Attorney General reversal

OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS November 17, 2010 Lisa Madigan I imoizsev session, Mr. Thomas Hardy Executive Director, University Relations University of Wright Street Urbana, Illinois 61801 Re: FOIA Request for Review 2010 PAC 8971, 9114 Dear Mr. HardyThe Office of tl1cfPublic Access Counselor (Office) has reviewed the Request for Reviews submitted by the Champaign News-Gazette, Chicago Tribune, and and and the responsive documents submitted by the University of Illinois (University) on August 31, 2010. . Findings of Fact . On April 27, 2010, Julie Wurth, Staff Reporter, Champaign News--Gazette (News Gazette) submitted a Freedom of Infomation Act (FOIA) request seeking the following information: . .copies of all payments or reimbursements, and supporting documentation, to members of the University of Illinois presidential search committee, Michael Baer and/or staff for Isaacson, Miller, This request includes but is not limited to, vouchers, itineraries and receipts, and covers the period from Oct. 1 to the present." On May 14, 2010, Jodie Cohen, Staff Reporter, Chicago Tribune (T ribune), submitted a FOIA request seeking the following information: ",.All documentation, from October 1, 2009 to the present, showing expenditure funds related to University of 1llinois' presidential search. This could include, but not be limited to, copies of all payments or reimbursements, along with supporting documentation, to members of the search committee or the search firm. lt also could include direct payments from the university to vendors for such items as airfare, entertaimrient or other expenses? 500 South Second Street, Springtie|d,ll1lnols 62706 (217) 782-1090 TTY: (217) 78S -2771 Fax: (217) 782-7046 100 West Rnndolph Street, Chicago, 60601 (312) $14-3000 TTY: (312) 814-3374 Fax: (312) mm Em Mm., rinma 62901 nina; mason ms; rm (nai is Mr. Thomas Hardy The University of Illinois November 17, 2010 Page 2 On May 25, 2010, Patrick Phingsten, News Anchor, and submitted a FOIA request to the University and requested the following information: 1. All applicants and/or applications received during recently the concluded search for . the position of University of Illinois President (October l, 2009 to May 20, 2010); and 2. All bills, travel expenses, vouchers, itineraries provided to the University by applicants, search committee members, or search firm Issacson-Miller (October I, 2009 to the present). The request also applies to airfare, hotel or other travel-related expenses. Because all three FOIA requests seek similar sets of records, we are addressing them as one consolidated Request for Review herein.! The University submitted a Pre-Authorization Request with this Office on June 9, 2010 and asserted that certain information is exempt from disclosure pursuant to Section (5 ILCS which exempts from inspection or copying "[p]ersonal information contained within public records, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy, unless disclosure is consented to in writing by the individual subjects of the information Id The exemption defines "[u]nwarranted invasion of personal privacy" as "the disclosure of infomation 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 inforrnation." ld Specifically, the University stated the following information was exempt pursuant to Section 1. Names and personal identifiers of job applicants; 2. Infomation such as the name of an applicant that is currently employed by the University, the address of an on-campus travcl agency that used to arrange airfare, and the airport of departure when it is small enough to clearly point to a specific candidate; and 3. The names of private citizens who work for trustees in a non-University capacity. This Office responded to the University's Pre--Authorization Request on August 2, 2010, granting in part and denying in part the University's request to withhold information pursuant to Section In the letter, this Office concluded the following: The University has met its burden to justify redacting the names and applications of all non-hired applicants for the position of University president. The University has not met its burden to justify redacting name and application of the selected applicant, Michael J. Hogan.2 The University also seeks to redact the name of a student contained in document pursuant to the Family Educational Rights and Privacy Act, 20 U.S.C. 1232g; 34 CFR Part 99. In October 28, 2010 conversations with both Brendan Healey and Traci Nally, both parties have continued that they are not seeking this information. I Mr. Thomas Hardy The University of Illinois November l7, 20l0 Page 3 Home telephone numbers, personal cell phone numbers and home addresses of applicants do not properly fall within the Section exemption, and we decline to make a determination as to whether the University may redact this information pursuant to Section Work telephone numbers and addresses ofthe non~hired applicants, however, do fall within the Section exemption and the University has met its burden to justify redacting this infomation pursuant to this Section of FOIA. The