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November/December, 2010

Statutory changes will affect election filings, FOIA requests

The question for this issue is answered by Anna Lovern, IASB director/ policy services and Melinda Selbee, IASB general counsel.

Question : I understand that, due to the change in the Election Code, some of the deadlines for filing election materials fall during the time when our schools are closed for winter break. And we’re also wondering about FOIA requests during the same time. How should we fulfill these obligations?

Answer : Legislation passed during this year’s General Assembly session and signed by the Governor in July moved a number of the election dates forward by as much as a month. Questions have arisen in addition to those concerning the actual election calendar. While this column addresses the specific question posed for the column, the only place to obtain legal advice is from the board’s attorney.

In past years, the filing dates for nominating petitions have occurred in January. For the next school board election, the filing dates are in December. The first day for filing is December 13, 2010, and the final day is December 20, 2010.

Few, if any districts will close for winter break as early as December 20, so the last day for filing nominating petitions should be business as usual in most districts. However, the law is clear that the office of the local election official, usually the board or district secretary, must be open until 5 p.m. of that last day, regardless of the regular closing time for the office.

The period for filing objections to nominating petitions begins after the last day for filing and continues for the five business days following the final filing date. Most school districts will likely be out for winter break during at least a portion of that time.

Since weekends are not counted as “business days,” this year the last day for filing objections is December 28. This is also the last day that a candidate who has filed for two seats, perhaps for a full-term seat and a partial term, may file a “withdrawal of candidacy” form for one of the seats. Failure to withdraw from running for one of the open seats means that the individual’s name will not appear on the ballot for either seat.

In addition, if there are simultaneous filings on the first day, a lottery must be held before December 29 to determine position on the ballot. This duty may be performed at any time between December 20 and December 29, so it should be possible to post the appropriate notices and hold the lottery earlier, rather than later.

Opinion is split as to how a school district’s local election official can satisfy these legal requirements. One suggestion is that the district post the dates and times when someone will be available in the district office to accept objections and withdrawal forms. After all, there are public offices in some small jurisdictions that are not open for a five-day week at any time. The thinking on this side is that if the opportunity to file objections is clearly defined in advance, no harm is done.

However, another opinion is that districts must comply with the “five business days” requirement of the Election Code. The Election Code defines a “business day” as “any day in which the office of an election authority, local election official or the State Board of Elections is open to the public for a minimum of seven hours.”

Under this definition the “day” would not be a business day unless the office is open for a minimum of seven hours. An office that was open less would not be providing the “five business days” required for filing objections to petitions.

The Illinois State Board of Elections and the appropriate county clerk are good places to contact for election guidance.

Changes in FOIA

This also will be the first major holiday season since the Freedom of Information Act (FOIA) changes went into effect last January. A school district must still comply with a FOIA request even if it is made during the extended winter break. The Illinois Public Access Officer, a statutory position in the Attorney General’s office, specifically addressed this issue in the publication “Frequently Asked Questions by Public Bodies,” as follows:

“What is a ‘business day’ or ‘working day’? A ‘business day’ or ‘working day’ is a regular day of the week (Monday through Friday) when public offices and most businesses are open. Saturdays, Sundays and legal holidays are not business days and cannot be counted in the five business day time period.

“If a public body’s office is closed for vacation (for instance, a public school is closed for winter break), are FOIAs submitted during that time considered received? Yes. FOIA does not have any exceptions for vacations or winter breaks, other than for Saturdays, Sundays and legal holidays.”

Consequently, a district must either comply with or deny a request for public records within five business days after the receipt of the request, unless the time for response is properly extended under subsection (e) of 5 ILCS 140/2, or the person making a request and the district agree in writing to extend the time for compliance.

The district FOIA officer should plan ways to manage the possible receipt of a FOIA request during winter break, such as, by asking requesters to delay making a request. For example, the FOIA officer could include an automatic reply to e-mails asking individuals to delay making a request for records until the district office re-opens after the winter break.

Districts with questions should check with their attorney for an opinion on any matters involving FOIA or the election process, and follow that advice.

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