HOW TO AVOID AN UNPLEASANT MEETING

WITH THE ATTORNEY GENERAL

 

A Quick Guide to the Open Meetings Act and the Freedom of Information Act

 

 

 

 

 

 

Presented by:

Maura K. McKeever

Matuszewich, Kelly & McKeever, LLP

May 4, 2013

 


 

I.                   Overview of the Open Meetings Act (5 ILCS 120/1 et seq) and the Freedom of Information Act (5 ILCS 140/1 et seq)

 

The Open Meetings Act and the Freedom of Information Act are known as the “Sunshine Laws” because they are designed to ensure that government is open and accountable and that the public knows how their tax dollars are being spent.

            Attorney General Lisa Madigan believes that an open and accountable government is a hallmark of a democratic society.  During the last few years, her office has updated the Sunshine Laws and made the Public Access Counselor a permanent part of the Office of the Attorney General.  The Public Access Counselor is responsible for educating the public and investigating potential violations of the Open Meetings Act and the Freedom of Information Act. 

The Public Access Counselor is also responsible for providing electronic training on both the Open Meetings Act and the Freedom of Information Act.  All elected and appointed public officials of a public body that is subject to the Open Meetings Act must successfully complete the electronic online training program and file a certificate of completion.  In addition, Open Meetings Act designees and FOIA officers must successfully complete the electronic online training within 30 days after that designation and thereafter on an annual basis. 

It is essential that elected officials are familiar with and understand the Open Meetings Act and the Freedom of Information Act.  Public bodies are subject to civil and criminal penalties for violations of the Open Meetings Act and civil penalties for violations of the Freedom of Information Act. 


 

 

II.                 Illinois Open Meetings Act

 

5 ILCS 120/1 et seq

 “Sec. 1. Policy. It is the public policy of this State that public bodies exist to aid in the conduct of the people's business and that the people have a right to be informed as to the conduct of their business. In order that the people shall be informed, the General Assembly finds and declares that it is the intent of this Act to ensure that the actions of public bodies be taken openly and that their deliberations be conducted openly.

The General Assembly further declares it to be the public policy of this State that its 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. Exceptions to the public's right to attend exist only in those limited circumstances where the General Assembly has specifically determined that the public interest would be clearly endangered or the personal privacy or guaranteed rights of individuals would be clearly in danger of unwarranted invasion.

    To implement this policy, the General Assembly declares:

    (1) It is the intent of this Act to protect the citizen's right to know; and

    (2) The provisions for exceptions to the open meeting requirements shall be strictly construed against closed meetings.

(For your convenience, a complete copy of the Open Meetings Act is attached to these materials.)

What is the Open Meetings Act?

•The Open Meetings Act is a state law that requires that meetings of public bodies be open to the public except in certain specific, limited situations where the law authorizes the public body to close a meeting.  

•The Open Meeting Act also provides that the public must be given advance notice of the time, place and subject matter of the meetings of public bodies.

 

 

WHAT DO YOU AS AN ELECTED OFFICIAL NEED TO DO TO ENSURE THAT YOU COMPLY WITH THE OPEN MEETINGS ACT?

 

1.       Read the Open Meetings Act!  It applies to you!

 

A public body is subject to civil and criminal penalties for violating the Open Meetings Act so it is imperative that you know and follow the law.

 

As an elected official, you must be familiar with the Open Meetings Act. 

•What is a “public body”?

The Open Meetings Act definition of “public body” is deliberately broad.  It applies to any entity that is supported in whole or in part by tax revenue or which expends tax revenue.  This broad definition includes townships, road districts and municipal corporations, and applies to the governing body, advisory committees and subcommittees, even if the subgroup does not spend or use tax revenue. 

•What is a “meeting”?

The Open Meetings Act definition of “meeting” is also deliberately broad.  Under the Open Meetings Act, a meeting is a gathering of a majority of a quorum of the members of the public body for the purpose of discussing public business.  The gathering can be in person, by video, audio, telephone, or electronic means.  If a majority of a quorum is participating and discussing public business, it is a meeting.  The rules are slightly different for a 5 member public body.  For a 5 member public body, if a quorum is participating, it is a meeting. 

2.       Make sure that your meetings are open. 

 

a.       Give proper notice.

•The public has a right to attend the meetings of public bodies so you need to give proper public notice of the date, time and location of the meeting.

