OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS Lisa Madigan ATTORNEY GENERAL August 2, 2018 Via eluclrum'c mail Mr. John Km Via eleclrum'c mail Ms. Pal Lord Senior Assistant City Altomey Cily 400 South Eagle Sireel Naperville, Illinois 60540 RE: FOIA Request for Review 7 2018 PAC 51203 Dear Mr. Kmfi and Ms. Lord: This determination letter is issued pursuant Io section 9.5(0 ofthe Freedom of Infennatiun Act (FOIA) (5 ILCS 140/95") (West 2015)). For the reasons that follow, the Public Access Bureau concludes Illal the Cily ofNaperville (Clly) improperly wiil-lheld electric utility bills rcsponslve 10 Mr, John Krafi's FOIA quuesl. On January 4, 2013, Mr, Krafi submitted a FOIA request to the Clly seeking copies <>. In suppon ofils reliance on sectinn 7(1 ofFOlA. the City cited section 26422 uithe Public Utilities Act (220 ILCS (West 2015)), section 1 1-1 l7-l(5) citne Illinois Municipal Code (65 ILCS 5/1 1.1 17-1(5) (West San mun Second whim-1091) - 11"! (2171735 4771 - Fax anvil-med Idflwesi RmdolphSIleeI, Gunny], Illiuu15,60wl - my (31215144374 Fax (sunglasses I001 sun Mam. Cmondlle. Illnun 529111 tiel!) sz9rMun-1TY tam 525mm - Fat (618) 529.5415 Mr. John Kraft Ms. Pat Lord August 2, 2018 Page 2 2016)), and City Ordinance 17- 038, now codified as section 8- 1B- 2 of the City's Municipal Code.' On that same day, Mr. Kraft submitted this Request for Review disputing the denial. On January 19, 2018, this office forwarded a copy of Mr. Kraft' s Request for Review to the City and asked it to provide a detailed explanation of the legal and factual bases for the asserted exemptions. On January 30, 2018, this office received the City' s written response, which stated that the City possessed electric utility bills for only six months of 2017, and reasserted the exemptions stated in its denial letter. Mr. Kraft replied on January 31, 2018, arguing that the City may not rely on municipal ordinances to withhold records under FOIA, and clarifying that he is not interested in information on the bills that documents the amount of electricity used by the resident. DETERMINATION All records in the custody or possession of a public body are presumed to be open to inspection or copying. Any public body that asserts that a record is exempt from disclosure has the burden of proving by clear and convincing evidence that it is exempt." 5 ILCS 140/ 1. 2 ( West 2016). The exemptions from disclosure contained in section 7 of FOIA ( 5 ILCS 140/ 7 ( West 2017 Supp.)) are to be narrowly construed. See Lieber v. Board ofTrustees of Southern Illinois University, 176 I11. 2d 401, 407 ( 1997). Section 7( 1)( a) of FOIA Section 7( 1)( a) of FOIA exempts from inspection and copying "[ i] nformation specifically prohibited from disclosure by federal or State law or rules and regulations implementing federal or State law." "[ A] n exemption restricting the expansive nature of the FOIA' s disclosure provisions must be explicitly stated -that is, such a proposed disclosure must be specifically prohibited." ( Emphasis in original.) Better Gov't Assn v. Blag'ojevich, 386 Ill. App. 3d 808, 816 ( 4th Dist. 2008). The City asserted that section 8- 1B- 2: 2 of the City's Municipal Code, which states that electric utility " customers' personal information will not be connected to usage data released to any third parties," prohibits it from disclosing the records requested by Mr. Kraft. The City also argued that disclosure of private customer information is prohibited by section 2- 10- 4: 3 of the City's Municipal Code, 2 which defines a " violation of privacy" as a release of "private customer information," including customer home addresses and energy use data. NAPERVILLE, ILL., CODE OF ORDINANCES, § 8- 1B- 2 ( 2013). 2NAPERVILLE, ILL., CODE OF ORDINANCES, § 2- 10- 4: 3 ( 2012). Mr. John Kraft Ms. Pat Lord August 2, 2018 Page 3 The plain language of section 7( 1)( a) of FOIA limits its scope to " federal or State law or rules and regulations implementing federal or State law." In City of Chicago v. Janssen Pharmaceuticals, Inc., 2017 IL App ( 1st) 150870, ¶ 24, 78 N.E. 3d 446, 462 ( 2017), the Illinois Appellate Court held that the phrase " State law" in section 7( 1)( a) of FOIA does not include municipal ordinances. There, the court rejected a public body' s argument that records prohibited from being disclosed by a municipal ordinance were exempt from disclosure pursuant to section 7( 1)( a) of FOIA: In light of the explicit intention of our legislature to construe the exceptions narrowly and our supreme court' s holdings in accordance with this principle, we conclude that the phrase " State law" must be afforded its plain and ordinary meaning, which necessarily excludes municipal ordinances. Janssen Pharmaceuticals, Inc., 2017 IL App ( 1st) 150870, ¶ 24, 78 N.E. 3d. at 462. In this matter, the City's response to this office argues that the City adopted the cited ordinances " pursuant to a legislative grant of authority which has the common- sense effect of putting customers of municipal public utilities on an equal privacy footing with customers of non -municipal public utilities." 