OFFICE OF THE ATTORNEY GENERAL

STATE OF ILLINOIS

KWAME RAOUL
ATTORNEY GENERAL

August 12, 2019

Via electronic mail

Ms. Ana Espinosa
Multimedia Journalist
WICS TV
2680 East Cook Street
Springfield, Illinois 62703
amespinosa@sbgtv. com

Via electronic mail

Mr. Bret Angelos
Freedom of Information Officer
Office of Legal Services
Illinois Department of Children & Family Services
160 North LaSalle Street, Suite S- 600
Chicago, Illinois 60601
bret.angelos@illinois.gov

RE: FOIA Request for Review — 2019 PAC 57946

Dear Ms. Espinosa and Mr. Angelos:

This determination letter is issued pursuant to section 9. 5( 0 of the Freedom of

Information Act ( FOIA) ( 5 ILCS 140/ 9. 5( 0 ( West 2018)). For the reasons that follow, the
Public Access Bureau concludes that the Illinois Department of Children and Family Services
DCFS) improperly withheld certain information from records provided in response to Ms. Ana
Espinosa' s April 8, 2019, FOIA request.

On that date, Ms. Espinosa, on behalf of WICS, submitted a FOIA request to

DCFS seeking the " names of DCFS and private agency employees who had their Child Welfare
employee Licenses revoked, suspended, or relinquished, or have pending charges filed in
FY2018. i1 For those employees, Ms. Espinosa also requested information describing the

IE -mail from Ana Espinosa, Multimedia Journalist, WICS, to Bret Angelos ( April 8, 2019).

500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046
100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814- 3000 • TTY: ( 800) 964- 3013 • Fax: ( 312) 814- 3806
601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529- 6400 • TTY: ( 877) 675- 9339 • Fax: ( 618) 529- 6416
Ms. Ana Espinosa
Mr. Bret Angelos
August 12, 2019
Page 2

charges they were or are currently facing, along with information describing any charges the
employees may have faced since being licensed. On April 29, 2019, DCFS furnished Ms.
Espinosa two pages of responsive records. One page is entitled " CWEL Report," and provides
statistics for the fiscal years of 2016- 2019 describing the number of licensure actions taken
against DCFS employees and private agency staff. The other record is a list of licensure actions
taken against child welfare employee licensees, listing a date, complaint number, name, whether
the licensee is DCFS or private agency staff, and the " status" of the license. DCFS redacted
from this list all complaint numbers and names, and in some cases, some information from the
status" column. DCFS' s partial denial letter asserts that the redacted information is exempt
from disclosure pursuant to sections 7( 1)( a), 7( 1)( b), 7( 1)( f) (5 ILCS 140/ 7( 1)( a), ( 1)( b), ( 1)( f)
West 2018)), and section 7. 5( h) of FOIA ( 5 ILCS 140/ 7. 5( h) ( West 2018)). In support of its

reliance on section 7( 1)( a), DCFS cited section 5c( a) of the Children and Family Services Act
20 ILCS 505/ 5c( a) ( West 2018)), and section 412. 60 of title 89 of the Administrative Code ( 89
I11. Adm. Code § 412. 60, last amended at 39 I11. Reg. 7609, effective May 15, 2015). On May 3,
2019, Ms. Espinosa submitted this Request for Review, contesting the redactions.

On May 14, 2019, this office sent a copy of the Request for Review to DCFS
asked it to provide for our confidential review an unredacted copy of the responsive records,
along with a detailed written explanation of the factual and legal bases for the redactions. On
May 23, 2019, DCFS provided a written response and the requested records, and on May 28,
2019, furnished this office a different version of the responsive record containing additional
confidential information concerning the status of the licensure actions. This office forwarded
DCFS' s written response to Ms. Espinosa on May 28, 2019. During a telephone conversation on
May 31, 2019, she notified this office that she would not submit a written reply but reasserted the
legal arguments made in her Request for Review.

DETERMINATION

All records in the custody or possession of a public body are presumed to be

open to inspection or
copying." 5 ILCS 140/ 1. 2 ( West 2018); see also Southern Illinoisan v.
Illinois Dept. of Public Health, 218 Ill. 2d 390, 415 ( 2006). A public body " has the burden of
proving by clear and convincing evidence" that a record is exempt from disclosure. 5 ILCS
140/ 1. 2 ( West 2018). The exemptions from disclosure are to be narrowly construed. Lieber v.
Board of Trustees of Southern Illinois Univ., 176 Ill. 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." In support of its redactions to the list of licensure actions,
Ms. Ana Espinosa
Mr. Bret Angelos
August 12, 2019
Page 3

DCFS relies on 5c( a) of the Children and Family Services Act, which authorizes the Direct Child
Welfare Service Employee License Board of DCFS " to revoke or suspend the license of anyone
who after a hearing is found to be guilty of misfeasance" and empowers DCFS to " promulgate
such rules as necessary to implement this Section."