•At the beginning of each calendar or fiscal year, every public body must create and make available to the public the schedule for regular meetings that year, including the dates, times, and locations of the meetings. Notice shall be given by posting a copy of the notice at the principal office of the body holding the meeting or, if no such office exists, at the building in which the meeting is to be held. If the public body has a website maintained by its own full-time staff, then notice of all meetings must also be posted on that website.  If the public body changes the regular meeting schedule (as opposed to a particular meeting), it must give 10 calendar days notice of the change by publicizing the change in the newspaper and by posting information concerning the schedule change at the principal office of the public body.

•The meetings must take place at a location that is convenient and open to the public. 

•A public body cannot hold a meeting on a public holiday, unless the regularly scheduled meeting falls on that holiday.

b.       Post an Agenda at least 48 hours before the scheduled meeting.

•An Agenda must be posted at least 48 hours before the scheduled meeting.

•The Agenda must be posted at the principal office of the public body, at the location of the meeting, and if the public body has a website that is maintained by a full time staff member, on the website. 

•The Agenda cannot be changed less than 48 hours before the meeting.

•The public body can discuss items that are not on the agenda for the regular meeting but can only take action on items that are on the agenda.  At a special or emergency meeting, the public body can only discuss items that are on the agenda.

c.        A quorum must be physically present at the meeting.

•A quorum of the members of the public body must be physically present at the meeting location. 

•A public body can adopt rules that authorize attendance at meetings by audio or video conference, but only under limited circumstances.

d.       Allow public participation during the Open Meeting.

•The Open Meetings Act requires that public bodies give members of the public an opportunity to speak at a public meeting.

•Public bodies are authorized to adopt rules regarding the public comment portion of a meeting. Such rules may limit the time allotted for the public to speak.

•A member of the public can also record the meeting.

e.        Keep accurate Minutes of the Meeting.

•The minutes must include:

      ▪the date, time and place of the meeting;

▪a list of the members present and absent from the meeting, and whether they attended in person, by phone, or by video;

▪a summary of the discussion of all matters proposed, deliberated, or decided; and

▪a record of any vote that was taken.

•Subsidiary bodies of public bodies (such as committees and subcommittees) are also required to take minutes of meetings.

•The minutes must be available for public inspection.

 

•If the public body has a website, the minutes must be posted within 7 calendar days after the minutes are approved by the public body. Minutes are generally approved at the next board meeting.  The minutes must remain posted for at least 60 days after their initial posting.

 

3.       Know when and how to close a meeting.

Because the policy of the State of Illinois favors open and transparent government, a public body can only close a meeting under limited circumstances.  A public body cannot take any binding or final action in a closed session. 

a.       Topics that can be considered in a closed meeting:

Section 2(c) of the Open Meetings Act provides that a public body can close a meeting to the public only when certain topics are to be considered.  The following list highlights the topics that are most likely to be discussed by a township or municipal corporation:

•the appointment, employment, compensation, discipline, performance, or dismissal of a specific employee or legal counsel for the public body;

•collective negotiating matters or deliberations concerning salary schedules for one or more classes of employees;

•discipline or removal of an occupant of a public office or appointment of an individual to fill a vacant public office;

•evidence or testimony received in a hearing, provided that the body is a quasi adjudicative body and prepares and makes available for public inspection a written decision setting forth its determinative reasoning;

•the purchase or lease of real property by the public body;

•the setting of a price for sale or lease of property owned by the public body;

•the sale or purchase of securities, investments, or investment contracts;

•security procedures;

•pending or probable litigation against, affecting or on behalf of the public body;

•the establishment of reserves or settlement of claims as provided in the Local Governmental and Governmental Employees Tort Immunity Act;

•conciliation of complaints of discrimination in the sale or rental of housing;

•ongoing, prior or future criminal investigations, when discussed by public bodies with criminal investigatory responsibilities;

•discussions regarding self-evaluation, practices and procedures or professional ethics with representatives of statewide associations;

•discussion of the minutes of a meeting that was lawfully closed under OMA;

•the operation by a municipality of a municipal utility or power agency or natural gas agency regarding contracts relating to the purchase, sale or delivery of electricity or natural gas, or the results or conclusions of lead forecast studies;

•discussions involving internal or external auditors and governmental audit committees, finance committees, and their equivalents, when the discussion involves internal control weaknesses, identification of potential fraud risk areas, known or suspected frauds, and fraud interviews conducted in accordance with generally accepted auditing standards of the United States of America; and

•correspondence and records that may not be disclosed under Section 119 of the Public Aid Code, 305 ILCS 5/1-1 et seq., or that pertain to appeals under Section 118 of the Public Aid Code.

