College of DuPage – "Further action is warranted"

DuPage Co. (ECWd) –
The College of DuPage Freedom of Information Officer, Barbara Mitchell, denied my request for a copy of the Internal Audit report regarding Herricane Graphics citing exemption 7(1)(m) of the Act.

Sec. 7. Exemptions.
(1) When a request is made to inspect or copy a public record that contains information that is exempt from disclosure under this Section, but also contains information that is not exempt from disclosure, the public body may elect to redact the information that is exempt. The public body shall make the remaining information available for inspection and copying. Subject to this requirement, the following shall be exempt from inspection and copying:  (m) 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.

In my original FOIA request I provided them the statute language that overrides  the above exemption.   (Original FOIA)

According to Sec. 3. (a) of FOIA, 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. Notwithstanding any other law, a public body may not grant to any person or entity, whether by contract, license, or otherwise, the exclusive right to access and disseminate any public record as defined in this Act.

That was included to make her job easier as we knew this very audit had been provided by COD to the Higher Learning Commission(HLC), an ‘entity’ at a minimum.   The HLC then disseminated information directly from that audit in there accreditation report to COD.
By refusing our FOIA and giving HLC a copy of the audit they have given an exclusive right to a public record in violation of 3(a) of the Act.
We are confident that the Public Access Counselors office with the Attorney General will rule in our favor as it is clear they have given the requested record to another entity.  Had there been no merit to our request they would have already ruled accordingly.  We pray this won’t be another multi-year waiting period as have so many other FOIA cases in that Office.
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