Recent Court Decisions

A public body approved a separation agreement with its former superintendent. Initially, the vote occurred in closed session (which the PAC found to be a violation of OMA in PAO 13-007). Later, the public body attempted to rectify the situation. It posted proper notice and an agenda with an action item to vote on the separation agreement in open session. The public body voted in open session on the separation agreement, which is now the subject of this opinion. The PAC concluded that the public body did not properly “recite the nature of its action” and “inform the public of the business being conducted,” despite the fact that it informed the public that the separation agreement was available as a viewable attachment to the agenda item for the open meeting. The PAC found this practice insufficient, stating:

1. Posting the separation agreement on the website together with the meeting agenda item only satisfies the “notice and posting” requirement of OMA; it does not satisfy the duty to publicly recite the nature of the action.

2. Before a public body may take final action, it must meet two additional requirements:

a. Publicly recite the nature of its action; and

b. Provide a “verbal explanation of the significance of its action to members of the public who are present at the meeting before it can proceed to consider taking action.” This explanation should provide information from which the public might understand the purpose and effect of the public body’s action.

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

“It has been more than a month since I filed the FOIA request shown below.”

These were the words of two reporters who filed several FOIA requests to a public body that went unanswered. While the public body continued to indicate it would provide an answer to the requesters and the Public Access Counselor, it did not do so nor did it properly extend its time to respond. The public body was directed to “take immediate and appropriate action to comply with this opinion by providing records responsive to [the FOIA requests].”

See PAOs 14-007 and 14-010 for the rules public bodies must follow when responding to FOIA requests.

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

“Anyone” means just that: anyone – without regard to where they reside.

A rule that requires someone to state his or her address before speaking to a public body violates the Open Meetings Act (OMA). OMA states, “[a]ny person shall be permitted an opportunity to address the public officials under the rules established and recorded by the public body[.]”

Here, public officials asked a woman trying to address them to state her home address before beginning her comments. She did not particularly wish to do so, but eventually did. Then, she filed a request for review with the Ill. Public Access Counselor.

This opinion states that any rule, whether in policy or by custom or practice, that requires a person to provide an address before addressing a public body, is not a rule that “ensures that order and decorum are maintained at public meetings,” which violates the OMA.

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

Photographs are not “private information” nor do they contain “biometric identifiers.

A police department denied a FOIA request for an officer’s basic headshot photographs. The department claimed the photographs were “private information” under FOIA because they contained “biometric identifiers.”

The PAC disagreed and ordered the photographs to be disclosed. FOIA does define “private information” to include “biometric identifiers.” But, the term “biometric identifiers” does not include the term “photographs.” Photographs are public records under FOIA and must be released when requested.

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

“Try, discuss, and explain…” is the theme of this PAC opinion.

TRY: When a public body responds to a FOIA request, its search for the requested records must be reasonably “tailored to the nature of a particular request” and “reasonably calculated to uncover all relevant documents.” And, the public body should be able to show that it searched all records management systems that are likely to turn up the requested information.

DISCUSS: if a public body wishes to treat a request as unduly burdensome, then it shall extend an opportunity to the requestor to discuss reducing the request. If that does not work, then timely asserting an undue burden during the timeframes outlined in the statute is required.

EXPLAIN: If the search returns no responsive records for the request, the public body should explain why no records were found. The explanation should demonstrate that there were no alternative methods to find the requested records or why that it was not practical to search other sources for the requested information.

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