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NAVIGATING OMA & FOIA:

THE CHANGING LANDSCAPE

PRESENTERS

Attorneys

Scott F. Uhler

Mallory A. Milluzzi

Carmen P. Forte, Jr.

20 N. Wacker Drive, Suite 1660, Chicago, Illinois 60606 (312) 984-6400

15010 S. Ravinia Avenue, Suite 10, Orland Park, Illinois 60462 (708) 349-3888

Scott F. Uhler Mallory A. Milluzzi Carmen P. Forte

sfuhler@ktjlaw.com mamilluzzi@ktjlaw.com cpforte@ktjlaw.com

(312) 984-6421 (312) 984-6458 (312) 984-6435

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NAVIGATING OMA & FOIA: THE CHANGING LANDSCAPE

The ready access of the public to a complaint process and the more routine oversight of

compliance by public bodies with the Freedom of Information Act and the Open

Meetings Act by the Illinois Attorney General has resulted in a steady stream of regular

interpretations of the requirements of the Acts. Remaining current and informed

regarding these developments is important to the meeting process followed by public

officials, as well as in understanding the obligations of the public body regarding

disclosure of public documents. We set forth below certain of the most important

considerations or issues which tend to recur for public bodies under the Acts. We will

discuss many of the most recent decisions issued by the Office of the Attorney General

which affect your municipal practices, to add to your knowledge and understanding of

the required procedures for public bodies as you conduct the business of your

municipality.

OPEN MEETINGS ACT

NOTICE OF MEETING, CONDUCTING PROPER OPEN MEETING

What is a “Meeting”?

Can a board (involving a majority of a quorum) get together socially before or

after its meeting?

Rule: Section 1.02 of the Open Meetings Act provides that a covered meeting is a gathering of a

majority of a quorum of the members of a public body for the purpose of discussing public

business.

Generally, yes, a social gathering is not a violation of the Act. The casual, unplanned,

unintended discussion of public business at a social gathering involving a quorum or more of the

public body is human nature and is clearly not intended to evade the requirements of the Act.

This should not be considered a meeting or a violation of the Act. We would caution however,

that it is the position of the Illinois Attorney General that:

“… although a gathering may not be held for the purpose of discussing public business at

the outset, the gathering is subject to conversion to a meeting at any point. Thus, for

example, at the point that a dinner party turns to a discussion of public business upon

which the attention of the requisite number of public body members present is focused,

the gathering becomes a “meeting” for purposes of the Act.” GUIDE TO THE OPEN

MEETINGS ACT (2004), p. 19, Illinois Attorney General.

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Can we ever hold a meeting outside our Village or City? In the morning? On a

weekend or holiday? At a private residence? A few miles outside the Village or

City?

Rule: A public body is required to hold their meeting at a specific time and place that is

convenient and open to the public.

The body cannot hold a meeting on a public holiday, unless that is when a regular meeting is

otherwise scheduled to be held. In considering whether particular meetings were “open and

convenient to the public”, the Attorney General has concluded that a meeting convened by a

school superintendent at her home did not meet this requirement, because holding a meeting at a

such a location could result in the public being uncomfortable going to the private residence of

public official (see PAC Opinion 12-008 – meetings can be held in “such an ill-suited,

unaccommodating, unadvantageous place that members of the public, as a practical matter, would

be deterred from attending it; an open meeting in an inconvenient place violates the Act”), nor

did holding a meeting 26 miles outside the jurisdiction, at the office of the attorney for the public

body (to save $) meet this requirement under OMA (see PAC Opinion 13-014). A public body

must also provide adequate space to accommodate those wishing to attend a meeting or the

meeting would not be considered “open and convenient to the public”. Gerwin v Livington

County Board, 345 Ill.App.3d 352 (2003)

What if no elected officials show up at a regularly scheduled meeting?

Rule: Generally, the vote of a majority of those present (with a quorum being required to hold a

meeting) at the meeting is required to take an action or make a decision for the body. The issue

becomes whether there are matters that are time sensitive and important to continue, that need to

be heard at the very next meeting (14 days later), and notice cannot be properly published again.

One practical option that protects all of the rights involved would be to post a written notice on

the front door of the meeting location (and on the website) continuing the meeting and matters on

the agenda to the next regular meeting, as well as indicating in the agenda posting of the meeting

48 hours ahead of time that the meeting was continued from its regularly scheduled time (two

weeks prior) to that new, continued date. If there were any specific parties that the City or

Village knows would be attending the meeting or planned to attend (e.g the petitioner on a zoning

matter), they should also be notified individually. A public body is also required to supply

copies of the notice of its regular meetings, and of the notice of any special, emergency,

rescheduled or reconvened meeting, to any news medium that has filed an annual request for such

notice. Such media is to be given the same notice of any rescheduled or reconvened meetings in

the same manner as is given to members of the body (such news medium must have given the

public body an address or telephone number within the territorial jurisdiction of the public body

at which such notice may be given). 5 ILCS 120/2.02(b)

When are we holding an “electronic” meeting?

Rule: Section 1.02 of the Act provides that a covered meeting is a gathering of a majority of a

quorum of the members of a public body for the purpose of discussing public business. The

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“gathering” includes “in-person or by video or audio conference, telephone call, electronic means

… or other means of contemporaneous interactive communication …” The term “gathering”

therefore covers a “gathering” in cyberspace, meaning that contemporaneous communications

among and between a majority of a quorum of members of a public body about public business,

for example, by phone, emails or text, would be covered by the Open Meetings Act (and would

be a violation as it would not be open and convenient to the public). The Attorney General has

also opined and appellate court confirmed that public officials are required to remain “public” in

their communications during a meeting by noting that two public officials texting or emailing

each other during an open meeting is a violation of OMA. Although using their personal phones,

the alderman were in the presence of a quorum of the public body, at a regular meeting of the

City Council, conducting public business. City of Champaign v Lisa Madigan, 2013 IL.App (4th)

120662

Should I disable the “Reply All” function in my email?

Rule: We are all guilty of hitting “Reply” too quickly at times. For public officials there is the

additional consideration that by hitting the “reply all” function you may be entering the

“electronic” meeting space referenced above.

Conducting the Meeting

Can an audience member demand a copy of your materials in order to follow

along during the Board or Council meeting?

Rule: There is no requirement that the board packet or any materials in the packet be made

publicly available before or during the meeting. Copies of the materials can be requested under

FOIA after a meeting (and, if not exempt) and would be required to be provided. See e.g. Illinois

Open Meetings Act, Frequently Asked Questions for Public Bodies, Ill.Atty.Gen., p. 4 (January 8,

2013)

Meeting agenda:

Do we have to have one? Can we change it without 48 hours’ notice?

Rule: Section 2.02(a) of the Act provides that “an agenda for each regular meeting shall

be posted at the principal office of the public body and at the location where the meeting

is held at least 48 hours in advance of the holding of the meeting (and on the website)”.

The purpose of the Act is that “citizens shall be given advance notice of and the right to

attend all meetings at which any business of a public body is discussed or acted upon in

any way.” The Act also states “[t]he requirement of a regular meeting agenda shall not

preclude the consideration of items not specifically set forth in the agenda.” With that

said, it appears that amending an agenda is proper regarding an item that is only for

discussion, to clarify a matter that is an action item or to remove an item is allowed up to

the time of the meeting. (See PAC Opinion 14-003)

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Can matters be discussed which are not on the agenda?

Rule: Section 2.02(a) of the Act provides that “an agenda for each regular meeting shall

be posted at the principal office of the public body and at the location where the meeting

is held at least 48 hours in advance of the holding of the meeting (and on the website)”.

The Act goes on however to state: “The requirement of a regular meeting agenda shall

not preclude the consideration of items not specifically set forth in the agenda.” Any

matter can be raised at a regular public meeting for discussion, whether on the agenda or

not, as long as no action or final action is taken based on the discussion.

Can board go into closed session if not on agenda?

Rule: Yes. Unless the meeting is a special meeting. Then only the subject of the special

meeting is appropriate for closing session. Otherwise, a public body can into closed

session at any meeting, for any proper closed session purpose. No final action can be

taken coming out of closed session, unless it was properly included in the meeting

agenda.

If we propose to take an employment action to discipline or dismiss an

employee, does the employee have to be named in the meeting agenda?

Rule: It depends. Setting forth an employee’s name in a public agenda document posts

it on the web for the world to see. If the employee’s name is listed on the agenda in the

context of “discipline or dismissal of _______”, such a reference has potential profound

impact on that employee’s reputation and employment. The Act itself only specifically

requires the following: “Any agenda … shall set forth the general subject matter of any

resolution or ordinance that will be the subject of final action at the meeting.” 5 ILCS

120/2.02(c) If the action has already been decided and the action will simply be finalized

by resolution or ordinance, the Board or Council has to decide whether to name the

employee in the resolution and/or agenda. At least one court has determined that the

employee need not be named in the agenda, and can be named in the resolution without

announcing the individual’s name publicly. That matter involved a final vote on

employment matters involving a group of teachers. The school board voted not to renew

the contracts of several teacher without specifically naming them. The matter was listed

on the meeting agenda as “Recommendations for Employment and Dismissal”. The

board motion was to “accept the recommendation to release fourth year full-time

probationary teachers at the end of the 2004-2005 school year as presented on the

attached.” The “attached” was the written resolution naming the teachers. In that matter

the court found that the board had met the “public recital” requirements with its motion

and the description in the agenda, relying on the language of the Act that the board

was required to recite “ ‘the nature of the matter being considered’ ” and “ ‘inform

the public of the business being conducted.’ ” 5 ILCS 120/2(e). Roller v. Glen

Ellyn School District No. 41, 2006 WL 200886 (N.D. Ill. 2006). (But see PAC

Opinion13-016, September 24, 2013) (The Attorney General concludes that a public

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body cannot take final action to dismiss a public employee without identifying that

person by name.)

