Recent Court Decisions

The Village of Sauk Village (Village) violated OMA by failing to approve minutes of three meetings within the time periods required by OMA.

At its regular meeting on November 12, 2019, the Village approved minutes from its September 10, 2019 regular meeting, its September 10, 2019 special meeting, and its September 17, 2019 Committee of the Whole meeting. Section 2.06(b) of OMA requires that public bodies “approve the minutes of its open meeting within 30 days after that meeting or at the public body’s second subsequent regular meeting, whichever is later.” Section 2.06(b) further requires that approved minutes be made available for public inspection within 10 days after approval by the public body.

Responding to the PAC’s inquiry, the Village admitted it had failed to approve minutes during the time period required by Section 2.06(b), but argued that it was “impossible to meet the tenets of OMA relative to completing minutes within a thirty (30) day period” due to a “significant increase in meetings” and staffing shortages. The PAC found that the plain language of Section 2.06(b) was clear and that it contained no exception that authorizes a public body to delay approval of minutes. The PAC ordered the Village to develop protocols to ensure that it approves all meeting minutes within 30 days of those meetings or at its second subsequent regular meeting, whichever is later.

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

The City of Bunker Hill (City) violated FOIA by deleting, and thus failing to provide, a requested record in response to a FOIA request. On September 12, 2019, the Requestor requested the audio recorded minutes from the City’s Committee of the Whole meeting on September 11, 2019. On September 19, 2019, the City returned the FOIA request form the Requestor had completed with a handwritten note in the margin stating that the City’s attorney had stated on September 18, 2019 that the September 11, 2019 meeting was not an actually meeting because there was no quorum present and so there was no need to fulfill the FOIA request. The next day, the Requestor submitted the matter to the PAC for review.

When the PAC phoned the City on October 4, 2019, it was informed that the audio recording was deleted after the City received Requestor’s FOIA request. Further investigation revealed that upon the City attorney’s advice, the City deleted the audio recording after the attorney had advised that the September 11, 2019 meeting was not an actual meeting.

The PAC first determined that the audio recording was a “public record” under FOIA Section 2(c), which defines public records to include all records – including recordings – in the possession of a public body which pertain to the transaction of public business. The PAC next determined that the City possessed the audio recording when it received the FOIA Request, and no provision of FOIA authorizes a public body to destroy responsive records after receiving a FOIA request. Thus, the City should have either provided the audio recording to the Requestor or issued a proper denial in accordance with Section 9(a) of FOIA. As a result, the PAC ordered the City to determine whether it could retrieve the deleted recording and, if so, provide the Request with a copy. It further ordered the City to create protocols to ensure that, in the future, it appropriately complies with FOIA requests and that it preserve responsive records after receiving a FOIA request for them.

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

The Cook County Assessor’s Office (Assessor) violated Section 3(d) of FOIA by failing to respond to a FOIA request.

Requestor emailed a FOIA request to the Assessor on July 9, 2019, seeking “all applications for permits, permits, denials of permits and correspondence related to” five properties located in Lincolnwood, Illinois from January 1, 1950 to July 9, 2019. Requestor did not receive a response to his request.

On July 26, 2019, Requestor submitted a Request for Review to the PAC, alleging that the Assessor failed to respond to his FOIA request. On August 1, 2019, the PAC forwarded a copy of the Request for Review to the Assessor and asked the Assessor whether or not it had received and responded to Requestor’s request. The Assessor did not respond to the PAC. As of the date this binding opinion, neither Requestor nor the PAC had received a response from the Assessor’s Office.

Section 3(d) of FOIA states that “each public body shall, promptly, either comply with or deny a request for public records within 5 business days after its receipt of the request…” Because the Assessor did not comply with Section 3(d), the PAC ordered the Assessor to take immediate and appropriate action to provide Requestor with all records responsive to his request, subject only to permissible redactions.

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

The City of Waukegan (City) violated FOIA by refusing to disclose office-worn body camera recordings of the arrest and death of a suspect.

On July 1, 2019, a Waukegan resident (Requestor) submitted a FOIA request to the City for copies of “"all dash Cam, body camera video and audio recordings leading up to as well as the attempted arrest and death of [the arrestee]…[on] Thursday, June 27, 2019." The City provided Requestor with some information from the incident, but denied the requested camera recordings based on Sections 7(1)(d)(i) and 7(1)(d)(vii) of FOIA and the Law Enforcement Officer-Worn Body Camera Act (Body Camera Act, 50 ILCS 706/). Section 7(1)(d)(i) of FOIA states that requests that “interfere with pending or actually and reasonably contemplated law enforcement proceedings conducted by any law enforcement…” may be exempt from FOIA. Section 7(1)(d)(vii) likewise exempts public bodies from FOIA requests that would, “obstruct an ongoing criminal investigation by the agency that is the recipient of the request.” Section 10-20(b) of the Body Camera Act states that “[r]ecordings made with the use of an officer-worn body camera are not subject to disclosure under the Freedom of Information Act.”

Requestor submitted a Request for Review to PAC on July 18, 2019, contesting the withholding of the camera recordings. The City responded by providing the PAC with copies of the responsive camera recordings, along with related records, and asserting that there were two open investigations related to the suspect. The City argued that “premature disclosure would inhibit impartial resolution" and that “disclosure presents a risk to the safety and the potential of intimidation of witnesses and their families.” The PAC rejected the City’s arguments for non-disclosure, finding them vague and stating that “[t]he City did not explain how disclosure would pose a risk to the life or physical safety of any person” and “did not set forth facts as to how disclosure of these particular body camera recordings would interfere with any ongoing investigation or other law enforcement proceedings.” Moreover, Section 10-20(b) of the Body Camera Act also provides that body camera recordings flagged “due to the filing of a complaint, discharge of a firearm, use of force, arrest or detention, or resulting death or bodily harm” must be disclosed pursuant to FOIA. The PAC ordered the City to immediately disclose copies of the recordings to the Requestor, subject only to any redactions required by the Body Camera Act.

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

The Rushville City Council (Council) violated OMA by refusing to let a non-resident member of the public (Requestor) speak during public comment in violation of Section 2.06(g) of OMA.

Requestor submitted a Request for Review to the PAC on August 1, 2019, alleging that the Council violated OMA by refusing to let her speak at its July 1, 2019 meeting during the public comment session. Requestor said that she stood up to speak but the Mayor dismissed her request, saying “no ma' am, I listened to you for two months and you have no standing to be here, you don’t live in this town, you don't vote in this town and you have no reason to be here. I have heard two months of it and I'm not hearing anymore!'" Requestor asked the Council if the Mayor could do this, and one member responded by saying that, “[the Council would] ask for legal [counsel] to see if the Mayor can do this.”
On August 7, 2019, the PAC forwarded a copy of the Requestor’s Request for Review to the Council, asking it to provide a detailed response to Requestor’s allegations, copies of Council rules governing public comment, and copies of the agenda, minutes, and any recordings of the July 1 meeting. The Council did not provide the PAC with its rules governing public comment, and simply stated they adopted Roberts Rules of Order. The Council also acknowledged that it refused to let Requestor speak on July 1 because she was a non-resident.

Though the Council may set rules regarding public comment, Section 2.06(g) clearly states that “[a]ny person shall be permitted an opportunity to address public officials under the rules established and recorded by the public body.” So even if the Council had adopted a rule prohibiting non-residents from speaking, that would have violated OMA. The PAC ordered the Council to refrain from applying unestablished and unrecorded rules to restrict public comment at future meetings, and to refrain from limiting public comment to City residents.

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