Recent Court Decisions

On April 11, 2022, Requestor submitted a Request for Review to the PAC seeking review of three closed sessions held during a special meeting of the Board of Education of Du Quoin Community Unit School District No. 300 (Board) on April 7, 2022. Requestor was concerned that a pending student transportation bid was improperly discussed during one of the closed sessions.

The PAC reviewed verbatim recordings of the Board’s three closed sessions and learned that the first and third closed sessions were entered under OMA Section 2(c)(1), which permits a public body to enter closed session to discuss “[t]he appointment, employment, compensation, discipline, performance, or dismissal of specific employees.” The PAC found the Board properly limited its first and third closed session discussions to this topic.

The Board’s second closed session was entered under OMA Section 2(c)(11), which permits a public body to enter closed session to discuss “[l]itigation, when an action against, affect or on behalf of the particular public body has been filed and is pending before a court or administrative tribunal, or when the public body finds that an action is probably or imminent, in which case the basis for the finding shall be recorded and entered into the minutes of the closed meeting.” The Board’s discussion during the second closed session, however, concerned what course of action to take in awarding a bid for a student transportation contract. None of the materials the Board submitted to the PAC indicated that the Board had a reasonable basis to believe litigation was likely and, even if such a basis had existed, the PAC found that the Board did not limit its discussion to strategies, posture, theories, and consequences of litigation.

As a result, the PAC held that the Board violated Section 2(a) of OMA by failing to publicly disclose and enter into the minutes an exception authorizing the second closed session of the April 7th meeting. The PAC ordered the Board to remedy this violation by disclosing to the Requestor and making publicly available the verbatim recording and minutes of its second closed session.

This opinion is binding only to the parties involved and may be appealed pursuant to State law

On January 17, 2022, Requestor submitted a FOIA request to the City of Berwyn (City) seeking the following information for each city employee covered by the collective bargaining agreement with the SEIU Local 73: name, title, hire date, department name, work address, work email, and union. City denied the request under Section 7.5(zz) of FOIA, which exempts from disclosure “[i]nformation prohibited from being disclosed under the Illinois Public Labor Relations Act.” The City asserted this exemption based on Sections 6(c-5), 10(a)(8), and 10(a)(9) of the Illinois Public Labor Relations Act (IPLRA). Requestor then submitted a Request for Review to the PAC.

Upon review, the PAC noted that Section 6(c-5) of the IPLRA prohibits a public body from disclosing certain employee information, including “any information personally identifying employee membership or membership status in a labor organization or other voluntary association affiliated with a labor organization or a labor federation.” The PAC found that Section 6(c-5) was specifically intended to insulate employees from third party communications concerning their union membership status, and thus the City sustained its burden of proving by clear and convincing evidence that the responsive records were exempt from disclosure under FOIA Section 7.5(zz).

This opinion is binding only to the parties involved and may be appealed pursuant to State law. It’s lesson, however, is important for school districts because parallel exemptions and prohibitions appear in FOIA and the Illinois Educational Labor Relations Act (IELRA). FOIA Section 7.5(yy) exempts from disclosure information that is prohibited from being disclosed under the IELRA, and Section 3(d) of the IELRA prohibits educational employers from disclosing certain employee information, including “any information personally identifying employee membership or membership status in a labor organization or other voluntary association affiliated with a labor organization or a labor federation.”
 

On April 13, 2022, Requestor submitted a Request for Review to the Public Access Counselor (PAC) complaining that the Shelby County Board Farm Committee (Committee) had violated OMA by voting on two items – hiring an individual to buy crop insurance and borrowing $7,500 for crop expenses – even though these items were not listed on the agenda for its April 7, 2022 meeting. The Committee asserted that it had provided sufficient advanced notice of these actions because they were “germane” to a matter listed on its agenda as “Discussion and vote on recommendation to the County Board regarding farming options for the County Farm.”