If the action will occur by motion, we do not believe the employee would need to be

listed in the agenda, but may have to be named in the motion. If the action will be

discussed at the meeting, to determine what course of action the Board or Council will

take, we do not believe the employee’s name needs to be set forth in the agenda. (See

PAC Opinion 13-016, September 24, 2013). Section 2.02(a) of the Act provides that

“an agenda for each regular meeting shall be posted at the principal office of the public

body and at the location where the meeting is held at least 48 hours in advance of the

holding of the meeting (and on the website)”. The Act goes on however to state: “The

requirement of a regular meeting agenda shall not preclude the consideration of items not

specifically set forth in the agenda.” Any matter can be raised at a regular public meeting

for discussion, whether on the agenda or not, as long as no action or final action is taken

based on the discussion. Further the Act specifically authorizes closed session discussion

regarding the “appointment, employment, compensation, discipline, performance, or

dismissal of specific employees of the public body”. 5 ILCS 120/2(c)(1) Any final

action of the Board or Council must be preceded by a public recital of the nature of the

matter being considered and other information that will inform the public of the business

being conducted. 5 ILCS 120/2(e) We would note that the disclosure of performance

evaluations under FOIA is prohibited by law (820 ILCS 40/11) so that care should likely

be taken to avoid such disclosure under the Open Meetings Act when addressing

employment matters. Finally, the minutes of a board meeting need not name the

employee, given that the minutes are generally posted on the website of the public body.

Public comment (must provide an opportunity for members of the public to

address public officials at open meetings. 5 ILCS 120/2.06(g). Can municipality

require audience member:

To provide name.

Rule: Public comment is required, but can be subject to the rules established and

recorded by the public body. (See PAC Opinion 14-009 (September 4, 2012)) Public

bodies can generally adopt reasonable “time, place and manner” regulations which are

necessary to further a significant governmental interest. A public body can have rules to

maintain decorum at public meetings and to assure that the meetings can be efficiently

conducted. The Attorney General notes the primary purpose of rules of procedure under

Act are to accommodate a speaker’s statutory right to address the public body while

ensuring that order and decorum are maintained at public meetings. See Rana

Enterprises, Inc. v City of Aurora, 630 F.Supp.2d 912 (N.D.Ill. 2009)

This may be a reasonable rule, to ask for the speaker’s name in order for the municipality

to be able to contact the person and may seem innocuous. Under the standards set forth

by the Attorney General, to provide one’s name is a decision that is left up to the member

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of the public however, not the Board or Council. The rule is hard to justify under the

standards articulated by the Attorney General.

To provide address.

Rule: Public comment is required, but can be subject to the rules established and

recorded by the public body. Public bodies can generally adopt reasonable “time, place

and manner” regulations which are necessary to further a significant governmental

interest. Public bodies can also have rules to maintain decorum at public meetings and to

assure that the meetings can be efficiently conducted. The Attorney General notes the

primary purpose of rules under the Act are to accommodate a speaker’s statutory right to

address the public body while ensuring that order and decorum are maintained at public

meetings. See, Rana Enterprises, Inc. v City of Aurora, 630 F.Supp.2d 912 (N.D.Ill.

2009) The Attorney General has concluded that requiring a speaker to provide their

address is inconsistent with and a violation of the Act, noting that such a requirement

does not meet these standards and that requiring a person to complete their home address

prior to speaking could have a “chilling effect” on individuals who wish to speak at

meetings. PAC Opinion 14-009 (September 4, 2012) The Attorney General noted that

the language of the Act provides “[a]ny person shall be permitted an opportunity to

address public officials” (5 ILCS 120/2.06(g)) and that therefore a person’s right to

comment at an open meeting cannot be conditioned on where that person resides. (See

PAC Opinion 14-009 (September 4, 2012))

To provide their affiliation or business.

Rule: Public bodies can generally adopt reasonable “time, place and manner”

regulations which are necessary to further a significant governmental interest. Public

bodies can have rules to maintain decorum at public meetings and to assure that the

meetings can be efficiently conducted.

While this information can be requested, similar to the request for an address, it would

generally not meet the reasonable time, place and manner regulatory authority nor be

needed to maintain decorum or efficiency at the meeting. Public bodies can request, but

it is not likely they can require, this information. (See 2016 PAC Opinion Letter 45349

and PAC Opinion 14-009 (September 4, 2012))

To provide notice prior to the meeting that they wish to speak, audio

record or provide the content of their comment.

Rule: Any person may record the proceedings at meetings required to be open by the Act

by tape, film or other means. The authority holding the meeting shall prescribe

reasonable rules to govern the right to make such recordings. 5 ILCS 120/2.05 The

Attorney General has concluded that a requirement that a person who would like to

record an open meeting must notify the clerk in advance of the meeting clearly places a

burden on people who want to exercise their right under the Act and results in restricting

the ability to record open meetings, without any corresponding safety purpose or need to

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prevent disruption. (See PAC Opinion 12-010 (June 5, 2012)) Public bodies can

generally adopt reasonable “time, place and manner” regulations which are necessary to

further a significant governmental interest. A public body can have rules to maintain

decorum at public meetings and to assure that the meetings can be efficiently conducted.

To limit comments to agenda items or matters germane to the agenda.

Rule: Public comment is required, but can be subject to the rules established and

recorded by the public body. Public bodies can generally adopt reasonable “time, place

and manner” regulations which are necessary to further a significant governmental

interest and can adopt rules to maintain decorum at public meetings and to assure that the

meetings can be efficiently conducted.

A rule limiting comment of a member to matters germane to items listed on the agenda

was found by the Attorney General to be improper and in violation of the Act. The

Attorney General has concluded that where the members of a Town Council were not

limited to items on the agenda in their discussions as a Council, and therefore applying

such a rule to the public would impermissibly restrict the right to public comment under

the Act. (See 2016 PAC Opinion Letter 45349)

To limit public comment to residents of the municipality.

