Hodges Loizzi

Eisenhammer Rodick & Kohn LLP

Cynthia L. DeCola
cdecola @blerk.com

RECEIVED
March 29, 2011

Electronic Mail
APR 0 4 2011
Via First Class and

Public Access
Sarah Kaplan, Assistant Public Access Counselor Counselor

Office of the Attorney General

500 South Second Street
Springfield, Illinois 62706
PublicAccess@atg. state. il.us

Re: District 301' s Response to David Giuliani' s FOIA Request for Review
2011 PAC 12695

Dear Ms. Kaplan:

This letter is in response to your letter, dated March 14, 2011, in which you determined that
further inquiry into David Giuliani' s FOIA Request for Review is warranted and requested
certain additional information from the District. Specifically, you requested ( 1) unredacted
copies of documents related to two of Mr. Giuliani' s three FOIA requests, ( 2) information
regarding whether a hearing took place regarding Mr. Buser' s disciplinary matter, and if so, who
was present and what was discussed, ( 3) a factually specific response explaining why the
asserted exemptions apply, and ( 4) whether the District believes any of the responsive documents
are exempt from disclosure under other FOIA exemptions.

As a preliminary matter, you asked the District to clearly identify any information the District
believes to be confidential. Generally, the District does not seek to withhold any of the
information* in this response letter from your review, but it believes all of the underlying
documentation enclosed with this letter is confidential and exempt from disclosure to third
parties.

Background

The substance of Mr. Giuliani' s FOIA request stems from the District' s investigation of A.J.
Buser, a former special education teacher and wrestling coach in the District, for his
inappropriate text message communications with a female high school student in late January,
theDistrict
student' s parent.
2011. The District was alerted to the text messages by
administrators promptly conducted a further investigation,, placing Mr. Buser on administrative
leave pending the outcome of its investigation.

Note: We have redacted the names of students and a very limited an-mum of certain other confidential information.
from the enclosed documents.
ARLINGTON HEIGHTS

3030 Salt Creek Lane, Suite 202

Arlington Heights, IL 60005
ter 847- 670- 9000 fax 847- 6704334 Belleville
Arlington Heights
www. hlerk. com
Hodges Loizzi
Eisenhammer Rodick & Kohn LLP
Sarah Kaplan, Assistant Public Access Counselor
March 29, 2011
Page 2

On February 24, 2011, in a properly- closed session of the Board of Education, Superintendent
Dr. Jane Eichman recommended to the Board that Mr. Buser be dismissed. Pursuant to Section
24- 12 of the Illinois School Code, the District administration presented its evidence against Mr.
Buser, and Mr. Buser was afforded an opportunity to respond. Present at this pre- termination
proceeding were: all Board of Education members, Superintendent Dr. Jane Eichman; Principal
Ron McCord; Secretary to the Board/Superintendent, Toni Cain; and Board attorneys Cindi
DeCola and Debra Jacobson. Also present during a portion of the closed session meeting were
Mr. Buser and his representative, IEA-NEA UniSery Director, Susan Goudreau.

Following the proceeding, but prior to the Board taking any action to discipline Mr. Buser, Ms.
DeCola, Ms. Jacobson, and Ms. Goudreau negotiated the terms of a resignation agreement on
behalf of the parties. The Board returned to open session to approve Mr. Buser' s resignation. As
a result of the resignation, there was no final disciplinary action taken. Moreover, pursuant to
Illinois law, the Board of Education possesses only an investigatory/ charging function when
considering the dismissal of a tenured teacher; final disciplinary authority for any dismissal rests
with a hearing officer appointed by the Illinois State Board of Education. Board ofEducation of
Community Consolidated School District No. 54 v. Spangler, 328 Ill. App. 3d 747, 767 N.E.2d
452, 263 Ill. Dec. 1 ( 2002).

On the night of the Board meeting, Mr. Giuliani verbally requested a copy of the resignation
agreement with Mr. Buser, and he was asked to submit his FOIA request in writing. He did so
the next morning ( February 25), and the District provided him a copy of the resignation
agreement that same day. Mr. Giuliani' s FOIA request also sought:

1. " The texts, letters, emails or other written materials that Mr. Buser sent to the student that
were deemed inappropriate by the school district;" and
2. " Any written investigatory reports or other factual documentation used in the case
involving Mr. Buser that led to his resignation."

On March 3, 2011, the District denied the remainder of Mr. Giuliani' s FOIA request on the
grounds the records he requested were exempt as " relating to a public body' s adjudication of
employee grievances or disciplinary cases." 5 ILCS 140/ 70)( n).

Substantive Response

The District acted properly in considering and ultimately denying a portion of Mr. Giuliani' s
FOIA request. However, to be very clear, the District' s denial of a portion of Mr. Giuliani' s
FOIA request was unequivocally not to protect Mr. Buser or to cover up his actions. The public
has a right to know generally why Mr. Buser is no longer employed in the District, and they have
access to that information in the form of Mr. Buser' s resignation agreement. Additionally,
moments after the Board approved a resignation agreement with Mr. Buser, Dr. Jane Eichman
Hodges Loizzi
Eisenhammer Rodick & Kohn LLP
Sarah Kaplan, Assistant Public Access Counselor
March 29, 2011
Page 3

informed Mr. Giuliani, and another reporter who was also present, that Mr. Buser had been the
subject of a parent complaint regarding his inappropriate communications with a student. Dr.
Eichman also contacted the Regional Superintendent' s Office. The District has asserted that the
specific text messages and investigatory materials are exempt because it wishes to protect the
minor, female student who was the recipient of these unwanted communications and to allow the
student to put this sensitive and stressful matter behind her while she completes her high school
education.