University has rnet its burden to justify redacting (1) the name of the University at which any of the applicants is currently employed; (2) the address of i on-campus travel agencies used to arrange airfare related to the University's presidential search; or (3) any of the airports of departure related to the University's presidential search and (4) the names of private citizens who work i for trustees in a non-Uni versity capacity. . In the Pre-Authorization letter, this Office declined to address any matters relating to Section (5 ILCS which exempts from inspection and copying "Trade secrets and commercial or financial infomation obtained from a person or business where the trade secrets or commercial or financial infomation are furnished under a claim that they are proprietary, privileged or confidential, and that disclosure of the trade secrets or commercial or financial information would cause competitive harm to the person or business, and only insofar as the claim direcdy applies to the records requested . . On August 5, 2010, the Tribune, News-Gazette, and received ri partial denial letter from the University indicating that it disagreed with this Office's findings in 2010 PAC 7336, 7704 and 7852 and asserting that the University had met its burden pursuant to Section with respect to withholding: (1) the name of the University at which any of the applicants are currently employed; (2) the address of on-campus travel agencies used to arrange airfare related to the University's presidential search; and (3) any of the airports of departure related to the University's presidential search, The University also asserted that information relating to the University's procurement of the Boston?based recruitment firm Isaacson, Miller to assist the University with the Presidential search is exempt from disclosure pursuant to Section On August 5, 2010, the University provided the Tribune, News-Gazette, WD and with approximately 1,000 pages of documents from October 2009 through July 2010 that related to the University's search for the new President. Included in these documents were the names of private citizens who worked for the trustees in a non-University capacity. On October 8, 2010, the University sent a letter to WD indicating that it would be providing Mr. Phingsten with copies of all application information relating to Dr. Hogan. 2 This is only pertinent to the rcquest filed by and Mr. Thomas Hardy The University of Illinois November 17, 2010 Page 4 This received a Request for Review from the News-Gazette, and on August 9, 2010 and from the Tribune on August 16, 2010. This Office initiated further review with regard to the News-Gazette, and on August 18, 2010 and . with regard to the Tribune on August l9, 2010. On August 31, 2010, the University responded to our further inquiry letter and renewed its initial argument as to the disclosure of the infomation it previously denied pursuant to Section and addressed the Isaacson, Miller documents pursuant to Section Additionally, the University supplemented its response with 11 affidavits from employees from the University and other academic institutions,] four affidavits irom individuals with regard to the infomation relating to Isaacson, Miller,4 media clippings,5 a copy of N0. 2010 PAC 6805, a previously- issued Pre--Auth01?ization letter from this Office and a copy of the further review letter for N0. 2010 PAC 7336. On September 20, 2010 and September 28, 2010, this Otiice sent a 21 -day extension letter to the I University pursuant to Section On September 29, 2010, Traci Nally, Senior Counsel, News-Gazette. and responded to the University's letter. On October 8, 2010, Don Craven, on behalf of the Tribune, submitted a response letter to the University's letter. 4 Determinations Section 3(a) of FOIA (5 1LCS provides that "[e]ach public body shall make available to any person for inspection or copying all public records, except as otherwise provided in Section 7 of this Act." Under Section 1.2 of FOIA (5 ILCS 140/ .25, "[a]ll records in the custody of a public body are presumed to be open to inspection and copying? This section further states that "[a]ny public body that asserts that zi record is exempt from disclosure has the burden of proving by clear and convincing evidence that it is exempt? (Emphasis added,) 3 With regard to information relating to the applicants, the University provided this Office with akidsvits from the following individuals: Alvin Bowman, President, Illinois State University; A1 Goldfarb, President, Western Illinois University; Sharon Hahs, President, Northeastern Illinois University; Michael I . Hogan, President, University of Illinois; Stanley lkenberry, Former President, University of Illinois; Elaine Mairnon, President, Governors State 1 University; William Perry, President, Fastern Illinois University; John G. Peters, President, Northem Illinois University; Dr. Glenn Poshard, President, Southern Illinois University; Michele M. Thompson, Secretary, Board of Trustees, University of Illinois; Wayne Watson, President, Chicago State University. In addition to his aflidavit, former President Stanley