AG: IMEA Violated FOIA Law; Improperly Withheld Public Records –

Springfield, IL. (ECWd) –

More than six years ago, July 30, 2014 to be exact, I submitted a request for public records to the Illinois Municipal Electric Agency (“IMEA”) asking for certain items identifying contractors, payments, receipts, electric rates charged to others, and more.

On September 15, 2014, I submitted a Request for Review to the Attorney General’s Public Access Counselor claiming the IMEA improperly withheld public records.

The IMEA quickly claimed those records were, in part, private and financial information of the non-public entities and information pertaining to the operating costs of its Prairie State plants, clearly unwarranted invasion of personal privacy, valuable formulae and research data, trade secrets, market sensitive information, protected under the Illinois Trade Secrets Act, protected by the Federal Energy Regulatory Commission, and protected by the Energy Policy Act.

All of their arguments failed.

My argument from the beginning was that the Constitution, the Freedom of Information Act, and the Local Records Act all similarly state that “All records relating to the obligation, receipt, and use of public funds of the state, units of local government, and school districts are public records subject to inspection and copying by the public.”

From the Attorney General’s determination:

• the Agency has not demonstrated that the Energy Policy Act or its implementing regulations prohibit the disclosure of the operating cost information contained in the records
• As to the Illinois Trade Secrets Act, the Agency acknowledged that the Act contains no provision that expressly prohibits the disclosure of information constituting a ” trade secret.”
• In particular, the Agency has failed to illustrate the competition that the members face in bidding their energy generation and how competitors could utilize the information at issue ” to alter their market bidding strategies” to the detriment of the members or ” make market moves to manipulate the market price up or down to benefit [ their] position.”
• although section 7(1)(g) may ” be applicable to the disclosure of financial information obtained from a private entity by a public body acting in a regulatory or investigatory capacity[,] t]he scope of section 7(1)(g) does not appear to encompass commercial or financial information relating to the public body’s own business transactions.”
• Moreover, information pertaining to the obligation, receipt, and use of public funds are subject to disclosure under article VIII, section 1( c) of the Illinois Constitution of 1970, and section 2.5 of FOIA ( 5 ILCS 140/ 2.5 ( West 2014)). As Mr. Kraft highlighted, the Attorney General has issued binding opinions concluding that, based on the specific disclosure requirements of the Illinois Constitution and section 2. 5 of FOIA, the financial terms of contracts, billing invoices, and other information reflecting the expenditure of public funds do not fall within the scope of section 7( 1)( g).
• For the same reasons, the Agency has failed to illustrate that disclosure of the limited descriptions and identities of the Prairie State Campus vendors would constitute a clearly unwarranted invasion of personal privacy, 18 as those details pertaining to the use of public funds. The details also relate to businesses rather than individuals and thus would not constitute an invasion of personal privacy.
• Here, the Agency acknowledged that the information at issue does not itself reflect a formula, and it has provided no legal or factual basis to support its assertion that the information still falls within the scope of the exemption because competitors could use the information to develop formulae or market strategy. Likewise, the Agency has provided no basis to support its claim that ” research data” encompasses operating cost information because competitors might use the information for their own research purposes.

Read the determination below: