End-of-Year Decisions by The PAC Provide Cautionary Notes to Public Bodies
January 3, 2018
By Nicki Bazer
In the last month and a half of 2017, the Public Access Counselor of the Illinois Attorney General’s Office issued three binding opinions, one addressing the Open Meetings Act (OMA) and two addressing the Freedom of Information Act (FOIA), finding against the public body and in favor of the requestor in each instance.
On November 21st, upon request for review by the local chapter of the NAACP, the PAC found that the Village of Mapleton improperly entered closed session to discuss comments made by a Village Board Member that had stirred controversy because of their allegedly racist nature. In its decision, the PAC rejected multiple potential bases for the Village Board to enter into closed session, including finding that it could not do so under 2(c)(1) (personnel exception) or 2(c)(3) (discipline, performance, removal of a public official) of the OMA because Board Members are not employees of the Village nor does the Board have the power to remove one of its own members. Finally, the PAC rejected the use of 2(c)(4) (evidence or testimony), the basis cited by the Village, because: (1) the Board had not considered evidence or testimony, as required by the exception; (2) the discussion was done by the Board in its legislative capacity and not as a quasi-adjudicatory body; and (3) the Board is not authorized to conduct a hearing against one of its members. The PAC ordered the Village Board to release its verbatim closed session recording, finding no basis for the Board to have discussed one of its own members in closed session.
In the first of the two December FOIA opinions, the PAC found that the McLean County State’s Attorney’s Office had improperly denied a request made on behalf of Bloomington Normal News seeking all FOIA requests and responses that the County Clerk’s office had received in the last 8 weeks. In support of its denial, the County did not cite to any specific FOIA exception, but rather stated that the request did not “meet the purpose and intent of [FOIA].” The County believed that the requestor was using FOIA solely to obtain private information about her fellow citizens. The PAC rejected this as a basis for withholding the information requested, noting that all records are presumed open and that just as FOIA does not require the requestor to state a reason for the request, the law does not allow a public body to deny a request based on what it believes the underlying purpose of the request to be. The PAC noted that the County’s website made clear, consistent with the FOIA, that all FOIA requests and responses are required to be made available. According to the PAC, if the County wished to withhold or redact certain information, like requestor addresses, then, it must do so pursuant to a proper FOIA exception rather than withholding the documents in their entireties.
And finally, the last binding opinion of the year, issued on December 28, 2017, is less notable for its findings than the subject of the opinion. In September, a citizen submitted a FOIA request to the Governor’s Office seeking a log of FOIA requests received by the Governor since July 1, 2017. The Governor’s Office failed to respond to this initial request, or to any requests from the PAC. The PAC ordered the Governor’s Office to comply with the request, thereby reminding all public bodies that they are subject to FOIA, regardless of level or size of the office.
As we enter 2018, school boards should be aware that the PAC continues to closely monitor and enforce the provisions of the OMA and the FOIA. If a board wishes to go into closed session or to withhold documents, it must have a clear basis to do so under the law.