For the complete list of exceptions, see 5 ILCS 120/2(c)

b.       Procedure for closing a public meeting.

If a public body wants to hold a closed session, the public body must first meet in a properly noticed open meeting, then vote to close the meeting by a majority vote of a quorum present. The vote of each member on the question of closing the session must be publicly disclosed and properly recorded. The public body must cite the specific exemption in the Open Meetings Act that applies and allows the meeting to be closed.

c.       Who can attend the “closed” session?

Only the members of the public body and others who are directly involved in the matter which is the basis for the closed meeting may attend the meeting.

d.       Keep a verbatim record of the closed session and take minutes.

A public body must make a verbatim record, by audio or video, of any closed session and take minutes of the meeting.  The verbatim record must be kept for at least 18 months after the meeting.  Semi-annually, the public body must meet to review the minutes of any closed sessions that occurred and determine whether the minutes of those closed sessions need to remain confidential. If the public body determines that it is no longer necessary to have the minutes remain confidential, it must make the minutes available to the public.

4.      Take the required Online Electronic Training

•ALL elected or appointed members of a public body that is subject to the Open Meetings Act MUST successfully complete an online electronic training program and file a certificate of completion with the public body.  Most officials will only need to take the training once.  The Open Meetings Act designee for the public body will need to complete the training annually.

•All public bodies must designate employees, officers or members to receive training on compliance with the Open Meetings Act.  The public body must submit the name or names of the designee(s) to the Public Access Counselor in the Office of the Illinois Attorney General.

            Sarah Pratt

            Public Access Counsel

            Office of the Attorney General

            500 S. 2nd Street

            Springfield, IL  62706

            publicaccess@atg.state.il.us

            •When does the training need to be completed?

All elected or appointed members who were in office on January 1, 2012 should have completed the training by January 1, 2013.

            All individuals who became elected or appointed members of a public body after January 1, 2012 must complete the electronic training no later than the 90th day after:

            Taking the oath of office if an oath is required; or

            Otherwise assuming the responsibilities as a member of the public body if an oath is not required.

            If a public body designates a new individual to receive training, that individual must receive initial training within 30 calendar days of the designation and must then complete an annual electronic training program.

Training is available at:

http://foia.ilattorneygeneral.net/electronic_foia_training.aspx


III.             Illinois Freedom of Information Act

 

5 ILCS 140/1 et seq

Sec. 1. Pursuant to the fundamental philosophy of the American constitutional form of government, it is declared to be the public policy of the State of Illinois that all persons are entitled to full and complete information regarding the affairs of government and the official acts and policies of those who represent them as public officials and public employees consistent with the terms of this Act. Such access is necessary to enable the people to fulfill their duties of discussing public issues fully and freely, making informed political judgments and monitoring government to ensure that it is being conducted in the public interest.

The General Assembly hereby declares that it is the public policy of the State of Illinois that access by all persons to public records promotes the transparency and accountability of public bodies at all levels of government. It is a fundamental obligation of government to operate openly and provide public records as expediently and efficiently as possible in compliance with this Act.

 This Act is not intended to cause an unwarranted invasion of personal privacy, nor to allow the requests of a commercial enterprise to unduly burden public resources, or to disrupt the duly-undertaken work of any public body independent of the fulfillment of any of the fore-mentioned rights of the people to access to information.

This Act is not intended to create an obligation on the part of any public body to maintain or prepare any public record which was not maintained or prepared by such public body at the time when this Act becomes effective, except as otherwise required by applicable local, State or federal law.

Restraints on access to information, to the extent permitted by this Act, are limited exceptions to the principle that the people of this State have a right to full disclosure of information relating to the decisions, policies, procedures, rules, standards, and other aspects of government activity that affect the conduct of government and the lives of any or all of the people. The provisions of this Act shall be construed in accordance with this principle. This Act shall be construed to require disclosure of requested information as expediently and efficiently as possible and adherence to the deadlines established in this Act.

The General Assembly recognizes that this Act imposes fiscal obligations on public bodies to provide adequate staff and equipment to comply with its requirements. The General Assembly declares that providing records in compliance with the requirements of this Act is a primary duty of public bodies to the people of this State, and this Act should be construed to this end, fiscal obligations notwithstanding.

The General Assembly further recognizes that technology may advance at a rate that outpaces its ability to address those advances legislatively. To the extent that this Act may not expressly apply to those technological advances, this Act should nonetheless be interpreted to further the declared policy of this Act that public records shall be made available upon request except when denial of access furthers the public policy underlying a specific exemption.