That being said, Section 7( 1)( n) of the FOIA allows public bodies to deny requests for "[ rjecords
relating to a public body' s adjudication of employee . . . disciplinary cases; however, this
exemption shall not extend to the final outcome of cases in which discipline is imposed." Under
this exemption, even when discipline is imposed, only the final disciplinary outcome has to be
disclosed; the underlying records related to the disciplinary action remain exempt regardless of
the disciplinary outcome. In this case, Mr. Giuliani' s requests are for exactly the type of
information that is exempt under Section 7( 1)( n).

The attached responsive documents consist of ( 1) text messages between Mr. Buser and the
student, 2) administrators' notes from investigative conferences with witnesses, and ( 3)
(

administrators' and Mr. Buser' s statements from Mr. Buser' s pre- termination proceeding. The
text messages were sent between the private cell phone of Mr. Buser and the private cell phone
of a student. They only fell within the ambit of" public records" under FOIA because they were
gathered by District administrators as evidence of the inappropriate actions of one of its
employees. The other investigatory documents were created solely as part of the District' s
investigation of Mr. Buser and were used as evidence supporting the Board' s adjudication of an
employee' s disciplinary case. As a result, they are exempt under Section 7( 1)( n).
Applicability of Other FOIA Exemptions

Although the District continues to believe its assertion of the Section 7( 1)( n) exemption is
proper, your letter also asked whether the District asserts any other FOIA exemptions. We
believe at least three other exemptions apply.

First, Section 7( 1)( c) allows the District, with approval from the Public Access Counselor, to
deny a request for " personal information contained within public records, the disclosure of which
In this case, the individual
would constitute an unwarranted invasion of personal privacy."

whose personal privacy is at stake is the female student, not Mr. Buser. The specific comments
made by Mr. Buser to the student would be " highly personalheror objectionable to a reasonable
person," and — based on conversations with the student and parents — actually were highly
personal and objectionable to the student and her family. Moreover, because the student is a
minor, her privacy outweighs any public interest in knowing exactly what was said, particularly
the matter involved inappropriate communications.
where the District already publicly stated
Hodges Loizzi
Eisenhammer Rodick & Kohn LLP
Sarah Kaplan, Assistant Public Access Counselor
March 29, 2011
Page 4

Therefore, the enclosed documents are exempt under Section 7( 1)( c). It should also be noted the
student' s privacy cannot adequately be protected by simply redacting her name in the records. In
a community the size of Rock Falls, the student could be identified by individuals based solely
on the context of these documents. Therefore, it is appropriate to completely exempt these
documents.

Second, Section 7. 5( r) exempts from disclosure any "[ i] nformation prohibited from being
the Illinois School Student Records Act."
The ISSRA defines a student record as
disclosed by
any writing ... concerning a student and by which a student may be individually identified,
maintained by a school..." Under the ISSRA, student records are prohibited from being
disclosed to anyone other than a parent, except in limited situations not applicable here.
Therefore, since the enclosed documentation identifies the female student and at least two other
student witnesses, it is prohibited from being disclosed to the general public under the ISSRA
and Section 7. 5( r) of the FOIA.

Third, Section 7. 5( q) exempts from disclosure any "[ i] nformation prohibited from being
disclosed the Personnel Records Review Act."
Although the PRRA does not explicitly
by
prohibit the disclosure of much information, it does prohibit the employee from inspecting
i] nformation of a personal nature about a person other than the employee if disclosure of 820
the
information would constitute a clearly unwarranted invasion of the other person' s privacy."

ILCS 40/ 10( d). If even the employee would not have access to information about the female
student or other witnesses, it follows logically that the same information should not be disclosed
to the general public. Therefore, the enclosed documents are also exempt under Section 7. 5( q).
Public Policy

Finally, requiring the disclosure of investigatory materials related to disciplinary matters will
severely hamper the ability of public employers to conduct fruitful investigations. Witnesses —
be they employees, students, or third parties — often already are hesitant or unwilling to
investigations, sometimes understandably so. If those same
cooperate fully in disciplinary
witnesses are aware their statements will be shared with the public and possibly printed in the
local newspaper, it is very likely they. will be even more unwilling to cooperate with Mr.
a school
investigations. As a result, it would be easier for misconduct like
District' s disciplinary
Hodges Loizzi
Eisenhammer Rodick & Kohn LLP
Sarah Kaplan, Assistant Public Access Counselor
March 29, 2011
Page 5

Buser' s to continue unchecked. Such a result is not in the interests of the public or the District,
and as a result, the District' s investigatory documents should remain exempt.

Sincerely,

HODGES, LOIZZI, EISENHAMMER,

RODICK & KOHN LLP

Cyn/ hia L. DeCola

Attorney for District 301

CLD/jah

Enclosures

cc: Dr: Jane Eichman, Superintendent

Harold Wagner, Board President

196366_ 1. DOC