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COVID-19 Update for Public Bodies Regarding FOIA and OMA Compliance

Board Governance Coronavirus

As with most issues relating to the coronavirus disease 2019 (COVID-19), expectations regarding the holding of public meetings have been evolving rapidly over the past few days. On March 16, 2020, Illinois Governor JB Pritzker issued an executive order suspending the provisions of the Illinois Open Meetings Act (OMA) requiring or relating to in-person attendance by members of the public body and allowing remote (audio or video) meetings to be streamed to the public. On March 17, the Illinois Attorney General’s Public Access Counselor (PAC) issued Guidance to Public Bodies on the Open Meetings Act and the Freedom of Information Act (FOIA) during the COVID-19 Pandemic. The PAC guidance advises, among other things, that when in-person meetings are held the public can be in a separate room with video or audio links to the public meeting. Questions have blossomed about the legality of the Executive Order, upon which the PAC guidance is based. Boards addressing more controversial matters, such as Reductions in Force, bond approvals, or controversial issues, where it is essential that the meeting be above reproach, should contact a Franczek attorney to discuss best options. With respect to FOIA, the guidance recognizes that it may be difficult to respond to FOIA requests within the timeframes in the statute and recommends that public bodies come to agreements to extend the time for a response. Although the PAC does not address the use of the unduly burdensome provisions of FOIA to deny a request, we recommend that public bodies continue to consider that option. Bottom line, at least for now, FOIA timelines still apply. We intend to communicate with the PAC on these issues and will provide additional guidance as soon as possible.