Ikenbetry submitted the following five media clippings: of Maryland Narrows Field for President to Washington Post, February 15, 1978; "4 Recommended for Presidency uf Maryland University," February 18, 1978, MD Offers Presidency tc on List; 4 Declined, Washington Post, March 22, 1978; Md. Presidency Offered to Head of N.Y. University," unknown date. With regard to information relating to the search firms, the University provided this Office with affidavits from the following individuals: Michael Baer, Isaacson, Miller, Jerry H. Baker, Baker and Associates; Kenneth Kring, Korn/Ferry International; Richard D. Legcn, President, Association of Governing Boards ofUniversit.es and Coll cs. 5 Artigles from the August 8, 2010 edition of The Chronicle oflligher Education include: "'l`oo Much Sunshine Can Complicate Presidential Searcl1es," "How a Public Search Cost a Provost Her Job," and Presidential Search at Florida Atlantic: One Candidates Experiencc." Mr. Thomas Hardy The University cf Illinois November l7, 2010 Page 5 information relating to the Unsuccessful Applicants ln its response letter, the University asserts that disclosure of: (1) the name of the cummt employer at which any of the unsuccessful applicants are currently employed; (2) the address of 0??campus travel agencies used to arrange airfare related to the University's 1 Presidential search; or (3) any of the airports of departure related to the University's presidential search could lead to the disclosure of the identities of the unsuccessful applicants. With respect to the disclosure of the identities of unsuccessful applicants for the Presidency position, this Office made the following determination in 2010 PAC 6805, a Pre--Auth0rizati<m Request involving a FOIA request submitted to the University by for the same infonnaticn. In that letter, we noted the following: Applications for employment generally contain information that is personal in nature and the release of which would be objectionable to the reasonable person Further, in many cases, the fact that an individual is seeldng new employment for a position is infomation that a reasonable person would view as highly personal and the release of that infomiaticn is likely to be viewed as objectionable by most individuals. Publication of an individual's application for a position can negatively impact that individua1?s current employment and the release of personal information about applicants may also negatively impact a public body's ability to attract qualified applicants for open positions. Accordingly, as a result of our review, we have determined that the University may properly decline to disclose under Section the names of applicants for the position of University President and the applications submitted by those individuals. This Office renewed these findings in No. 2010 PAC 7336, 7704 and 7852 in support of our determination that disclosure of the names cf the unsuccessful applicants would amount to an invasion of privacy pursuant to Section The University relies on the affidavits, media clippings and previous determination letters from this Ofiice to support its argument that incidental information related to the University's search for the President is also exempt from disclosure pursuant to Section Each affidavit submitted by officials from other academic institutions underlies the University's assertion that disclosure of identifying information such as the name and application of the unsuccessful applicant, the current employer of the unsuccesstiil applicant, the identity of the regional airport and the travel agency could cause harm for that specific applicant within his current place of employment and lead to the disclosure of that applicanfs identity. Mr. Thomas Hardy The Uuiversiry of Illinois November 17, 2010 Page 6 John G. Peters, President, Northern Illinois University, stated the following in his August 26, 20lO Affidavit: The harm caused by directly releasing an applicanfs name can also be caused by requiring a public body to release information, which, in context, would reveal the identities of applicants. For example such "identifying information" may consist of: An individual's title and current employer, The name of a very small regional airport near a single college or university The name of a larger airport combined with the exact travel mileage incurred and reimbuised, thereby identifying the college and university. Disclosure of this information will inevitably reveal the precise identities of applicants, which is just as harmful as directly revealing those identities. Most Land-Grant universities are located in non-metropolitan arms. The pool of high level candidates from the group is quite small and well known in the academic community. A candidate flying out of the Lincoln, Nebraska airport, for instance, would immediately be identified. I William L. Perry, President, Eastem Illinois University, stated the following in his August 25, 2010 Affidavit: The harm caused by directly releasing an applicant's name can also be caused by requiring a public body to release information which, in context, would reveal the identities of