The PAC recently issued a non-binding opinion, finding a school district did not waive the attorney-client privilege where prior disclosures of the requested records were mandated by state law.
At issue was a FOIA request for an investigation report prepared by the school district’s attorney, which detailed the attorney’s investigation into allegations of a staff member’s alleged sexual misconduct toward a student, including the attorney’s findings and recommendations. The school district denied the FOIA request, asserting several FOIA exemptions, including the attorney-client privilege exemption under Section 7(1)(m) of the FOIA. The requester filed a request for review with the PAC, asserting the investigation report should be made public due to the nature of the employee’s alleged misconduct.
As an initial matter, the PAC agreed that investigation reports prepared by a law firm to advise a public body in connection with allegations of misconduct may be exempt from disclosure under Section 7(1)(m) of the FOIA. Section 7(1)(m) exempts from disclosure “communications between a public body and an attorney…representing the public body that would not be subject to discovery in litigation.” Because the investigation report contained the investigating attorney’s findings and recommendations made to the school district in the attorney’s capacity as the district’s lawyer, the PAC held that the investigation report was protected by attorney-client privilege and therefore, exempt from disclosure under Section 7(1)(m) of the FOIA, unless the privilege had been waived.
In its response to the PAC, the school district disclosed that it previously shared the investigation report with the Illinois State Board of Education (ISBE) and the former student who was involved in the complaint of misconduct. The school district explained that it shared the investigation report with the former student who was the subject of the complaint pursuant to a request for the record under the Illinois School Student Records Act (ISSRA). Under Section 5 of the ISSRA, an eligible student (over the age of 18) “shall have the right to inspect and copy all school student permanent and temporary records.” Because the investigation report constituted a “school student record” as defined by ISSRA, the district was required to provide the former student with the investigation report upon request. The only other disclosure of the investigation report was to ISBE pursuant to a subpoena issued under Section 21B-75 of the School Code, which gives ISBE the power to launch investigations into certain types of employee misconduct and to issue subpoenas “requiring…the production of any evidence, including files, records, correspondence, or documents, relating to any matter in question in the investigation.” Here, the school district received a subpoena from ISBE for the employee’s personnel files, including the investigation report, and disclosed the requested records to ISBE in accordance with the subpoena.
While attorney-client privilege can be “voluntarily” waived if information is shared with a third party, the school district argued that the disclosures were not “voluntary,” as the district was required to share the report with the former student who was the subject of the complaint under ISSRA and with ISBE as part of its license suspension and revocation proceedings under the Illinois School Code. The PAC agreed with the district, reasoning that the school district’s reported disclosures were not voluntary and, therefore, the attorney-client privilege was not waived with respect to the records the district was compelled to produce.
This opinion serves as an important reminder to public bodies to be cautious when disclosing records subject to the attorney-client privilege to third parties, as the disclosure may waive the privilege. Where such disclosures are required by law, however, the attorney-client privilege may remain intact.