Section 2.02(c) of OMA requires that a public body’s posted agenda “set forth the general subject matter of any resolution or ordinance that will be the subject of final action at the meeting.” The PAC noted that the Illinois Supreme Court indicated, in Bd. of Educ. of Springfield Sch. Dist. No. 186 v. Atty Gen. of Ill., that Section 2.02(c) requires a public body’s agenda to include sufficient detail to notify members of the public of the types of final actions that public bodies anticipate taking. Taken together, the PAC found this to mean that the general subject matter of the Committee’s final actions were to recommend that the County Board (1) borrow money for crop expenses, and (2) attain crop insurance. Because the Committee’s agenda did not contain agenda items identifying these as general subject matters of its final actions, the PAC held that the Committee violated Section 2.02(c) of OMA. The PAC directed the Committee to include the general subject matter of its anticipated final actions on its agenda for future meetings.

This opinion is binding only to the parties involved and may be appealed pursuant to State law.
 

On February 15, 2022, Requestor submitted a Request for Review to the Public Access Counselor (PAC), complaining that the Board of Education of Community Consolidated School District No. 93 had “voted” to make masks optional in the District without including an action item on the agenda. At its regular meeting on February 10, 2022, the Board had a thorough discussion about the COVID-19 mitigation plan presented by the Superintendent and came to a consensus to remove the mask requirement and instead recommend masking. The Board directed the Superintendent to send out messaging that the masks would be recommended, but not required, beginning February 14, 2022. The Superintendent’s subsequent message to the school community indicated that the Board had made the decision at its last board meeting to transition away from the mask requirement.
 
The Board contended that it did not violate Open Meetings Act (OMA) because while it discussed the mitigation plan during the meeting, it never took a roll call vote on the plan. In support of its position, the Board cited several Illinois court cases holding that there is no final action under OMA unless there is a public vote. Nevertheless, the PAC found that failure to treat the board’s consensus decision as a final action under OMA would be contrary to the legislative intent provided in Section 1 of OMA, to give “citizens advance notice of and the right to attend all meeting at which any business of a public body is discussed or acted upon in any way.” The PAC stated that “OMA does not permit a public body to make and implement a decision concerning a substantive matter, such as masking guidelines in public schools for student and staff during a pandemic, without providing the general subject matter of that decision on the meeting agenda.”
 
This PAC opinion serves as a reminder that public bodies are less likely to attract OMA complaints if they err on the side of transparency, especially when it comes to more controversial issues in which there is a high level of public interest.
 
This opinion is binding only to the parties involved and may be appealed pursuant to State law.

On November 8, 2021, Requestor, on behalf of CBS Chicago, requested from the City of Chicago’s Department of Human Resources (1) disciplinary records for a specific City employee, (2) records of any complaints of racism, discrimination, or harassment made against that employee, and (3) records of any complaints of racism, discrimination or harassment filed in the past 5 years against City employees who worked at a specific Streets and Sanitation Facility.  The City provided records in response to the first request but denied the second and third requests in their entirety on two bases. First, the City claimed the responsive records were exempt from disclosure under Section 7(1)(c), because they contained personal information that if disclosed, would constitute a clearly unwarranted invasion of privacy. The City claimed that the privacy rights of the complainants outweighed the public interest in the records, and it claimed that if the records were released, complainants would be less likely to come forward. Second, the City claimed the records were exempt under Section 7(1)(f) because they contained pre-decisional and deliberative material.
 
Regarding Section 7(1)(c), the PAC concluded that the responsive records must be disclosed because it was not an unwarranted invasion of personal privacy under Section 7(1)(c) to disclose information that bears on the duties of public employees, even if doing so would discourage the filing of future complaints. Additionally, the PAC found the public’s interest in knowing about the extent of discrimination that may exist in a taxpayer-funded department (even if ultimately unfounded) outweighed the complainant’s privacy interests. However, to protect individuals’ privacy, the PAC stated that the identifying information of complainants, witnesses, and third parties mentioned in the records, as well those portions of the complaints that included graphic or salacious details or details about the complainant’s families or private lives could be redacted.
 
The PAC also rejected the City’s reliance on the exemption in Section 7(1)(f), noting it only exempts from disclosure records “in which opinions are expressed, or policies or action are formulated.”  Here, the PAC concluded that while the complaints are preliminary in nature, they did not reflect any decision-making process by the City; they were limited to factual information and allegations.
 
This opinion is binding only to the parties involved and may be appealed pursuant to State law.