DCFS has promulgated rules implementing section 5c( a) of the Children and
Family Services Act. 89 Ill. Adm. Code §§ 412. 10- 412. 110, last amended at 39 I11. Reg. 7609,
effective May 15, 2015. " Direct service casework managers, supervisors and caseworkers who
carry assigned cases and/ or provide case management services for the purpose of investigation,
casework, intact/ family preservation, permanency or licensing decisions shall obtain a license to
practice as a direct child welfare service employee." 89 Ill. Adm. Code § 412. 40, last amended at
39 Ill. Reg. 7609, effective May 15, 2015. Section 412. 50 of title 89 of the Administrative Code
89 Ill. Adm. Code § 412. 50, last amended at 39 I11. Reg. 7609, effective May 15, 2015) outlines
the grounds upon which a child welfare service employee license may be suspended, revoked, or
not reinstated, and section 412. 60 of title 89 of the Administrative Code describes the process for
receiving complaints, investigating complaints, and conducting hearings concerning complaints
filed against licensees.

In redacting information from the list provided to Ms. Espinosa, DCFS

specifically referenced sections 412. 60( a) and 412. 60( f)(3), which state:

a) Complaints

Complaints shall be made to OCWEL for determination as

to whether the complaint meets the grounds for licensure action in
Section 412. 50. The complaint shall be confidential within
OCWEL, the [ Direct Child Welfare Service Employee License]
Board, ELRT and the [ Office of the Inspector General ( OIG)],
unless otherwise ordered by a court or Administrative Law
Judge of competent jurisdiction. ELRT shall review the
complaint to determine whether the complaint meets the
description of one or more of the grounds for licensure action in
Section 412. 50. If a majority determines that the complaint meets
the description of one or more of the grounds for licensure action,
the report shall be forwarded to the OIG for investigation.

0 Confidentiality during the Hearing Process

Ms. Ana Espinosa
Mr. Bret Angelos
August 12, 2019
Page 4

3) Confidentiality During the Hearing Process

The Department has an affirmative duty to protect the

confidentiality of personal information, in accordance with 89 Ill.
Adm. Code 431 ( Confidentiality of Personal Information of
Persons Served by the Department of Children and Family
Services), the federal Adoption Assistance and Child Welfare Act
and Section 10- 60 of the Illinois Administrative Procedure Act.
Confidentiality shall be preserved throughout the administrative
hearing, the transmittal of the ALJ' s recommendation to the Board
and the release of the final administrative decision. None of the
documents, including the ALJ' s recommendation to the Board,
shall be subject to the Freedom of Information Act. The final
administrative action, however, shall be public information.
Emphasis added.)

In her Request for Review, Ms. Espinosa argues that DCFS' s redactions contradict
the final sentence of section 412. 60( f)( 3), which declares that the " final administrative action"
shall be public information. She further contends that the decision to revoke or suspend a child
welfare service employee license is a final administrative action, and that a licensee' s decision to
relinquish his or her license should be treated similarly. In response, DCFS argues:

The only item that appears public is the final administrative

decision. The DCFS Office of the Inspector General conducts
these licensing investigations and prosecutes the administrative
hearings under DCFS Rule 412. The DCFS Inspector General
produces an annual report concerning its work on licensing
complaints and employee licensure actions. In none of the
attached OIG annual report excerpts relating to CWEL
investigations does the OIG reveal the identity of the licensee. The
final action is revealed in the OIG report, but the names of the
licensees are excluded as private information21

The primary objective when construing the meaning of a statute is to ascertain

and give effect to the intent of the General Assembly. DeLuna v. Burciaga, 223 III. 2d 49, 59

2Letter from Bret Angelos, DCFA FOIA Officer, to Leah Bartelt, Assistant Attorney General,
Public Access Bureau, at 3 ( May 23, 2019).
Ms. Ana Espinosa
Mr. Bret Angelos
August 12, 2019
Page 5

2006). " The most reliable indicator of legislative intent is the statutory language, given its plain
and ordinary meaning." Gaffney v. Board of Trustees of Orland Fire Protection District, 2012
IL 110012, ¶ 56, 969 N.E. 2d 359, 372 ( 2012). Where the language of a statute is clear and
unambiguous, a reviewing body " may not depart from the plain language by reading into the
statute exceptions, limitations, or conditions that the legislature did not express." Hayashi v.
Illinois Department of Financial and Professional Regulation, 2014 IL 116023, ¶ 16, 25 N. E. 3d
570, 576 ( 2013).