Rule: Public comment is required, but can be subject to the rules established and

recorded by the public body. Public bodies can generally adopt reasonable “time, place

and manner” regulations which are necessary to further a significant governmental

interest. Public bodies can also adopt rules to maintain decorum at public meetings and

to assure that the meetings can be efficiently conducted. The Attorney General noted that

the language of the Act provides “[a]ny person shall be permitted an opportunity to

address public officials” (5 ILCS 120/2.06(g)) and that therefore a person’s right to

comment at an open meeting cannot be conditioned on where that person resides. (See

PAC Opinion 14-009 (September 4, 2012))

Limit audience member to one comment per meeting or topic.

Rule: Public comment is required, but can be subject to the rules established and

recorded by the public body. Public bodies can generally adopt reasonable “time, place

and manner” regulations which are necessary to further a significant governmental

interest. A public body can have rules to maintain decorum at public meetings and to

assure that the meetings can be efficiently conducted.

A rule limiting comment of a member of the public to one comment per meeting or topic

was found by the Attorney General to be unreasonably restrictive and in violation of the

Act. The public body did not have any evidence to substantiate the purported purpose of

the rule presumably to avoid being overwhelmed at its meetings by a select few audience

members monopolizing the meeting time and topics. (See 2016 PAC Opinion Letter

45349)

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On a related issue, the Attorney General found that a County Board rule requiring a

member of the public to make a written request to speak at least 5 days in advance notice

of a meeting was a violation of the Act. The public retains a statutory right to address the

Board or Council at an open, public meeting, and the Attorney General found no

relationship between the advance notice requirement and the furtherance of any

significant governmental interest. (See PAC Opinion 14-012, September 30, 2014)

The more common practice of municipalities has been to adopt a rule of meeting

procedure regarding the referral of questions or issues, at the discretion of the Board or

Council, to be addressed to Village or City staff to address more thoroughly and

accurately after the meeting.

Wait until end of meeting to allow public comments.

Rule: This is an untested practice. The concern could be that the public does not have an

opportunity to provide their input or feedback on an item prior to Board action on the

item. A public body could address this issue with two public comment periods; one for

items on agenda and one generally at end of meeting.

Limit comments to 5 minutes.

Rule: Public comment is subject to the rules established and recorded by the public

body. Public bodies can adopt a rule to prescribe time limits for public comment.

Wright v Anthony, 733 F.2d 575 (8th Cir. 1984)(time limit for speakers at a public hearing

served significant governmental interest in conserving time and ensuring that others had

opportunity to speak); (See also PAC Opinion 14-009, September 4, 2012))

To be civil and polite.

Rule: Public comment is subject to the rules established and recorded by the public

body. Public bodies can generally adopt reasonable “time, place and manner”

regulations which are necessary to further a significant governmental interest. A public

body can have rules to maintain decorum at public meetings and to assure that the

meetings can be efficiently conducted. See, Timmon v Wood, 633 F. Supp.2d 453

(W.D.Mich. 2008); (See PAC Opinion 14-009 (September 4, 2012))

A Board or Council should be careful in “censuring” a public member for simply voicing

criticism however. In Mnyofu v Rich Township H.S. District 227, 2016 WL 1319736

(N.D. Il. 2016) the school board was found to have done just that when it attempted to

enforce its policy encouraging individuals who comment at their meetings to “refrain

from mentioning the names of students and employees”. In that matter, when a member

of the audience who was addressing the board began criticizing individuals by name, the

board cut off his microphone and called for security/police to remove the audience

member from the meeting. The court found the board violated the speaker’s 1st

Amendment rights by their action, stating that the right to criticize public officials is

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well-established. While reasonable time, place and manner regulations are permissible, a

board cannot impose content-based regulations to limit speech at an open public meeting.

Regulate or impose conditions without rules.

Rule: Public comment is subject to the rules established and recorded by the public

body. A public body cannot rely on “custom and practice” to impose a “rule” or

requirements for public comment. (See PAC Opinion 14-009)

Voting:

What does it mean to “sufficiently inform the public of the nature of the

business being conducted” before a vote?

Rule: “No final action may be taken at a closed meeting. Final action shall be preceded

by a public recital of the nature of the matter being considered and other information that

will inform the public of the business being conducted.” 5 ILCS 120/2(e) When a

separation agreement with its Superintendent was proposed for a school board vote, an

audience member complained that the vote to approve violated OMA without a

discussion or summary of the terms of the agreement, including disclosure of a lump sum

“settlement” payment to the Superintendent or the reasons for the termination of the

Superintendent’s employment. In that matter the Board posted an agenda with the

approval of the separation agreement included, as well as a link to a copy of the actual

agreement. At its meeting to consider approval, the following motion was made to

approve: “I have item 9.1, approval of a resolution regarding the separation agreement.

The board president recommends that the Board of Education of Springfield School

District No. 186 vote to approve the separation agreement and release between Dr.

