Open Meetings, FOIAand Record Management

How Law and Technology Impacts the Nuts and Bolts

May 16, 2012Illinois Association of School Business Officials

Peoria, Illinois

Rob SwainHodges, Loizzi, Eisenhammer, Rodick & Kohn LLP

hodgesloizzi.com

Open Meetings 101- Training

conducted by AG’s office

- 1 year deadline for current officials

- 90 days for newcomers

Participation in Board Meetings by Audio and/or Video Conference

Conference Call

Skype

Instant Message

Web Meeting

•A majority of the quorum must be present •Members may participate remotely only due to emergency, illness, or business travel

•Draft a policy and adopt remote participation procedures

Local Records Retention

A Public Record is:

“any book, paper, map, photograph, digitized electronic material, or other official documentary material, regardless of physical form or characteristic, made, produced, executed or received by any agency or officer pursuant to law or in connection with the transaction of public business and preserved or appropriate for preservation by such agency or officer, or any successor thereof, as evidence of the organization, function, policies, procedures or activities thereof, or because of the informational data contained therein.”

Excluding:

library materials preserved only for reference and extra copies of documents kept for convenience.

Retention and Destruction

ScheduleThe public body must develop policies or ordinances and procedures for the maintenance and destruction of public records.

Maintenance:

•Public records, including electronic records, shall be preserved by category of record.

•Public officials and their employees should be trained to identify and retain public records.

•Electronic records should be preserved in their original format, except they may be reproduced in microfilm or digitized form.

Managing Electronic Information

•Any information that was a public record when produced in paper remains a public record when produced or maintained electronically.

•Records created as or converted to an electronic format are government assets and must be maintained for the period required by law or Local Records Commission Regulation.

•The State Archivist’s website has very specific instructions regarding the medium to be used for digitizing public records.

F I AO

The Illinois FOIA defines “public records” to include “all records, reports, forms, writings, letters, memoranda, books, papers, maps, photographs, microfilms, cards, tapes, recordings, electronic data processing records, electronic communications, recorded information and all other documentary materials pertaining to the transaction of public business, regardless of physical form or characteristics, having been prepared by or for, or having been or being used by, received by, in the possession of, or under the control of any public body.” 5 ILCS § 140/2(c)

The key to determining whether a record is a public record under the Act is how it is used rather than its format.

FOIA includes a presumption that government records are public records. This presumption is rebutted only when a record falls within one of the exceptions enumerated in the Act.

Pursuant to a permissible request, public records must be made available to the public within 5 days (or extended to 10) for inspection and copying.

Electronic Records

Information stored electronically must be provided in response to a FOIA request. Finding every electronic record (e-mail, word processing document, etc.) that is a “public record” can create a formidable administrative burden, but failure to find all responsive records can lead to liability.

Public bodies should ensure that notices to the public regarding procedures for FOIA requests and lists of the types of records maintained are updated to include electronic records.

Metadata:

Electronically stored information often contains metadata — data about the file that may include a variety of types of information.

New FOIA Highlights

• FOIA Officers• Change to student records exemption• No “personnel file” exemption• Employment contracts• Settlement agreements• Disciplinary investigations (the new

personnel file?)• Evaluations• No Board-level appeal• Public Access Counselor• Advisory opinions from Attorney General

PreapprovalDesk

Uncle!

Preapproval: UnPACked

• As of August 26, 2011, pre-approval from the PAC is no longer required to invoke the “personal privacy” and “preliminary draft” exemptions.

• Invoke these exemptions now in your FOIA response, just as other exemptions. Still subject to review by the PAC or in court.

• “Personal information … the disclosure of which would constitute a clearly unwarranted invasion of personal privacy”

• “Preliminary drafts, notes, recommendations, memoranda and other records in which opinions are expressed, or policies or actions are formulated” if not publicly cited by Board President

Notable PAC Preapproval Decisions

• Can withhold– Draft talking points and press releases (assuming pre-decisional)– Applications for public employment, but not for candidate hired– 1-1 Board member e-mails discussing agenda items and issues to be

addressed at upcoming Board meetings (*OMA warning*)– Medical information, birth dates– Signatures? (no PAC opinion, but PAC omits its attorneys’ signatures)

• Cannot withhold– Applications for public office– Private citizens’ comments to district officials about an employee

controversy, but can redact citizens’ names from such comments

• (Note that PAC preapprovals are not binding precedent)

Question: How long must e-mails be archived?

Answer: As long as ______ paper.

Litigation Hold

When a public body is a party to litigation or can reasonably foresee that a dispute will lead to litigation, it must preserve evidence that might be relevant to

the dispute. The preservation process is called a “litigation hold.”

Litigation Hold

Identification and Preservation:

Identify all potentially relevant files, including but not limited to word processing documents, spreadsheets, voicemail and e-mail both sent by and received by relevant persons.

Identification will be more difficult if:

•Relevant persons have used personal e-mail accounts to communicate about a subject relevant to the dispute, or

•Relevant persons have created documents while using computers belonging to other persons, or have saved documents to places other than their personal user accounts and/or the central computer network.

Comply with retention requirements of the Local Records Act and of litigation holds

Identify the formats and places in which data are “created, used, stored, maintained and backed up”

Ease the administrative burden of identifying and locating records responsive to a FOIA request

Identify and purge ESI that is unnecessary Create objective standards for purging data that is not subject to a

statutory or regulatory retention requirement; and Create a thorough procedure for efficiently implementing litigation holds on

these purges. This procedure should identify:

-Routine procedures to suspend when a litigation hold is necessary,

-Procedures for notifying employees of a litigation hold,-Procedures for periodically reminding employees of a litigation hold, and

-Monitoring, discipline or other methods for enforcing a litigation hold.

To develop a comprehensive records maintenance policy, public bodies should:

Thank you for coming.

Enjoy the Summer!

Rob Swain

Hodges, Loizzi, Eisenhammer, Rodick & Kohn LLP

847.670.9000 · rswain@hlerk.com