applicants. Finally, Stanley Ikenbezry, former President, University of Illinois, stated the following in his August 20, 2010 Affidavit: The harm caused by directly releasing an applicax1t's name can also be caused by requiring a public body to release information, which in context, would reveal the identities of the of this information would inevitably reveal the precise identities of applicants, which is just as harmful as directly revealing those identities. As we noted in Noi 2010 PAC 6805 and 2010 PAC 7336, 7704 and 7852, disclosure of the identities of unsuccessful applicants could adversely impact that applicant's position with their current employer. This finding, however, does not extend to`all records relating to a public body's search for a candidate. Specifically, there exists a legitimate public interest in the scope of the Univcrsity's search for a new President. Moreover, several of these records relate to the expenditure of public funds under Section 2.5 of FOIA that provides that "[a]ll records relating to the obligation, receipt, and use of public funds of the State, units of local government, and school districts are public records I subject to inspection and copying by the public." 5 ILCS 140/2.5 (Emphasis added.) Mr. Thomas Hardy The University of Illinois November I7, 20lD Page 7 . . . The Names of the Current Employers of Unsuccessful Applicants This Office renews the findings in 2010 PAC 6805, 2010 PAC 7336, 7704 and 7852 in support of our conclusion that the disclosure of the identity of the unsuccessful applicants and their applications would constitute a highly unwarranted invasion of personal privacy and those documents are therefore exempt from disclosure under Section With regard to the disclosure ofthe current employer of the unsuccessful applicant, we now find that the University has met its burden in demonstrating that the name of the current employer is exempt from disclosure pursuant to Section In the University's May ll, 20lO Pre-Authorization Request to this Office, the University did not distinguish between the disclosure of the name of the applicant, the application and the applicant's current employer. While this Office previously ruled on this matter in 2010 PAC 6805 as to the identities of the applicants and their applications, this Ofhce had not made a finding specifically directed to the disclosure of the name of the current employer of an unsuccessful applicant. ln another context, this Office has found that disclosure of an employer, absent certain circumstances, is not considered to be a` matter of personal privacy. In 20l0 PAC 7440, we noted the following with respect to the disclosure of an arrestee's employment: Simply because information can be characterized as personal does not automatically make it exempt under Section The high standard under this subsection requires that the information seeking to remain exempt is highly sensitive and objectionable to the reasonable person ln this instance, the alleged offender is likely making his place of employment known to his coworkers, friends, family and possibly other members of the public. The Department has not fumished us with any unique information about the alleged offender's employment to think that the disclosure would be highly sensitive or objectionable to the reasonable person. Similarly, the University provided no evidence in support of its Pre>>Authorization Request with regard to how disclosure of the name of the current employer in this context constitutes an unwarranted invasion of personal privacy, Instead, this argument was subsumed by the University's argument against disclosure of the identities of the applicants and the applications; Therefore, we initially concluded that the University did not meet its burden in demonstrating how disclosure of the identity ofthe current employer by itself is considered highly personal or objectionable to the reasonable person. In the August 3l letter, the University states that "only by undertaking a more fulsome fact- specific--analysis here will the PAC reach a decision that protects the privacy interests of private individuals who were involved in the University's presidential search." Mr. Thomas Hardy llie University of Illinois November 17, 20lO Page 8 Based on that letter and Univcrsity's supplemental documents, which include affidavits and media clippings, we have determined that the University has its burden that disclosure of the unsuccessful applicanfs current employer could constitute a highly unwarranted invasion of personal privacy. The letter states that final candidates for President of the University were highly qualified and experienced individuals who held senior administrative positions at other colleges and universities, such as President amd provost. The University also states that disclosure of current employer could create a negative impact on that applicanfs current employer. Because of the type uf applicants that were considered for this position and the fact that they not hired, there exists no legitimate public interest in disclosure of the employers of the applicants And unlike the finding we made in 2010 PAC 