The Top Five Takeaways from the Public Access Counselor’s 2019 Binding Opinions

The Illinois Attorney General’s Public Access Counselor was once again busy during 2019, issuing binding decisions of interest to public entities governed by the Illinois Open Meetings Act and Freedom of Information Act. We covered many of these decisions at the time they were released, but return to provide you the top five takeaways from these decisions as the year ends. 

1. Put your public comment limitations in policy, but don’t shut out nonresidents. In PAC Opinion No. 19-002, which we covered in January, the PAC refused to allow a board of education to rely on past practice of limiting public comment to a total of 15 minutes at each meeting because the limitation was not in the board’s formally adopted policies. So, remember to put your public comment limitations in writing. Do not, however, prohibit nonresidents from participating. In a later 2019 decision, PAC Opinion No. 19-009, the PAC reminded us that it does not support limitations on public comment based on the speaker’s resident status.
2. Respond to your FOIA requests. As we reported in our February FOIA Roundup, the PAC got back to basics for public bodies this year with this reminder: If you do not respond to a FOIA request within five days, let alone at all, the PAC will require you to provide all requested records even if it would be unduly burdensome to do so. You also will not be able to impose copying fees for your response. This might seem like an obvious fact, but the PAC had not one, not two, but three decisions on this issue this year. So, make sure you respond to those FOIA requests on time!
3. Read … something … before acting on a notice to remedy. Since Board of Education of Springfield School District, we have known that a public body’s recital prior to taking final action “must announce the nature of the matter under consideration, with sufficient detail to identify the particular transaction or issue, but need not provide an explanation of the terms or its significance.” But public bodies have been working through what this “sufficient details” looks like ever since. School boards particularly have struggled with how to meet that standard with respect to notices to remedies, which must be given to tenured teachers before termination for remediable conduct. In PAC Opinion 19-004, the PAC found an OMA violation where a school board failed to read aloud the name of the teacher who would receive the notice to remedy prior to voting on the resolution. Although this result certainly is not required by the Springfield decision or any authority outside of the PAC, public bodies should be aware of the position the PAC is taking on the issue. 
4. Plan for a high bar to exempt proprietary commercial information under FOIA. In PAC Opinion 19-007, the PAC addressed something none of us likely know much about or will ever need to—reports of manganese throughputs submitted to a public body. The exemption at issue, however—Section 7(1)(g) as it applies to commercial or financial information that would cause competitive harm to a person or business if released—is one that is very familiar to those of us who work with FOIA. The takeaway from this decision: If you want to claim something will cause competitive harm, you had better have some hefty facts to support your claim. Even if a record contains commercial information, is submitted under a claim of confidentiality, and theoretically is of use to competitors, that may not be sufficient to show competitive harm.
5. Don’t expect your agenda readers to do their own research. In PAC Opinion No. 19-012, the PAC addressed the OMA requirement that an agenda provide sufficient advance notice of the general subject matter of a public body’s final action before that action occurs. The public body in the case voted to amend an ordinance, which the agenda referred to as “Section 33-4-4(F).” The agenda did not identify that “Section 33-4-4(F)” was part of the City Code or that it pertained to a particular subject matter (permit applications and fees). The PAC did not find persuasive the city’s argument that a reader of the agenda could look at the online city code to find the relevant section and learn what it was about, in part because the agenda did not include a link or reference the code. The PAC also more generally was not willing to “requir[e] members of the public to access online resources to decipher the general subject matter of items listed on an agenda,” however.

We will continue to monitor and update you on the PAC’s binding and nonbinding decisions through the end of the year and into 2020. For questions on any of these decisions or any other FOIA or OMA question, contact the authors of this post or any other Franczek attorney.