3 The City stated that section 11- 117- 1( 5) of the Illinois Municipal Code ( 65 ILCS 5/ 11- 117- 1( 5) ( West 2016)), which empowers a municipality to make all needful rules and regulations" in relation to its ownership and operation of a public utility, provides the legislative grant of authority for the adoption of the ordinances at issue. Although section 11- 117- 1( 5) of the Municipal Code may vest the City with the authority to promulgate the cited ordinances relating to utility customer privacy, that legislative grant of authority does not convert ordinances adopted pursuant to its provisions into " State law," for purposes of section 7( 1)( a) of FOIA. The City also argues that section 16- 122 of the Public Utilities Act (220 ILCS 5/ 16- 122 ( West 2016)) provides privacy protections for customers of non -municipal public utilities, and that the City' s Municipal Code puts " customers of municipal public utilities on an equal privacy footing with customers of non -municipal public utilities." 4 Section 16- 122 of the Public Utilities Act does not regulate the conduct of the City or prohibit it from disclosing any 3Letter from Pat Lord, Senior Assistant City Attorney, City of Naperville, to Ms. [ Leah] Bartelt January 30, 2018). January 4Letter from Pat Lord, Senior Assistant City Attorney, City of Naperville, to Ms. [ Leah] Bartelt 30, 2018). Mr. John Kraft Ms. Pat Lord August 2, 2018 Page 4 information. Therefore, that provision is not relevant to this matter. 5 Because municipal ordinances are not considered " State law" for purposes of section 7( 1)( a) of FOIA, and because the City has not identified a Federal or State law or rule implementing such a statute that specifically prohibits it from disclosing the requested utility bills, this office concludes that the City has not met its burden of demonstrating that the utility bills are exempt from disclosure in their entireties pursuant to section 7( 1)( a) of FOIA. Section 7( 1)( b) of FOIA In its response to this office, the City further argued that a customer' s home address on a utility bill is exempt from disclosure pursuant to section 7( 1)( b) of FOIA. That section exempts "[ p] rivate information, unless disclosure is required by another provision of this Act, a State or federal law or a court order," and section 2( c- 5) of FOIA ( 5 ILCS 140/ 2( c- 5) West 2016)) defines " private information" as: U] nique identifiers, including a person' s social security number, driver' s license number, employee identification number, biometric identifiers, personal financial information, passwords or other access codes, medical records, home or personal telephone numbers, and personal email addresses. Private information also includes home address and personal license plates, except as otherwise provided by law or when compiled without possibility of attribution to any person. ( Emphasis added.) As noted above, home addresses are expressly listed in section 2( c- 5), and This office also notes that section 2. 5 of FOIA ( 5 ILCS 140/ 2. 5 ( West 2016)) provides that "[ a] II 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," and that article VIII, section 1( c) of the Illinois Constitution of 1970 provides that " records of the obligation, receipt and use of public funds of the State, units of local government and school districts are public records available for inspection by the public according to law." Because funds received by a public body from utility customers are expressly subject to disclosure under these provisions of law, customers of municipal public utilities are not on an equal privacy footing with customers of private public utilities. Mr. John Krafl Ms. Pat Lord August 2, 20l8 Page 5 therefore can be redacted from a utility bill that displays the name ol'the utility customer.'5 7 In accordance with the conclusions expressed above, this office requests that City provide Mr, Krafl with 3 copies ofthe billing records for the identified resident The City may redact home addresses from the bills as well as the customer account number pursuant to section of FOIA, 522 Atty Gen Reqi Rev. Ltr. 50745, issucd March 12, 2018. at 3 (determining that a customer account number on a Water bill is a unique identifier); Ill. Att'y Gen. Req. Rev. litri 27522, issued May 20, 2014, at 3 (same) Finally, as Mr. Kraft explained that he is not interested in electricity usage information displayed on the bills, the City may also redact that information as non-responsive to the request. The Public Access Bureau has determined that resolution of this matter does not require the issuance ofa binding opinion. This letter serves to close this matter. If you have any questions, you may Contact me at the Chicago address above. Very truly yours, LEAH BARTELT Assistant Attorney General Public Access Bureau 51203 (mi improper 71b proper mun "With respect to utility bills that do not contain the name orthe customer, the Public Bureau has previously that the customers' home addresses arc riot from disclosure pursuant to section Atl'y ocn PAC ch. Rev issued May l3, zots, at 34 Home addresses on such bills tire not "unique identifiers," and are required to be disclosed pursuant to section 2.5 of FOIA 7laccausc this omcc has determined that the City mity rcdact the harm address from the responsive rccords pursuant to scsticri 7mm), and bccausc Mr Kran stated in his reply that ho is not interested in interruption on the bill documenting iitility usage. it is riot necessary tu address the City's argument that this information is exempt from disclosure pursuant In section 7mm ofFOlA.