New FOIA Guidance from Illinois Attorney General
The Public Access Counselor (“the PAC”) updated its guidance on the Open Meetings and the Freedom of Information during the COVID-19 pandemic. (http://foia.ilattorneygeneral.net/pdf/OMA_FOIA_Guide.pdf) Members of the public can – and are – submitting requests to review during the pandemic, so understanding the PAC’s guidance is essential.
Public Act 101-640
Public Act 101-640 (effective June 12, 2020) codifies many of the Open Meetings Act changes previously in place via Executive Order, permitting virtual or remote meetings during a declared emergency, subject to some additional provisions not previously required in the Executive Orders, including, but not limited to:
1. All members of the body participating in the meeting, wherever their physical location, shall be verified and can hear one another and can hear all discussion and testimony.
2. For open meetings, members of the public present at the regular meeting location of the body can hear all discussion and testimony and all votes of the members of the body, unless attendance at the regular meeting location is not feasible due to the disaster, including the issued disaster declaration, in which case the public body must make alternative arrangements and provide notice pursuant to this Section of such alternative arrangements in a manner to allow any interested member of the public access to contemporaneously hear all discussion, testimony, and roll call votes, such as by offering a telephone number or a web-based link.
3. At least one member of the body, chief legal counsel, or chief administrative officer is physically present at the regular meeting location, unless unfeasible due to the disaster.
4. All votes are conducted by roll call, so each member's vote on each issue can be identified and recorded.
5. Public bodies holding open meetings under this provision must also keep a verbatim record of all their meetings in the form of an audio or video recording.
The Open Meetings Act
The PAC focused its guidance on the new Sections 7(e)(3) and 7(e)(10) of the Open Meetings Act, which became effective June 12, 2020. These new sections impact how public bodies provide the public with reasonable accessibility to its meetings.
1. Public Participation: If attendance at the regular meeting location is not feasible because of the pandemic, Section 7(e)(4) of the Open Meetings Act provides that the public body must make alternative arrangements, with the proper notice, which “allow any interested member of the public to contemporaneously hear all discussion, testimony, and roll call votes[.]” (emphasis added). Alternative arrangements include offering a telephone number or web-based link.
While making a weblink for contemporaneous access is good, the PAC advises that public bodies also offer other methods for individuals to listen in who do not have access to the internet. The PAC writes, “To help ensure all meetings are ‘convenient and open’ to the public to the greatest extent possible, public bodies should offer multiple ways for the public to access as public meeting, such as offering both a telephone number and a weblink, so that individuals who do not have internet services have an option to access the meeting.” (emphasis added).
2. Recordings: Section 7(e)(9) requires public bodies holding open meetings under the new sections of the Open Meetings Act to keep a verbatim record of all their meetings, including the open sessions, in the form of an audio or video recording. These verbatim records must be made available to the public, and are otherwise subject to, the provisions of Section 2.06 of the Open Meetings Act, including maintaining the records for at least 18 months after the meeting was held.
3. Postponing or Cancellation of Meetings: If a public body chooses to cancel a meeting after it has already posted the notice and agenda in accordance with the Open Meeting Act’s 48-hours’ notice requirement, the public body should place the cancellation notice on its website, at the principal office of the public body, and at the meeting location.
|
PAC is often asked whether cancelling a meeting or changing a meeting date requires 10 days’ notice of the change by publication in a newspaper. The answer is no; this requirement applies only to a change in the schedule of regular meetings, for example, changing the regular meeting dates from Mondays to Thursday. This specific notice and publication requirement does not apply to cancelling a single meeting.
Guidance to Public Bodies on the Open Meetings Act and the Freedom of Information Act during the COVID-19 Pandemic, *5 (July 2, 2020). |
4. Public Comment: If a public body is meeting remotely, the PAC recommends that public bodies “consider taking public comment by email or written submission and reading those public comments into the record of the public meeting.” It also cautions, “If the public body convenes via electronic means, it should provide multiple alternative means for the public to comment, such as, telephone or video-conference capabilities, in addition to the submission of emailed or written comments noted above.” (emphasis added).
5. Meetings Held in Person: The PAC notes that public bodies should “exercise good judgment and discretion and utilize the availability of remote participation to help curb the spread of COVID-19. Public bodies should continue to be aware of appropriate public health considerations if the circumstances do not exist to hold a remote meeting, the public body decides to hold an in-person meeting, or members of the public are present at the normal location to observe a remote meeting.” If a public body “determines it is necessary to hold a public meeting,” the PAC recommends the following:
a. Hold your public meeting in a larger room than normal to facilitate social distancing (i.e. an auditorium, gymnasium, or other large space).
b. Consider having a separate room for the public that is video or audio linked to the room where the public is meeting.
c. Consider recording the entire meeting for persons who are unable to attend or access open meetings during this public health crisis. Post the open session recording on your public body’s website as soon after the meeting as is practicable.
d. Clearly designate the location of a meeting in the notice and posting required under the Open Meetings Act, as well as instructions for accessing the meeting remotely. Public bodies are encouraged to place additional signage in the facility hosting a public meeting so the public is aware of the specific room or space location where a meeting is being held, especially if meetings are being held in places where staffing is minimal and there may be limited personnel to assist the public in locating a public meeting.
Freedom of Information Act
While the PAC acknowledged the steps taken by public bodies to protect their employees, it emphasized that “to date, none of the COVID-related Executive Orders authorize public bodies to disregard FOIA or to issue blanket denials of all FOIA requests[.]” Where public bodies require additional time to respond to FOIA requests, they may assert an exemption under Section 3(e) of FOIA or come to a mutually agreeable response period with the requester.