Walter Milton, Jr., and the Board of Education.” The Board then approved the

agreement by a vote of 6-1. The Illinois Attorney General concluded such conduct

violated the Open Meetings Act by failing to properly recite the “nature of the matter

being considered,” and for failing to “explain the significance of the matter” being

considered by the Board. The Attorney General concluded that the “key terms” of

matters before a public body must be publicly recited to comply with the Act. The

Illinois Supreme Court in that matter ultimately concluded otherwise, holding that a

public body complies with the Act by reciting the nature of the matter under

consideration with sufficient detail to identify the particular transaction or issue, but is

not required to go further and provide an explanation of its “key terms” or its

significance. The Court concluded the nature of the matter could be recited in

nonspecific terms, such as “approval of a loan, a contract, a purchase, a policy, or a

resolution.” The Court found that such disclosure met the basic standard for compliance

with the Act in providing the information needed to inform the public of the specific

nature of the business being conducted. Board of Education of Springfield School

District 186 v. Illinois Attorney General, 2017 IL 120343. The Act itself only

specifically requires the following: “Any agenda … shall set forth the general subject

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matter of any resolution or ordinance that will be the subject of final action at the

meeting.” 5 ILCS 120/2.02(c)

Addressing this issue in another context, an Illinois appellate court reviewed the vote of

a municipality to approve the following two items on its agenda “X. ‘Board Approval of

Lease Rates’ and ‘XI. Board Approval of Revised Covenants’”, without further

discussion or explanation before voting. The court found this vote did not meet the

standard for a public recital of the nature of the matter being conducted … that would

inform the public of the business being conducted. The court stated that while a detailed

explanation of the significance or impact of the proposed final action is not necessary, a

public body is required to provide enough information to reasonably inform the public of

the nature of the matter being considered. Allen v Clark County Park District Board of

Commissioners, 2016 IL App. 150963 The court noted the public recital did not provide

the public any of the key terms of the lease agreement or covenants, that the public was

uninformed of what was being leased and that the recital did not indicate who was leasing

the property or for how long or how the Park District was going to be compensated.

Can matters be raised for voting under “New Business” or “Old Business”?

Rule: Same as above. Although the above test to comply with the act is basic

information about the nature of the matter under consideration with enough detail to

identify the transaction or issue, new or old business is never adequate as a voting item.

If we take an employment action to discipline or dismiss an employee,

does the employee have to be named prior to the vote in open session?

Rule: “No final action may be taken at a closed meeting. Final action shall be preceded

by a public recital of the nature of the matter being considered and other information that

will inform the public of the business being conducted.” 5 ILCS 120/2(e) According to

the Attorney General, the name of the employee being disciplined or dismissed must be

shared as part of the final action. When a school board came out of a closed session

discussion of the employment of a specific employee and voted “to approve the

recommendation for dismissal of Employee A due to performance concerns”, such a

motion failed to meet the requirements of the Act for final action. (See PAC Opinion13-

016, September 24, 2013) The Attorney General concluded that a public body cannot

take final action to dismiss a public employee without identifying that person by name.

A public body can consider disciplinary actions in closed session as long as the final

action is taken at an open meeting. The Attorney General, relying upon the decision of

the Illinois appellate court in Haight v Board of Education of Community Unit District

205, 29 Ill.App.3d 48 (1975) has concluded that although the privacy rights of an

employee are a consideration:

“OMA does not permit a board to decline to reveal the identity of employees

who are dismissed from public service in order to avoid embarrassment. The

public is entitled to information regarding the performance of public employees,

particularly when their performance falls so far below accepted standards as to

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warrant discipline or discharge.” (See PAC Opinion 13-016, September 24,

2013, p. 5.)

In a separate matter involving a final vote on employment matters involving a group of

teachers, a school board voted not to renew the contracts of several teacher without

specifically naming them. The matter was listed on the meeting agenda as

“Recommendations for Employment and Dismissal”. The board motion was to “accept

the recommendation to release fourth year full-time probationary teachers at the end of

the 2004-2005 school year as presented on the attached.” The “attached” was the written

resolution naming the teachers. In that matter the court found that the board had met the

“public recital” requirements with its motion and the description in the agenda, relying on

the language of the Act that the board was required to recite “ ‘the nature of the matter

being considered’ ” and “ ‘inform the public of the business being conducted.’ ” 5 ILCS

120/2(e). Roller v. Glen Ellyn School District No. 41, 2006 WL 200886 (N.D. Ill. 2006).

What do we need to remember for a board or council member to participate

electronically?

Rule: The public body should have a policy allowing electronic participation. A member of the

public body can then attend a meeting by phone or video conference if a quorum of the body is

physically present at the meeting when the member cannot attend due to: (1) personal illness or

disability; (2) employment purposes or business for the public body; or (3) a family or other

emergency. Unless advance notice is not possible or impractical, a member wanting to attend

electronically is to notify the clerk before the meeting. 5 ILCS 120/7

Can we keep meeting past midnight? Can we stop our meeting at a reasonable

hour, e.g. 9:00 p.m. even if business has not been completed or we are in the

middle of public comment with a packed audience?

Rule: While conceivably at some point (early morning hours) a meeting can evolve into one that

is no longer at a “convenient time and place”, a meeting can go long, or can be adjourned if it is

going too long, at the discretion of the public body.

Going Into Closed Session (or not)

Do we have to give advance notice of a closed session – must it be on the agenda?

Rule: No, the public body may vote to conduct a closed meeting at any open meeting of a public

body without additional notice under Section 2.02 of the Open Meetings Act. However, many

municipalities always include Closed Session as a placeholder on an agenda.

Do we need a quorum in a closed session?

Rule: Yes, a public body may hold a meeting closed to the public, or close a portion of a meeting

to the public, upon a majority roll call vote of a quorum present, taken at a meeting open to the

public for which notice has been given as required by the Act. 5 ILCS 120/2a.

