Recent Court Decisions

On July 6, 2022, Requestor submitted a Request for Review to the PAC complaining that the Board of Education of Decatur Public School District No. 61 (School Board) had violated OMA by discussing building a new grade school with COVID-19 relief funds in closed sessions under the section 2(c)(5) exception.

Section 2(c)(5) permits public bodies to close a portion of the meeting to discuss “the purchase or lease of real property for the use of the public body, including meetings held for the purpose of discussing whether a particular parcel should be acquired.”

After reviewing minutes and verbatim recordings from several closed meetings between October 21, 2021 and June 28, 2022, the PAC concluded that the School Board had exceeded the scope of the exception. While discussion about potential sites for the new school may be held in closed sessions, the broader discussion about building a new school with COVID-19 relief funds was beyond the limited scope of the exception.

The PAC ordered the public body to make publicly available the closed session verbatim recordings and closed session minutes of the meetings. The limited portions relevant to acquiring particular properties may be redacted.

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

Michelle Yang, IASB Law Clerk

 

In November 2014, while running for election to the Poway Unified School District Board of Trustees (Board), two individuals (Trustees) created public Facebook pages to promote their campaigns. After winning their elections, Trustees changed the descriptions of their pages to state they were now government officials, and they continued to use their Facebook pages to post content related to district business. One Trustee also created a Twitter page related to her official duties. In their posts, Trustees invited the public to fill out surveys, shared information about upcoming events, and reported on Board action. Trustees did not establish any rules of etiquette or decorum regulating how the public was to interact with the pages.

Constituents who frequently commented on Trustees’ posts included Christopher and Kimberly Garnier (Parents), who had children attending the district and had been active in the district community for years, regularly attending Board meetings and emailing the Board about their concerns. Parents began posting lengthy and repetitive comments on Trustees’ social media pages. Frustrated with Parents’ repetitive posts, Trustees began deleting or hiding the posts and Trustees eventually blocked Parents from the pages. Then, Trustees began using Facebook’s word filter feature to effectively prevent all verbal comments on the pages. Parents filed a Section 1983 suit alleging Trustees violated their First Amendment rights by blocking Parents from public fora (the social media pages) and sought damages and declaratory and injunctive relief.

The U.S. District Court for the Southern District of California (District Court) granted Trustees qualified immunity as to the damages claim but allowed the case to proceed. Following a bench trial, the District Court found that Trustees’ social media pages were designated public fora and that Trustees’ decision to block Parents was content neutral and intended “to enforce an unwritten rule of decorum prohibiting repetitious speech on their social media pages.” Even so, the District Court granted judgment to Parents and awarded costs because Trustees’ indefinite blocking of Parents was not narrowly tailored to avoid repetitive comments.

Trustees appealed, arguing that they closed any public fora they had created on their social media pages when they blocked almost all comments using word filters, so Parents’ case was moot. The Appeals Court did not buy this argument, noting that Facebook word filters did not stop the public from reacting to posts (e.g., with a “like” or emoticons) and that Twitter did not have word filters. The Appeals Court affirmed that Trustees’ social media conduct was sufficiently related to their official duties to mean that they constituted state action (even if the Board did not fund or authorize them) because their posts concerned or promoted district business and the pages did not contain any disclaimer that the “statements made on this web site reflect the personal opinions of the author” and “are not made in any official capacity.” The Appeals Court also affirmed that Trustees violated Parents’ First Amendment rights when they blocked Parents from the social media pages and that Parents were entitled to relief.

While the Appeals Court noted that not every social media account operated by a public official is a government account and that specific facts and circumstances must be weighed, this case is an important reminder of factors that board members should consider when operating social media pages, including but not limited to: how the page is described and used, how members of the public and government regard and treat the page, whether the page has any rules of etiquette and decorum, and whether the page contains any disclaimers.

On April 10, 2022, Requestor submitted a FOIA request to the Village of Chatham (Village) seeking the “names and applications of the candidates for” a vacancy on the Village Board of Trustees. The Village denied the request under Sections 7(1)(c) and 7(1)(f) of FOIA, arguing that the application process was confidential and that “[c]andidates’ resumes and solicitations for appointment to office contain information for the Village to evaluate their credentials; however this information is not readily available to the public and does not become public merely by inclusion with an application to the Village.” Eventually the Village provided Requestor with responsive records for the successful candidate who was appointed to the Board of Trustees, but it continued to deny responsive records for the unsuccessful candidates. Requestor then filed a Request for Review with the PAC.

Upon review, the PAC first considered and rejected the Village’s assertion that candidates’ submissions were not public records. Not only did the submissions directly relate to both Village business and the interests of the Village community, but they were received and possessed by the Village. Next, the PAC considered Section 7(1)(c) of FOIA, which exempts from disclosure “[p]ersonal information contained within public records, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” To meet this exemption, the Village needed to demonstrate by clear and convincing evidence that the information at issue was highly personal or objectionable to a reasonable person and that the subject’s right to privacy outweighed any legitimate public interest in the information. The PAC held that the Village failed to meet this burden. Finally, the PAC considered Section 7(1)(f) of FOIA, which exempts from disclosure “[p]reliminary drafts, notes, recommendations, memoranda and other records in which opinions are expressed, or policies or actions are formulated.” Again, the PAC held that the Village failed meet its burden because it did not demonstrate that the contents of the responsive records revealed any opinions concerning the candidates.

Based on the above, the PAC held that the Village violated FOIA by improperly withholding responsive records. The PAC directed the Village to provide the responsive records to Requestor, except for permissible redaction of individuals’ personal phone numbers, home addresses, personal email addresses, and signatures as “private information” under Section 7(1)(b) of FOIA. This opinion is binding only to the parties involved and may be appealed pursuant to State law.
 

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.”