This Act shall be the exclusive State statute on freedom of information, except to the extent that other State statutes might create additional restrictions on disclosure of information or other laws in Illinois might create additional obligations for disclosure of information to the public.

(For your convenience, a complete copy of the Freedom of Information Act is attached to these materials.)

What is the Freedom of Information Act?

The Freedom of Information Act (FOIA) is a state statute that provides the public the right to access government documents and records. Although it is called the Freedom of Information Act, it is really an open records act.  Much like the Open Meetings Act, the premise behind FOIA is that the public has a right to know what the government is doing. The law provides that a person can ask a public body for a copy of its records on a specific subject and the public body must provide those records, unless there is an exemption in the statute that protects those records from disclosure.

WHAT DO YOU AS AN ELECTED OFFICIAL NEED TO DO TO ENSURE THAT YOU COMPLY WITH THE FREEDOM OF INFORMATION ACT?

1.       Read the Freedom of Information Act!  It applies to you!

 

A public body is subject to civil penalties for violating the Freedom of Information Act so it is imperative that you know and follow the law.

 

As an elected official, you must be familiar with the Freedom of Act. 

 

•What is a “public body”?

The Freedom of Information Act definition of “public body” is deliberately broad.  The Act defines “public body” as “all legislative, executive, administrative, or advisory bodies of the State, state universities and colleges, counties, townships, cities, villages, incorporated towns, school districts and all other municipal corporations, boards, bureaus, committees, or commissions of this State, any subsidiary bodies of any of the foregoing including but not limited to committees and subcommittees thereof and a School Finance Authority created under Article 1E of the School Code.”  As an elected official, you must be familiar with the Freedom of Information Act. 

•What is a “public record”?

The Freedom of Information Act is intended to cover any document, regardless of form, that pertains to government business.  Information can be available in electronic as well as paper format.

FOIA defines “public records” as “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.”

A few examples of public records available under FOIA are:

•orders;

•rules;

•reports or studies;

•contracts;

•names, titles and salaries of public employees; and the

•voting records of public bodies.

2.       What does a public body need to do to comply with the Freedom of Information Act?

 

a.       Designate a FOIA officer

•Every public body must designate at least one person to act as the FOIA officer and receive and respond to FOIA requests.

•Every public body must prominently display at its office and make available certain information, including the name(s) of its FOIA officer(s). The office also must display and make available:

• Information on how to submit a FOIA; and

 

• A brief description of the office, including its purpose, budget and number of

employees.

If the public body has a website, this information must be posted on the website.  

            •Although a public body can state that FOIA requests must be submitted in writing, it cannot specify a particular format for the request.  A public body must accept requests by mail, personal delivery, fax, e-mail, or other means available. A public body can accept oral requests but is not required to do so.

•Each FOIA officer must develop and make available upon request a list of documents that the public body will immediately provide to a requester. In addition, each public body must maintain a reasonably current list of all types or categories of records under its control and this list should be reasonably detailed so that it aids people in obtaining access to public records. The public body must make this list available for inspection and copying.

            •All FOIA officers must complete the online training within 30 days of being designated a FOIA officer.  The training must be completed each year that the individual remains a FOIA officer.

b.       Respond to a FOIA request in a timely fashion

•A public body has 5 business days from the day AFTER the public body receives the request to respond.   All employees and officials of a public body must immediately forward all requests for information to the FOIA officer(s) to maximize the response time.

•Day 1 of the five day timeline is the day AFTER the public body received the request.

•A “business day” or “working day” is a regular day of the week (Monday through Friday) when public offices and most businesses are open. Saturdays, Sundays and legal holidays are not business days and cannot be counted in the 5 business day time period.  If a FOIA request sent by e-mail appears in the recipient’s mailbox during normal working hours, it is received on that day. If it is e-mailed after business hours, including on a weekend or legal holiday, it is “received” on the following business day.

•FOIA does not have any exceptions for vacations or winter breaks, other than for Saturdays, Sundays and legal holidays.

• The response period may be extended for an additional 5 business days from the date of the original due date if:

▪The requested information is stored at a different location;

▪The request requires the collection of a substantial number of documents;

▪The request requires an extensive search;

▪The requested records have not been located and require additional effort to find;

▪The requested records need to be reviewed by staff who can determine whether they are exempt from FOIA;

▪The requested records cannot be produced without unduly burdening the public body or interfering with its operations; or

▪The request requires the public body to consult with another public body that has substantial interest in the subject matter of the request.

