UPDATED: OMA and FOIA Requirements Amidst School Closures

In the face of mandated school closures beginning on March 17, 2020, Illinois school districts are assessing their ability to comply with sunshine laws, including the Illinois Open Meetings Act (OMA) and Illinois Freedom of Information Act (FOIA), while addressing the impacts of coronavirus disease 2019 (COVID-19). The Governor through Executive Order today suspended certain Open Meetings Act requirements allowing flexibility on issues of quorum and public comments during virtual meetings. No similar updates have been made at this time as to FOIA requirements. The Illinois State Board of Education (ISBE) and other stakeholders, including Franczek P.C., are working to implement temporary legislative fixes to address the impracticality of strict compliance with these laws during the shutdown. In the meantime, there are steps school districts can and should take to best position themselves to avoid OMA and FOIA violations.

Open Meetings Act

Requirements that all meetings of public bodies be open to the public and that a quorum of members of a public body be physically present at the location of an open meeting have been relaxed per the Governor’s Executive order. The Illinois School Boards Association broke this news to us earlier today:

Latest Executive Order from @GovPritzker suspends Open Meetings Act laws around in-person attendance giving school boards and other public bodies flexibility. pic.twitter.com/c2K74LSvZv

— lL School Boards (@ILschoolboards) March 16, 2020

For virtual meetings, public participation must continue to be allowed but can be provided for through virtual/electronic means. If Board members wish to enforce rules regarding public comment time limits, remember that the time limits must be addressed in board policy.

If meetings are held in person, which is not specifically prohibited, the OMA mandates on public participation were not generally amended by the Executive Order and so must be followed. However, mandates from the federal and state government that limit the number of individuals at a public gathering should be respected. For example, the Governor’s recent Executive Order limited public gatherings to 50 and the federal government recently recommended limiting gatherings to 10. In weighing public health/safety and OMA requirements with respect to in-person meetings, boards should consider the following with respect to in-person meetings:

• Meeting agendas can be revised to only include essential or time-sensitive items
• Four members need not be present. Even if there are multiple people present, boards can consider using larger spaces, auditoriums, gyms, etc., to practice appropriate social distancing. Absent Board members may participate by phone for any purpose. It is unclear whether members of the public can be excluded from public comment if a meeting is held in person; contact your board attorney.
• Public participation, currently, must be allowed, but again social distancing should be practiced. Use common sense practices such as asking people to speak loudly rather than using public microphones.
• Board policies regarding public comment time limits are essential to the efficient management of board business, especially in times such as these; remember that time limits must be addressed in board policy if enforced, and
• If there is a concern that a board meeting may attract a significant number of members of the public, or would typically but for the current crisis, consider rescheduling the meeting to consider that issue for a later date. If not possible, reach out to your attorney to discuss; and
• Meetings can be canceled or rescheduled if there are no pressing matters that require an immediate vote. Keep in mind, however, that upcoming March and April board meetings are likely essential for many school boards, because, at least for now, boards will be required to convene to comply with teacher evaluation and retention timelines.

Because of the many legal ambiguities with holding in-person meetings, we recommend working through logistics with your legal advisor before holding in-person meetings. Remember, too, that meetings can be canceled or rescheduled if there are no pressing matters that require an immediate vote. Keep in mind, however, that upcoming March and April board meetings are likely essential for many school boards, because, at least for now, boards will be required to convene to comply with teacher evaluation and retention timelines.

Freedom of Information Act

The FOIA requires public bodies to comply with, deny, or properly extend a request within five business days after receipt of the request. If the request is properly extended, it may only be extended for an additional five business days from the original due date. A failure to comply with FOIA timelines can prevent a public body from relying on the “unduly burdensome” exemption to a FOIA request, which is often an essential exemption for school boards.

While the FOIA timeframes still apply, we recommend communicating with requesters to reach an agreement on further extensions considering school closures and the resulting limitations to accessing school records. Also, consider whether requests that would not be unduly burdensome under normal circumstances are now, considering current events. Schools can consider the capabilities and number of personnel available to review and respond to requests, including other limitations on available individuals’ time when deciding whether responding would unduly burden the district. Remember that if a request is deemed unduly burdensome, the requester must be given an opportunity to narrow the request and, again, the FOIA officer must notify the requester in a timely manner that the request is unduly burdensome.

We will continue to update you on any changes in the OMA and FOIA requirements as these issues develop over the upcoming days and weeks. If you have any questions about the requirements of the OMA or FOIA at this time, please reach out to the authors of this post or any Franczek attorney.

[Updated 3/16/2020 4:17 p.m. to address the Governor’s Executive Order]