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The Final Four Binding PAC Opinions of 2016 Remind School Districts of FOIA and OMA Requirements

K-12 Education Publications

In the final days of the year, the Illinois Public Access Counselor (PAC) issued four binding opinions that reiterate the requirements of both the Freedom of Information Act (FOIA) and the Open Meetings Act (OMA). Below is a discussion of each opinion and its impact on school districts.

FOIA Request for Employee Raises and Bonuses:

In the only opinion dealing with an FOIA request, the PAC found that the Housing Authority of the City of Freeport violated FOIA by denying a request “seeking the dollar amount of the increase and the names and titles of the staff members receiving bonuses as a result of the re-allocated funds.”

The Authority contended that the request for the names and titles of employees receiving raises and bonuses required the disclosure of personal financial information and highly personal information that would be objectionable to a reasonable person. The PAC, however, found that because the information sought neither provided a unique identifier of the employee (like a social security number or bank account number), nor eroded the employees’ reasonable expectation of privacy, the private and personal information exemptions cited by the Authority were inapplicable. As a result, there was no basis under FOIA by which to deny the request. The PAC concluded specifically that any expectation of privacy an employee has with respect to “personal information” concerning his or her compensation was outweighed by the public’s legitimate interest in knowing how public funds are expended.

The final argument asserted by the Authority was that requests for employee raises and bonuses, or compensation in general, tend to provide the requestor with an opportunity to harass public employees. The PAC, however, noted that “FOIA generally does not condition disclosure of public records on the purpose of a request.” As a result, the Authority’s fear of harassment was irrelevant.

Closed Session Discussion on Salaries for a Group of Employees:

The first of the three final binding PAC opinions related to the OMA concerns the City of Lebanon’s discussion of across-the-board wage increases for non-union employees in closed session. When the City Council emerged from its closed session it took final action, approving a two percent increase for City employees.

Here, the City argued that its closed session discussion was permitted under Sections 2(c)(1) and 2(c)(2) of the OMA, which provide that a public body can enter into closed session to discuss: (1) the appointment, employment, compensation, discipline, performance, or dismissal of a particular individual; or (2) collective bargaining matters or salary schedules for one or more classes of employees. The PAC first determined that because Section 2(c)(2) was not cited at the time of the meeting as authority for entering into closed session, it was irrelevant to the analysis.

As a result, the PAC was left to determine whether Section 2(c)(1) provided the City Council with the authority to enter into closed session and discuss the wage increases. According to the PAC, because Section 2(c)(1) only authorizes a public body to discuss the compensation of a specific individual in closed session and no individual names were identified in the closed session, the City Council’s discussion in closed session violated the OMA.

The PAC’s decision, in this case, demonstrates the importance of two practices: (1) identifying a particular employee whose personnel matters will be the subject of discussion in closed session if the board is discussing individual employees; and (2) citing all applicable bases for entering closed session.

Recording an Open Meeting:

The third PAC opinion concerned a request made by a community member of the School Board President to record the Board meeting ten minutes prior to the start of the meeting. The district articulated two reasons for denying the request: (1) the requestor failed to provide 24 hours’ advance notice to the Board President or district Superintendent; and (2) the lack of notice made it impossible to guard against the presence of children or students being present at the meeting.

Section 2.05 of the OMA states that “any person may record the proceedings at meetings required to be open by this Act by tape, film, or other means. The authority holding the meeting shall prescribe reasonable rules to govern the right to make such recordings.” The Board asserted that its rule requiring advance notice was reasonable, and thus in line with the OMA. The PAC, after reviewing previous binding opinions, concluded that “a reasonable rule authorized by Section 2.05 is one that is designed to prevent disruptions or avoid safety hazards and [that] do[es] not unduly interfere with the right to record.” Absent a connection between the rule requiring advance notice of recording and preventing interference or ensuring safety, the Board’s rule was not a reasonable rule under Section 2.05.

The PAC found that the Board did not provide a sufficient reason as to why it could not have addressed the concern about children being recorded by moving the meeting to a different location or preventing children from accessing the areas visible on the recording. Additionally, the Board failed to provide an indication of how 24 hours’ notice, rather than 10 minutes’ notice, would have better allowed the Board to address this concern. Therefore, the PAC found that the Board’s rule unreasonably interfered with the public’s right to record.

In addition to the rationale stated above, the PAC also noted the futility of an advance notice rule because of the reality that most individuals have cellular phones that provide recording capabilities. As such, requiring advance notice is impractical. Therefore, school districts should review any advance notice rules regarding recording.

Final Action on a Matter not on the Agenda:

In the final binding decision of 2016, the PAC considered a public body’s decision to take final action on a matter that was not on the agenda. Section 2.02(c) of the OMA states: “Any agenda required under this Section shall set forth the general subject matter of any resolution or ordinance that will be the subject of final action at the meeting.” Here, the Village of Caseyville, against the advice of its attorney, voted on a motion to amend the terms of a settlement agreement in a lawsuit, though the action on the settlement was not explicitly listed on the agenda. The agenda for the meeting contained an item entitled “Old Business.” The Village Board determined that this designation was sufficient to allow them the authority to take final action on the matter. The PAC disagreed stating: “The ‘Old Business’ agenda item under which this discussion and vote occurred does not provide any information disclosing the ‘general subject matter’ of a settlement agreement to be considered under ‘Old Business.’”

This opinion makes two points clear: (1) agenda items must be sufficiently descriptive to provide advance notice of the matters upon which a public body anticipates taking final action, and (2) listen to your FOIA/OMA attorney!