PAC Issues Two New Binding Opinions, Clarifying Requirements Under the OMA and FOIA

The Public Access Counselor (PAC)—the division of the Attorney General that reviews appeals regarding the Illinois Freedom of Information Act (FOIA) and Open Meetings Act (OMA)—recently issued two binding opinions clarifying requirements under the OMA and FOIA. In the first, Binding Opinion 21-009, the PAC found that a board of education failed to appropriately provide an opportunity for public comment when it only allowed members of the public to address the board in closed session. In the second, Binding Opinion 21-010, the PAC determined that a public body violated the FOIA by redacting names of employees found to have engaged in misconduct.   

In Opinion 21-009, members of the public signed up to speak at the Board of Education of Hillsboro Community Unit School District 3’s meeting by completing a Public Comment Form. After starting the open meeting, the Board immediately went into closed session, and members of the public who signed up to speak were called into closed session one by one. No community members made public statements in open session. After reviewing the Public Comment Forms and briefly speaking with those who signed up to speak, the Board reasoned that all the comments related to the performance of a specific employee. Therefore, the Board indicated that it only allowed the comments in closed session because employee performance was “a clear exception to the OMA requirement that most business be conducted in open session.” The PAC rejected the Board’s argument and ultimately found that this practice violated Section 2.06(g) of the OMA. 

Section 2.06(g) of the OMA provides that “any person shall be permitted an opportunity to address public officials under the rules established and recorded by the public body.” The PAC reasoned that a public body violates Section 2.06(g) when it prohibits public comment by denying members of the public an opportunity to address the public body in open session. As an initial matter, the PAC noted that the Board’s public comment rules made no mention of requiring members wishing to provide public comments to address the Board in closed session. Additionally, the members who addressed the Board intended their remarks to be public, as evidenced by their completion of the Public Comment Form, which affirmed that they agreed to the Board’s procedures for public participation. Importantly, the PAC also indicated that the OMA does not prohibit a public body from publicly discussing a matter in open session that it could also permissibly discuss in closed session. Further, there is no provision in the OMA that prohibits public comment on personnel decisions. Therefore, a rule or practice that forbids public comment regarding public body employees unduly restricts the right of the public to address the public body.  

At issue in Opinion 21-010 was a FOIA request seeking records from the City of Chicago’s Office of Emergency Management and Communications (OEMC) regarding allegations of racial discrimination, sexual harassment, and hostile work environment. OEMC provided the requester with responsive records, but redacted names of several City employees, including employees alleged or found to have engaged in misconduct, citing exemptions under Sections 7(1)(b), 7(1)(c), and 7(1)(n) of the FOIA. The PAC determined that OEMC’s redactions violated the FOIA.  

The PAC analyzed the redactions under each of OEMC’s claimed exemptions. Section 7(1)(b) exempts from disclosure “private information,” which the FOIA defines as “unique identifiers” such as social security numbers, driver’s license numbers, home or personal telephone numbers, and personal e-mail addresses, among other information. The PAC rejected OEMC’s claim that names of city employees are unique identifiers stating that nothing in the FOIA’s definition of “private information” suggests that a person’s name or basic identification is private information.  

Section 7(1)(c) exempts from disclosure “personal information contained within public records, the disclosure of which would constitute clearly unwarranted invasion of personal privacy.”  Section 7(1)(c), however, expressly provides that “the disclosure of information that bears on the public duties of public employees and officials shall not be considered an invasion of personal privacy.” The requested records involved employees’ public duties regarding a complaint of violence in the workplace and violation of policy. The PAC determined that records bearing on an employee’s public duties do not constitute a clearly unwarranted invasion of personal privacy, such that they would be exempt under the FOIA.  

Finally, the PAC discussed OEMC’s contention that the names were exempt pursuant to Section 7(1)(n) of the FOIA. Section 7(1)(n) exempts from disclosure “records relating to a public body’s adjudication of employee grievance or disciplinary cases; however, this exemption shall not extend to the final outcome of cases in which discipline is imposed.” The PAC noted that the Illinois Appellate Court has construed the term “adjudication” to be a “formalized legal process that results in a final and enforceable decision” and should be construed narrowly. Given this definition, the PAC determined that the requested records at issue documented complaints and investigations before any proceeding that would constitute an adjudication occurred. Therefore, because there were no formal agency proceedings, the PAC found that the records were not exempt from disclosure under Section 7(1)(n) either. 

If your school district has questions about the effect of these opinions, or general questions about the OMA or FOIA, please reach out to one of the authors of this post or any Franczek attorney.