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Can we go into closed session to discuss:

“Personnel”?

Rule: No, the purpose needs to be more specific. With regard to personnel, the Act allows

for discussion on “...the appointment, employment, compensation, discipline, performance or

dismissal of specific employees of the public body or legal counsel for the public body,

including hearing testimony on a complaint lodged against an employee of the public body or

against legal counsel for the public body to determine its validity.” 5 ILCS 120/2(c)(1).

Matters that could result in or lead to litigation?

Rule: The purpose needs to be more specific. With regard to litigation, the Act allows for

discussion on “…litigation, when an action against, affecting or on behalf of the particular

public body has been filed and is pending before a court or administrative tribunal, or when

the public body finds that an action is probable or imminent, in which case the basis for the

finding shall be recorded and entered into the minutes of the closed meeting. 5 ILCS

120/2(c)(11).

To discuss properties the Village owns and what to do with them.

Rule: The Act allows discussion on “…the purchase or lease of real property for the use of

the public body, including meetings held for the purpose of discussing whether a particular

parcel should be acquired, and the setting of a price for sale or lease of property owned by the

public body.” 5 ILCS 120/2(c)(5).

Can we vote in a closed session?

Rule: The taking of final action at any closed meeting is prohibited. 5 ILCS 120/2(e). Final

action taken at a closed meeting may be voided by a court. 5 ILCS 120/3.

Can we take an informal poll or ask for “consensus” in a closed session?

Rule: Informal voice polls can be taken, presuming that they are not utilized as a final action of

the Board. There can be no secret ballots in closed meetings. WSDR, Inc. v. Ogle County, 100 Ill.

App. 3d 1008 (2d Dist. 1981).

Can we later vote on a matter that we discussed in closed session without having

further discussion on the matter in an open session?

Rule: Yes. As long as a proper motion is made in the open session, with the opportunity for

Board discussion before a formal vote occurs. The Act requires that final action shall be preceded

by a public recital of the nature of the matter being considered and other information that will

inform the public of the business being conducted. 5 ILCS 120/2(e).

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May we censure one of our board members for disclosing confidential

information from a closed session?

Rule: There is nothing in the law giving a school board the power to censure or otherwise levy

sanctions on one of its members for any reason. The attorney general issued an opinion to this

effect in January 1991 (No. 91-001).

What are the requirements for taking minutes of closed sessions?

Rule: All public bodies shall keep written minutes of all their meetings, whether open or closed,

and a verbatim record of all their closed meetings in the form of an audio or video recording.

Such minutes shall include, but need not be limited to:

o the date, time and place of the meeting;

o the members of the public body recorded as either present or absent and whether the

members were physically present or present by means of video or audio conference; and

o a summary of discussion on all matters proposed, deliberated, or decided, and a record

of any votes taken. 5 ILCS 120/2.06.

Can the public FOIA closed session minutes?

Rule: Minutes of meetings closed to the public are exempt under Section 7(1)(l) of FOIA unless

the public body determines that it is no longer necessary to protect the public interest or the

privacy of an individual by keeping them confidential. 5 ILCS 120/2.06(f).

Can we ever destroy the audio-recording of a closed session?

Rule: The verbatim record may be destroyed no less than 18 months after the completion of the

recorded meeting, but only after:

o the public body approves the destruction of a particular recording; and

o the public body approves minutes of the closed meeting that meet the written minutes

requirements above. 5 ILCS 120/2.06(c).

Miscellaneous

What if we realize or discover after a meeting that we violated the Open Meetings

Act?

Rule: It depends on what the violation was, but to the extent possible, redo the action while

following the Open Meetings Act. For example, if an action was taken at a meeting without being

listed on the agenda, add the item to the next agenda for formal approval. Always make sure to

not repeat the violation going forward.

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FREEDOM OF INFORMATION ACT

ISSUES FOIA CREATES FOR MUNICIPALITIES

Responding to Requests

How can we ease some of the burdens of FOIA?

Rule: While there is no way to make there less FOIA requests, there are some key things

municipalities can do. First, to the extent possible, place commonly requested documents on the

municipality’s website. A public body is not required to copy a public record that is published on

the public body's website. 5 ILCS 140/8.5. Second, the more documents scanned into the

municipality’s system will make it easier to search and locate and will decrease copying time.

Finally, use the limited tools available under FOIA, such as unduly burdensome, voluminous

requests and recurrent requestors to narrow large requests.

What tools do we have to address FOIA requests that ask for “any and all records”

Rule: This request is technically vague and unduly burdensome, as it does not ask for a specific

record and would require the municipality to search every single record type it maintains. You

can communicate with the requestor about which specific types of records it seeks. If you believe

you are providing the records they want, provide the records, but consider adding the following

language:

This request is vaguely worded and does not specify what records you are seeking. Under FOIA,

a request to inspect or copy must reasonably identify a public records and not general data,

information or statistics. Chicago Tribune Co. v. Department of Financial and Professional

Regulation, 2014 IL App (4th) 130427, ¶ 33, (2014). A FOIA request "reasonably describes

records if 'the agency is able to determine precisely what records are being requested.'”