7440, the University has supplied us with specific information about how disclosure of the i unsuccessful applicmifs current employment would be highly sensitive or objectionable to the i reasonable person. Therefore, the University may withhold the current employers of the unsuccessful applicants. Regional Aiggorts, the names of the airlines, date of flight and the flight number The also seek the names of the airlines, departing airport, date of flight and flight number used by the unsuccessful applicants. The University seeks to withhold this specifically the identity of the regional airport that is within close proximity to only one university because, it is argued that such infomation points to a small geographical area and 1 would almost lead to identification of the university and the candidate} i As explained by President in his Affidavit, several "Lzmd Grant"7 universities are of significant distance from large metropolitan areas and the disclosure of a small airport in Lincoln, Nebraska, for example, could rcvcal the identity of a particular candidate. Using President Petcrs' example, Lincoln, Nebraska is home to the University of Nebraska. President Peters argues that if an applicant boarded a flight from Lincoln, Nebraska to Chicago O'Harc, that applicant was likely employed by the University The first part of analysis under Section is to determine if such information can bc considered highly personal or objectionable to the reasonable person. Unlike the identity of 5 current employer of an unsuccessful applicant, an airport used by an applicant for a job interview A cannot be characterized as personal in nature. Additionally, a public body cannot characterize non-personal information as personal simply because possibility that a diligent reporter could effectively piece together infomation ln an October 22, 2010 conversation with this a representative of this Oliice, University Relations Director Thomas Hardy acknowledged that the departing locations from airports within largc metropolitan areas such ns New York City, was disclosed to the rcqucsters. 7 According I0 Dictionary, a L?nd?Gram university [also called land-grant cullegcs or land grant institutions) are institutions of higher education in the United States designated by each state to receive the benefits of the Morrill Acts of 1862 and 1890. Mr. Thomas Hardy The University of Kllmois November I7, 2010 Page 9 obtained through FOIA and Eom sources outside of FOIA in order to draw a reasoned inference based on available facts. To the extent that disclosure could constitute a highly unwarranted invasion of personal privacy, this OfiEcc concludes there exists a legitimate public interest in the locations of the regional airport. If the University conducted a nationwide search for a new President, then there is a material difference in airfare fiom applicants who, for example, departed &om College Station, Texas, Sioux Falls, South Dakota, Madison, Wisconsin or Athens, Georgia. There is also a material difference in price based on the airline used by the University. A flight cm a commercial carrier is likely different in price than a flight on a smaller regional airline. Airfares are subject tu price fluctuation on a variety of factors such as airline, destination, scat location, time, date and route. Therefore, we {ind that airline, date of flight, flight number and departing airport are records that arc within the scope of Section 2.5 and must be disclosed to Travel Agencies Next, rcqucsters seek the names of on-campus travel agency used to arrange the travel need ofthe applicants. Under the Section 2.5 analysis, the University's utilization of an on-campus travel agency for the purposes of planning a flight for a potential applicant falls squarely within records relating to the obligation or expenditure of public funds. The University has not met its burden by I demonstrating through clear and convincing evidence that disclosure of the on-campus travel agency could be linked to identity of the unsuccessful applicant or that such information remains highly personal or objectionable to the reasonable person. The University has not its burden with regard tu name of on-campus travel agency that arranged applicanfs Therefore, names of travel agencies must be released. Information Relating to the Universigfs Search Firm The University explains that a portion of documents submitted to the University by Isaacson, Miller is exempt under Section Section of FOIA allows a public body to withhold a trade secret or commercial or financial infomation only ta the extent that disclosure would cause competitive harm to person or business, and then only insofar as the claim directly applics to the records requested. 