Illinois Attorney General's Office: Financial Information in Contracts Must be Disclosed Under FOIA
february 23, 2015
Over the years, we have used this space to discuss court cases interpreting contracts between public bodies and private corporations. Within the past three months, the Illinois Attorney General's Office (through its Public Access Counselor: "PAC") has also weighed in on the topic. On December 2, 2014, and January 23, 2015, the PAC issued binding opinions after being asked to determine if two public bodies had violated the Freedom of Information Act ("FOIA") by denying requests for, among other things, various types of contracts it had negotiated with private entities.
While not all of the facts in both opinions were the same, many of the reasons for the denial were. For example - the units of government claimed the requests for leases and other contracts could not be produced in their entirety because they contained information that was considered confidential and therefore, a "trade secret" under the 5 ILCS 140/7(1)(g) exemption. Other arguments presented to the PAC included: the requests were unduly burdensome (5 ILCS 140/3(g)), and contained valuable formulae (5 ILCS 140/7(1)(i)). The Public Access Counselor dismissed these arguments, using what has become its standard position on public contracts - companies that contract to perform services for or with a governmental agency "do not enjoy the same ability to withhold information that they do with respect to their private contracts." Simply put:
- Financial information contained in contracts is not a trade secret. The Illinois Constitution (art. VIII, sect. 1(c)) and Section 2.5 of FOIA require disclosure of information related to the expenditure of public funds; and
- Any argument that these contracts contain "valuable formulae" is strictly limited to "something technical in nature, similar to 'computer geographic systems' or 'research data'," and not financial "forumlae."
We continue to encourage units of governments to consult with attorneys when asked to produce contracts in response to a FOIA request. While some data must be produced, there are instances when personal information or similar content must be withheld in order to protect someone's privacy. Please contact Heyl Royster for more information.