Kowalczyk v. Department of Justice, 73 F. 3d 386, 388 (D.C. Cir. 1996) (quoting Yeager v. Drug

Enforcement Administration, 678 F.2d 315, 326 (D.C. Cir. 1982)). Public bodies are not required

to search beyond the four corners of a FOIA request, nor are they required to divine the

requester’s intent. American Chemistry Council, Inc. v. U.S. Department of Health and Human

Services, 922 F. Supp. 2d 56, 62 (D.D.C. 2013). To the extent the Village can interpret your

request, it has enclosed the enclosed records.

What tools can we use to respond to large FOIA requests?

Rule: Large requests can either be voluminous or unduly burdensome. If a request asks for more

than five categories of records or if the responsive records total more than 500 pages, the request

is voluminous under FOIA. 5 ILCS 140/2(h). If a request is voluminous, you can ask the person

to narrow the request within five (5) business days of receiving the request. If the requestor does

not narrow the request, you can charge them for time (over 8 hours) and for the records

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themselves (by the MB if electronic or by the page if paper copies). 5 ILCS 140/3.6. Voluminous

requests do not apply to media or not-for-profits.

Large requests that ask for all records in a category may also be unduly burdensome. 5 ILCS

140/3(g). The municipality must be able to articulate how responding to the request will unduly

burden the municipality and must give the requestor an opportunity to narrow the request. Id. If

the requestor refuses to narrow and/or the request continues to be unduly burdensome, the

municipality can deny the request. Id.

What do we do if the records are not stored at Village Hall, but are stored at our

attorney or engineer’s office?

Rule: Pursuant to Section 7(2) of FOIA, if a municipality has contracted with a company to

perform a government function on behalf of the municipality and the records requested directly

relate to that government function, then the records of that company are public records under

FOIA (unless otherwise exempt). Thus, you to timely reach out to any vendors or companies to

obtain records responsive to a FOIA request.

What do if we have destroyed the records requested in a FOIA Request?

Rule: FOIA does not require the retention of records, it only requires the production of public

records maintained by a public body. The retention of records is governed by the Local Records

Act. If the municipality does not have the public records because they were destroyed pursuant to

a Destruction Certificate issued by the Local Records Commissioner, then the response would be

“there are no responsive records” to the FOIA Request. A municipality should be prepared to

provide a copy of that Certificate to the Attorney General if there is an appeal.

What duties do we have to respond to requests meant for a Committee,

Commission or Board, such as the Board of Police and Fire, Board of Health or a

Library Board?

Rule: Unless the committee, commission or board is a separate legal entity, the municipality is

ultimately responsible for the records of its subsidiary bodies. Public Access Opinion 17-007.

However, the City can designate an employee of the subsidiary body to be a FOIA Officer for the

committee or board, and that person would be responsible for receiving and responding to FOIA

requests for the commission or board.

When is a request “unduly burdensome”

Rule: A request must unduly burden the operations of the public body. 5 ILCS 140/3(g). Each

case is unique but the courts and Attorney General apply a balancing test to determine whether

the public interest in disclosure of the requested records outweighs the burden of compliance on

the public body under Section 3(g) of FOIA. National Ass’n of Criminal Defense Lawyers v.

Chicago Police Department, 399 Ill. App. 3d 1 (1st Dist. 2015); Public Access Opinion 16-008.

The test determines (1) whether compliance is burdensome; (2) is there a way to narrow the

request; and (3) does the burden of the public body outweigh the public interest. The public body

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must demonstrate how responding the request would interfere with its operation if it had to

comply within the strict confines of FOIA.

What do we do when we get a request for “all emails” sent by an employee? What

if on a specific topic or development?

Rule: Analyze the request and its other parameters, such as time period, to determine whether the

request is voluminous or burdensome. However, just because the request seems unduly

burdensome, a municipality needs to do an initial search to confirm that a request is unduly

burdensome within the five (5) business days.

o What if a request asks for emails sent from a private email account?

Rule: According to the Attorney General, emails pertaining to the transaction of public

business are public records, even if they are sent from a private email account. Public

Access Opinion 16-006. The Attorney General found that an agency always acts through

its employees and officials and a found that a record does not lose public status just

because it is removed from the building. However, this opinion did not address the

Appellate Court decision of City of Champaign v. Madigan, which found that officials,

by themselves, are not public bodies under FOIA, and their communications on private

devices are not subject to FOIA unless they are convened as a public body. 2013 IL App

(4th) 120662. At minimum, the public body ask the applicable personnel to search their

e-mail accounts or devices in good faith and then provide the public body's FOIA officer

with any e-mails or other messages that they locate. Public Access Opinion 16-006.

However, the existence of public records on a private email account does not turn all

emails into public records. Emails that do not relate to the transaction of public business

are not public records and are not subject to FOIA.

What do we do if we get a request for text messages?

Rule: This has not been decided by the Attorney General or the Courts in a binding opinion.

However, the same analysis would apply as private email accounts. See FOIA Guide for Law

Enforcement , June 2017. If the phone used is a publicly issued electronic device, all messages

would be subject to FOIA because such a device would be “under the control of a public body.”

City of Champaign v. Madigan, 2013 IL App (4th) 120662. Again, the texts would have to relate

to the transaction of public business to be a public record under FOIA.

Denying or Withholding Records

What is our burden when denying or redacting information?

Rule: A municipality has the burden of showing, by clear and convincing evidence, the

requested documents fall within one of the FOIA exemptions. 5 ILCS 140/1.2.

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o What does “clear and convincing evidence” mean?

