence identifying the senders, recipients, and topics to which e-mail relates. Such vague and limited descriptions do not demonstrate that the records in question are, in fact, privileged. Novelty, Inc. v. Mountain View Marketing, Inc., 265 F.R.D. 370, 380 (S.D. Ind. 2009) (finding a privilege log insufficient because it contained only "blanket assertions of privilege, devoid of the factual basis necessary to properly establish entitlement to some evidentiary privilege.") · Without the benefit of the substantive contents of the responsive records for our confidential ,review, this office is unable to determine the extent to which they consist. of legal advice and information that may no longer be privileged, especially in light of the communications that appear to waive the attorney-client privilege for at least some part of the underlying attorney-client communications and opinions. Accordingly, we conclude that the District has not met its burden of demonstrating that the responsive e-mails are exempt from disclosure under section 7(l)(m). The Public Access Counselor's authority is limited to resolving disputes concerning FOlA and the Open Meetings Act (OMA) (5 ILCS 120/1 et seq. (West 2014)). 15 ILCS 205/7(c) (West 2014). To the extent that these Requests for Review raise issues related to alleged conflicts of interest or other misconduct by District officials, the Public Access Bureau has no authority to review those allegations. In accordance with the conclusions set forth above, this office directs the District to provide Mr. Wang with copies of the responsive e-mail messages. The Public Access Counselor has determined that resolution of this matter does not require the issuance of a binding opinion. This letter shall serve to close this matter. If you have any questions, please contact me at [email protected] or (217) 782-9078. Very truly yours,

/,z//.

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NEIL P. OLSON Assistant Attorney General Public Access Bureau 36325 36326 f71m improper sd 'E-mail from Christina Euhus, FOlA Officer. Rockford School District #205. to Maxwell Wong (June 30, 2015).

Mr. Maxwell Wang Mr. Thomas J. Lester December 15, 2015 Page 8

cc:

Via electronic mail Ms. Christina Euhus FOIA Officer Rockford School District 205 50 l 7th Street Rockford, Illinois 61104 [email protected]