5 ILCS (Emphasis added.) Pursuant to Section in order to show substantial competitive harm resulting from disclosure of information alleged to bc exempt from FOIA as trade secrets nr commercial or financial information, the agency that is resisting request for disclosure must show by specqic factual or evidentiary material that (1) the person or entity from which information was obtained actually fhces competition and (2) substantial to competitive position would likely result from disclosure of infomation in the records. Mr. Thomas Hardy The University of Illinois November 17, 2010 Page l0 Cooper v. Department of the Lottery, 266 1007, 1012 (Isl Dist. 1994) (Emphasis added.) The University has supplied this Oftice with an August 25, 20lO from Isaacson, Miller Vice-President Michael Baer. ln his aflidavit, Dr. Baer states: As a result of receiving this infomation, I reviewed the language of FOIA concerning trade secrets, etc and reviewed the Isaacson, Miller documents. I also consulted with John Fahy, our Finance Officer and John Isaacson, the founder and President of the firm. Together we determined that although the overwhelming majority ofthe infomiation contained in the Isaacson, Miller documents was not subject to the exemption, the "fee for services" tigure was proprietary, and that disclosure of that amount would allow our competitors to "game their bids" inthe future, and also would allow potential future clients to negotiate against this amount. Both of these dynamics would undercut our ability to maintain a reasonable profit margin and its competitive advantage. In addition, because the "fee for services" amount is expressed in the Isaacson, Miller documents as a percentage of the first year salary, knowing that percentage would allow anyone to simply calculate the "i`ec for serviccs" amount. Accordingly, that percentage also was deemed to be proprietary. Finally, to the extent that brealcdown of indirect expenses would allow the "fec for services" to be derived, these components were deemed proprietary The total cost of our services was not proprietary, nor was any other aspect of the contractual arrangement. Accordingly, the total amount of the engagement was provided multiple times within the contract. VVhile Isaacson, Miller may face more competition if the requested information were disclosed, there is nothing to indicate in Dr. Baer's affidavit that substantial harm to the competitive position of lsaacson, Miller would be suffered if the 'fee for services} figure was disclosed. The fact that it might be used by competitors does not equate to substantial harm. Ultimately, the 'fee for services' was a figure that was incorporated into Isaacson, Miller's iinal cost to the University. If Section intended that a 'fce for services' assessed by a private firm to a public body was proprietary, privileged and confidential, as the University and Isaacson, Miller suggest, such a finding would render Section 2.5 superfluous, Therefore, the University is obligated to fumish the requesters copies of the unredacted portion of the agreement that contains the 'fce for services} Conclusions ln summary, this Ottice renews our findings that the identity of the unsuccessful applicants and their applications are exempt from disclosure pursuant to Section Additionally, we find that the University has met its burden in demonstrating that disclosure ofthe name of the current employer of the unsuccessful applicant could constitute a highly unwarranted invasion of personal privacy. Because that applicant has not been selected for the position, there exists no legitimate interest in disclosure ofthe current employer. The University has failed to meet its burden in demonstrating that disclosure of the regional airport, flight number, airline, date of flight and the on--campus travel agency used during the search for the President would be highly personal or objectionable to the reasonable person and Mr. Thomas Hardy The University of Illinois November 17, 2010 Page ll that a legitimate public interest exists in disclosure of this information, The fact that this information is ultimately related to the expenditure of public funds under Section 2.5 of FOIA subjects this infomation to disclosure. Finally, the University has not met its burden in demonstrating that the 'fee serviccs' incorporated into the University's contract with Isaacson, Miller would cause substantial harm to Isaacson, Miller under Section Additionally, we find that the 'fee services' relate to the expenditure of public funds and is subject to disclosure pursuant to Section 2.5 of FOIA. Therefore, the University is obligated to disclose the above referenced infomation to the Tribune, and the News-Gazette. This correspondence shall serve to close this matter. Should you have any questions, please contact me at (312) 8l4-5383. Sincerely, Cara Smith Public Access Counselor By: gr 4 Matthew C. Rogina vhljil Assistant Public Access Counselor 8971 9l I4 RPR FOIA pb ex proper pb ex improper univ cc: Jodi Cohen Higher Education Reporter, Chicago Tribune 435 Michigan Avenue Chicago, Illinois 606ll jscohen@tribune.corn Brendan Healey Senior Counsel, Chicago Tribune 435 N. Michigan Avenue Chicago, Illinois 6061 l-4066 bhea1ey@tribune.corn Traci E. Nally Senior Counsel, Champaign News-Gazettd WD 15 Main Street P.O. Box 677 Champaign, Illinois 61824 Mr, Thomas Hardy The University of Illinois November 2010 Page 12 Julie Wurth, Staff Reporter, Champaign News-Gazezze 15 Main Street P.O. Box 677 Champaign, Illinois 61824 Patrick News Anchor/Reporter WD I