Rule: Proving clear and convincing evidence requires the public body to provide a

detailed explanation for asserting the exemptions in order for those reasons to be

tested in an adversarial proceeding. Lieber v. Board of Trustees of Southern Illinois

University, 176 Ill.2d 401, 408 (1997).

o What is a detailed justification?

Rule: A municipality must address the requested documents specifically and in a

manner allowing for adequate adversary testing. A “public body can meet its burden

[to show that an exemption applies] only by providing some objective indicia that the

exemption is applicable under the circumstances.” Illinois Education Ass’n v. Illinois

State Board of Education, 204 Ill. 2d 456, 470 (2003). A municipality cannot make

sweeping generalities or conclusory statements (i.e. that the investigation remains

open and disclosure could interfere). Public Access Opinion 17-001. There must be a

detailed, factual basis to support the exemption.

What are “biometric identifiers?”

Rule: The measurement and analysis of a unique physical or behavioral characteristic. Public

Access Opinion 14-008; Public Access Opinion 17-011. Also, under the Biometric

Information Privacy Act (740 ILCS 14/1 et seq) it is defined as “a retina or iris scan,

fingerprint, voiceprint, or scan of a hand or face geometry. Id. However, a document which

merely captured and stored information, it would not be a biometric identifier. A photograph

is not a biometric identifier unless it contains measurable characteristics. Public Access

Opinion 14-008. Likewise, a recording is not a biometric identifier unless it actually analyzes

the voice. Public Access Opinion 17-011.

Is a person’s name ever exempt?

Rule: Yes, the names of persons can be exempt if disclosure would be an unwarranted

invasion of privacy or if a person provided information to law enforcement or as part of an

investigation. It is a case by case analysis, but the Attorney General has upheld (in non-

binding opinions) withholding witness names, victim names and the names of persons who

submit FOIA requests. See FOIA Guide for Law Enforcement, June 2017.

What kind of records are “preliminary records?”

Rule: Preliminary discussions among staff where recommendations and opinions are

expressed. State Journal-Register v. Univ. of Illinois Springfield, 2013 IL App (4th) 120881,

¶ 26, 994 N.E.2d 705, 713. Purely factual material must be disclosed once a final decision has

been made, unless the factual material is inextricably intertwined with predecisional and

deliberative discussions. Id. Additionally, draft versions of documents would be exempt, but

the final version would be subject to disclosure. However, you must be careful about

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communications with persons outside of the agency, as it is unclear whether they would be

protected as a preliminary discussion.

What information do we have to disclose about our employees in response to

a FOIA request?

Rule: Personnel records are not per-se exempt. As such, an employees’ personnel record are

public records and subject to FOIA. Certain information can be redacted such as medical

information, home address, home phone number, performance evaluations, and private

financial information. 5 ILCS 140/2(c-5); 5 ILCS 140/7.5(q) However, salary and

photographs of employees are not private information. Public Access Opinion 14-008.

Police Records

Our Police Department says an investigation is pending, what records do we

hold back?

Rule: Only information that would actually interfere with the investigation. 5 ILCS

140/7(1)(d)(i); Public Access Opinion 17-011. You cannot withhold all documents just

because the investigation is pending. Several factors need to be considered, including the

nature of the incident, the stage of the investigation or prosecution and the sensitivity of the

investigatory records. See FOIA Guide for Law Enforcement, June 2017.

An inmate wants information about a specific case, can we deny the request?

Rule: You cannot withhold the documents in their entirety (in general), but you can redact

various information, such as witness and victim identities. New exemptions were adopted

that exempt records requested by inmates that (1) would result in the risk of harm to any

person or risk of escape from jail; (2) contain victim information unless relevant to

requestors’ current or potential case; and (3) law enforcement records of other persons

unless relevant to the requestor’s current or potential case. 5 ILCS 140/7(1)(e-8); (e-9); (e-

10).

Can we redact the names of victims?

Rule: Yes, the names of victims can be withheld pursuant to Section 7(1)(c) of FOIA. See

FOIA Guide for Law Enforcement, June 2017.

Appeals

What do we do if we get a “Further Inquiry” letter from the Attorney

General?

Rule: You have seven (7) business days to submit a response to the Attorney General’s

Further Inquiry letter. 5 ILCS 140/9.5(d). This response generally involves sending an

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unredacted copy of any records as well as a detailed explanation of why the records or

information is exempt. To the extent necessary work with your attorney and consider getting

affidavits from staff.

What do we do if we get a non-binding opinion from the Attorney General?

Rule: It is not clear, and is ultimately up to the public body. A public body is only required to

comply with a binding opinion under FOIA. 5 ILCS 140/9.5(f). There also is no review of a

non-binding opinion. Any lawsuit filed by a requestor would be subject to de novo review,

but there is a risk a court would review and rely on that non-binding opinion, especially when

considering penalties under FOIA.

20 N. Wacker Drive, Suite 1660, Chicago, Illinois 60606 (312) 984-6400

15010 S. Ravinia Avenue, Suite 10, Orland Park, Illinois 60462 (708) 349-3888

Scott F. Uhler Mallory A. Milluzzi Carmen P.

Forte

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sfuhler@ktjlaw.com mamilluzzi@ktjlaw.com cpforte@ktjlaw.com

(312) 984-6421 (312) 984-6458 (312) 984-6435