The plain language of sections 412. 60( a) and 412. 60( 0( 3) demonstrates that
complaints, hearing records, and the recommendation of the Administrative Law Judge to the
Board concerning Child Welfare Service Employee Licensees are confidential; accordingly,
those records are exempt from FOIA pursuant to section 7( 1)( a). However, section 412. 60( 0( 3)
also clearly and unambiguously states that the Board' s final administrative actions concerning
licensees are public information. This rule does not state that names of licensees who were the
subjects of final administrative actions are confidential or may be redacted from the final
administrative actions. The OIG' s decision not to identify the licensees by name in her annual
report does not supersede the directive outlined in the plain language of the regulation.
Accordingly, the name of a licensee in a record constituting the " final administrative action" of
the Board is not exempt from disclosure pursuant to section 7( 1)( a) of FOIA.

We note that the record DCFS furnished Ms. Espinosa with redactions, and
provided this office for our confidential review, is not a copy of a " final administrative action" of
the Board but is instead a list of licensure actions obtained from the Child Welfare Employee
Licensure Administrator. To the extent that DCFS has chosen to create a record for Ms.
Espinosa that collects the information from, among other places, copies of the final
administrative actions issued by the Board, in lieu of providing her copies of the final
administrative actions themselves, DCFS may not redact from that record information that
section 412. 60( 0(3) has declared to be public information.

Ms. Espinosa's FOIA request seeks the names of any individuals who had their
licenses revoked or suspended, as well of the names of individuals who have pending charges or
who relinquished their licenses. Section 412. 20 of the regulation ( 89 Ill. Adm. Code § 412. 20,
last amended at 39 I11. Reg. 7609, effective May 15, 2015) defines " Final Administrative
Decision" as " the Board' s final decision, order or determination in a particular case that affects
the legal rights, duties or privileges of participants and that may be further appealed to the circuit
court under the Administrative Review Law." Based on this definition, the Board' s final, and
appealable, decision to revoke or suspend a license is public information. However, individuals
who " have pending charges" have not yet been the subject of the Board' s " final administrative
decision." For those individuals, records containing their names that may exist while the charges
are still
pending, such as complaints, hearing records, or the recommendation from the
Ms. Ana Espinosa
Mr. Bret Angelos
August 12, 2019
Page 6

Administrative Law Judge, would be confidential pursuant to sections 412. 60( a) and
412. 60( f)( 3), and consequently exempt from disclosure. Accordingly, because there does not yet
exist a final action to be made public with respect to those licensees, DCFS did not violate FOIA
by withholding their names pursuant to section 7( 1)( a). 3

Finally, with respect to licensees who relinquished their licenses in the identified
time period, Ms. Espinosa argued that a relinquishment is treated as a final action equivalent to
suspension or revocation because a licensee seeking reinstatement of his or her relinquished
license must follow the same procedure as someone whose license had been revoked or
suspended. Although the practical consequence of relinquishing a license may be the same as
having a license suspended or revoked, relinquishing a license involves a different process than
the Board issuing a " final administrative decision" on suspension or revocation. Section 412. 20
defines " relinquishment" as " a voluntary surrender to OCWEL of the direct child welfare service
employee license by the licensee." Section 412.40( g) ( 89 Ill. Adm. Code § 412. 40( g), last
amended at 39 I11. Reg. 7609, effective May 15, 2015) outlines the process for relinquishing a
license, and section 412. 60( e)( 3)( A) ( 89 I11. Adm. Code § 412. 60( e)( 3)( A), last amended at 39111.
Reg. 7609, effective May 15, 2015) permits a licensee to relinquish a license before and during
an administrative hearing, thereby withdrawing from the hearing process. To the extent that a
licensee obviates the need for a final administrative action by voluntarily relinquishing his or her
license, there is no record of a final administrative action that can be released under section
412. 60( f)(3). Accordingly, DCFS did not violate FOIA by withholding the names of those
licensees from the record it furnished Ms. Espinosa.

Section 7. 5( h) of FOIA

According to section 412. 60( b) of title 89 of the Administrative Code ( 89 Ill.

Adm. Code § 412. 60( b), last amended at 39 Ill. Reg. 7609, effective May 15, 2015), the DCFS
Office of the Inspector General " shall investigate formal complaints made to the Board regarding
the actions of any person holding or applying for" a direct child welfare service employee
license. Therefore, DCFS argues, any investigative records that are not treated as confidential
pursuant to the administrative rules were properly withheld from Ms. Espinosa pursuant to
section 7. 5( h) of FOIA. That section exempts from disclosure "[ i] nformation the disclosure of
which is exempted under the State Officials and Employees Ethics Act [( SOEEA)], and records
of any lawfully created State or local inspector general' s office that would be exempt if created
or obtained by an Executive Inspector General' s office under that Act." ( Emphasis added.)
Section 20- 95( d) of the SOEEA ( 5 ILCS 430/ 20- 95( d) ( West 2018)) provides:

Because we have determined that records documenting the names of licensees with " pending
charges" are exempt from disclosure pursuant to section 7( 1)( a), it is not necessary to address DCFS' s argument that
those records are also exempt from disclosure pursuant to section 7( I)( f) of FOIA.
Ms. Ana Espinosa
Mr. Bret Angelos
August 12, 2019
Page 7

Unless otherwise provided in this Act, all investigatory

files and reports of the Office of an Executive Inspector General,
other than monthly reports required under Section 20- 85, are
confidential, are exempt from disclosure under the Freedom of
Information Act, and shall not be divulged to any person or
agency, except as necessary ( i) to a law enforcement authority, ( ii)
to the ultimate jurisdictional authority, ( iii) to the Executive Ethics
Commission, ( iv) to another Inspector General appointed pursuant
to this Act, or ( v) to an Inspector General appointed or employed

by a Regional Transit Board in accordance with Section 75- 10.

Emphasis added.)

The DCFS OIG was created pursuant to section 35. 5 of the Children and Family
Services Act ( 20 ILCS 505/ 35. 5 ( West 2018)) " to conduct investigations into allegations of or
incidents of possible misconduct, misfeasance, malfeasance, or violations of rule, procedures, or
laws by any employee foster parent, service providers, or contractor" of DCFS. Therefore, the
investigatory files and reports of the DCFS OIG concerning charges brought against licensees
are exempt from disclosure pursuant to section 7. 5( h) of FOIA.

Despite the fact that DCFS described the list furnished to Ms. Espinosa as created
by the Child Welfare Employee Licensure Administrator, and not by the OIG, DCFS argues that
section 7. 5( h) permits the redactions made to that document because "[ a] ll the licensure actions
asked about in the FOIA request involved DCFS Inspector General investigations."' We

disagree. Section 20- 95( d) of the SOEEA permits withholding of "investigatory files and
reports" of an office of an executive inspector general. The list is neither and, as discussed
above, several names on the list are individuals who have had their licenses suspended or
revoked pursuant to " final administrative action" of the Board. Although these individuals may
have been the subject of an investigation by the DCFS OIG prior to the administrative hearings
concerning the status of their licenses, records relating to those hearings, including the final
administrative decision issued by the Board, are not " investigatory files and reports" of the
DCFS OIG. Accordingly, section 7. 5( h) of FOIA does not permit DCFS to redact information
from the licensure action list.

Letter from Bret Angelos, DCFA FOIA Officer, to Leah Bartelt, Assistant Attorney General,
Public Access Bureau, at 3 ( May 23, 2019).
Ms. Ana Espinosa
Mr. Bret Angelos
August 12, 2019
Page 8

Section 7( 1)( b) of FOIA

Finally, DCFS asserted in both its letter to Ms. Espinosa and its response to the
Request for Review that the redactions are permitted by section 7( 1)( b) of FOIA, which exempts
from disclosure "[ p] rivate information, unless disclosure is required by another provision of this
Act, a State or federal law or a court order." Section 2( c- 5) of FOIA ( 5 ILCS 140/ 2( c- 5) ( West
2018)) 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.

The Attorney General has issued a binding opinion concluding that names are not
private information" under this definition. Ill. Att'y Gen. Pub. Acc. Op. No. 18- 002, issued
February 14, 2018, at 4 ( names of municipal water account holders not exempt from disclosure
pursuant to section 7( 1)( b); see also Lieber v. Board of Trustees of Southern Illinois University,
176 Ill. 2d 401, 412 ( 1997) ( names are " basic identification" and "[ w] here the legislature
intended to exempt a person' s identity from disclosure, it [ has done] so explicitly." Nor does the
definition of private information include case numbers and the status of license actions, and
DCFS has not set forth an argument as to how this information redacted from the list fits in that
definition. Accordingly, DCFS has not met its burden of demonstrating that this information is
exempt from disclosure pursuant to section 7( 1)( b) of FOIA.

For the reasons stated above, this office requests that DCFS provide Ms. Espinosa
with the names and case numbers of licensees who have had their Direct Child Welfare
Employee Licenses revoked or suspended in the time period outlined in the FOIA request.
Alternatively, DCFS may provide Ms. Espinosa with copies of the Board' s final administrative
actions in any all matters during the responsive time period in which the Board suspended or
revoked a license. We note that Ms. Espinosa' s FOIA request also sought information describing
the " charges" brought against the licensees. To the extent that the Board's final administrative
action orders or determinations describe those charges, that information is not exempt from
FOIA.
Ms. Ana Espinosa
Mr. Bret Angelos
August 12, 2019
Page 9

The Public Access Counselor has determined that resolution of this matter does
not require the issuance of a binding opinion. If you have any questions, you may contact me at
312) 814- 6437. This file is closed.

Very truly yours,

LEAH BARTELT

Assistant Attorney General

Public Access Bureau

57946 f 71a proper improper 71b improper 75h improper sa