•If the public body determines that additional time is needed to respond to the request, the public body must notify the requester in writing within 5 business days after the receipt of the request of the statutory reasons for the extension and when the requested information will be produced.

•If a public body determines that a request is “unduly burdensome”, it must give the requester an opportunity to reduce the request to manageable proportions.  If the requester cannot reduce the request, the public body can deny the request if:

(1)  the request is categorical in nature and incapable of being narrowed or reduced; and

(2)  the burden on the public body to produce the information must outweigh the public interest in the information.

In addition, FOIA provides that repeated requests from the same person for the same records that are unchanged or identical to records previously provided or properly denied shall be deemed unduly burdensome and may be denied on that basis.

•If a requester asks for documents in a specific electronic format, the public body must provide the documents in the requested electronic format.  If that format is not available to the public body, it must provide the documents in the electronic format in which they are kept or in paper, at the option of the requester.

•A public body’s failure to respond with the required time frame is considered a denial.  If the public body responds after the expiration of the appropriate time, it cannot charge a fee for the copies and cannot treat the request as unduly burdensome.

•A public body must inform a recurrent requester that he is being treated as a recurrent requester within 5 days and respond to the request within 21 days of receipt of the request.

•A public body has 21 days to respond to a request for records to be used for a commercial purpose.

c.        Denials of FOIA Requests

 

A public body that denies a request for public records, whether in whole or in part, must provide the requester with written notification of the decision to deny the request and include:

 

1)      The reasons for the denial, including a detailed explanation of the factual basis for any exemption claimed; and

 

2) The names and titles or positions of each person responsible for the denial.

 

Each notice of denial must also:

 

1)      Inform the requester of his or her right to seek review by the Public Access Counselor;

 

2)      Provide the address and phone number for the Public Access Counselor; and

 

3) Inform the requester of the right to judicial review under section 11 of FOIA.

 

d.       Charge the appropriate fees

 

•A public body can charge no more than .15 per page.

 

•For black and white, letter or legal sized copies, the first 50 pages are free.

 

•The public body can charge the actual cost of copying for color copies or unusual size copies. 

•If the information is produced in an electronic form, the public body can only charge the cost of the recording medium (e.g. the cost of the CD). 

•If the public body has a database and the requested information requires that the public body do a search of that database, the public body has to conduct that search and cannot charge for the search.

•A public body can require the requester to make payment before making the copies.

•A public body may reduce or waive the copy fees if disclosure is in the public interest.

•The imposition of a fee in excess of the permitted fee constitutes a denial of the FOIA request.

e.        Exceptions to the Duty to Disclose - What kind of information is not public?

The Freedom of Information Act presumes that all information is public, unless the public body proves otherwise.  5 ILCS 140/7 sets forth the exemptions to public disclosure.  The exemptions include but are not limited to:

• Private information, which is defined as “unique 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 e-mail addresses.” Under FOIA, “private information also includes home addresses and personal license plate numbers, except as otherwise provided by law or when compiled without possibility of attribution to any person.”

• Personal information that, if disclosed, would constitute a clearly unwarranted invasion of personal privacy, unless the disclosure is consented to in writing by the person who is the subject of the information. Under FOIA, the “unwarranted invasion of personal privacy” means the “disclosure of information that is highly personal or objectionable to a reasonable person and in which the subject’s right to privacy outweighs any legitimate public interest in obtaining the information.” Disclosing information that relates to the public duties of public employees is not considered an invasion of personal privacy.

• Law enforcement records that, if disclosed, would interfere with a pending or reasonably contemplated proceeding or that would disclose the identity of a confidential source.

• Information that, if disclosed, might endanger anyone’s life or physical safety.

• Preliminary drafts or notes in which opinions are expressed or policies are formulated, unless the record is publicly cited and identified by the head of the public body.

• Business trade secrets or commercial or financial information that is proprietary, privileged or confidential and disclosure would cause a competitive harm to the person or business.

• Proposals and bids for any contract, until a final selection is made.

3.        All FOIA officers must take the Online Electronic Training. 

 

•All FOIA officers must complete the electronic training within 30 days of being designated a FOIA officer.  The training must be completed each year that the individual remains a FOIA officer. 

•Although FOIA officers are not required to register with the Public Access Counselor, they will have the opportunity to provide their contact information during the electronic training process.

 

 

Training is available at:

http://foia.ilattorneygeneral.net/electronic_foia_training.aspx