This case may be of interest to school officials because the Illinois Eavesdropping statute applies to any conversation, including lawfully closed meetings under the Illinois Open Meetings Act. What that means is that while a recording of a closed meeting is required by the Illinois Open Meetings Act, an individual in a closed meeting making his or her own recording without the knowledge or consent of others present in the closed meeting would violate the Eavesdropping statute in Illinois. This case discusses the “fear of crime” exception to the Illinois Eavesdropping Act.

Mary Carroll called her coworker, Jim Kelliher late on a Thanksgiving Day. According to Carroll, she was “riled up” and she snapped on the phone. Kelliher’s wife overheard Carroll on the other end of the phone and recorded the conversation without Carroll’s knowledge. Kelliher was frightened after the phone call, and he reported it to his supervisors at Merrill Lynch. Carroll was fired for the phone call and initiated this suit as a violation of the Illinois Eavesdropping statute. The Illinois Eavesdropping statute prohibits recording conversations without the consent of all the parties and the subsequent use of that recording. 720 ILCS 5/14-2 (a)(1). The fear of crime exemption allows unauthorized recordings under a reasonable suspicion that another party to the conversation is committing, about to commit, or has committed a criminal offense against that person or a member of his or her immediate household. To determine a reasonable suspicion, the exemption requires that (1) a subjective suspicion that criminal activity is afoot, and (2) that the suspicion be objectively reasonable.

Carroll argues that the failure of Kelliher to call the police means that there was a lack of reasonable suspicion. However, Illinois criminalizes phone calls made with the intent to abuse, threaten or harass any person at the called number. 720 ILCS 135/1-1(2). Carroll’s own admission that she was angry and snapped on the phone can be used as evidence of the abusive nature of the phone call. Further, Kelliher’s wife had a reasonable suspicion of a crime, so her recording fell under the fear of crime exemption.

Rachel Prezek, IASB Law Clerk

A school principal wrote a rebuttal to a separation of employment letter from the superintendent. A local newspaper requested the copy of the rebuttal letter under the Freedom of Information Act (FOIA). The school denied disclosure under section 7(1)(C) for personal privacy and 7.5(q), which prevents disclosures otherwise prohibited under the Personnel Record Review Act. The school sent the office of Public Access Counselor (PAC) a preauthorization request indicating the intent to deny disclosure under the two exemptions under the FOIA. PAC addressed both exemptions and found that neither was applicable to the school. The Illinois Press Association then sent the school a letter asking them to reconsider the denial of releasing the letter. The school responded by asserting a third exemption under the FOIA. This exemption was section 7 (1) (n), which exempts records relating to a public body’s adjudication of an employee grievance or disciplinary case. The newspaper did not wait to hear from PAC concerning the third exemption and filed suit. After filing suit, the school released the letter to the newspaper on their own accord.

In filing suit, the newspaper was now looking to collect attorney’s fees and to impose a civil penalty on the school for their delay in disclosure. The school did not have to pay the newspapers attorney’s fees because the newspaper did not prevail. In order to prevail, the newspaper had to have received judicially sanctioned relief. The school released the letter without any direction from the court and the newspaper did not prevail. A civil penalty was imposed on the school according to section 11 (j) of the FOIA. The court found that the school willfully and intentionally failed to comply with the FOIA and was fined $2,500.

Rachel Prezek, IASB Law Clerk

A three-member Board of Trustees (Board) held a meeting where two of its members attended. Two members equal a quorum on this type of public body. The members who attended the meeting were Mr. Bertrand and Ms. Mallory. During the meeting, they went into closed session to discuss a proposed settlement agreement of a lawsuit against the Board, brought by Mr. Bertrand. When the closed session ended, Ms. Mallory moved for the Board to approve a settlement agreement with Mr. Bertrand. Mr. Bertrand seconded the motion. Ms. Mallory voted “yea,” and Mr. Bertrand abstained from voting. The Board considered the motion passed.

Community members sued the Board over this motion. Then, the Ill. Attorney General intervened (took over). It argued that the settlement agreement was void for two reasons: (1) Mr. Bertrand’s actions violated section 3(a) of the Public Officer Prohibited Activities Act (“Act”) because he participated in the negotiation of the settlement agreement, and (2) Ms. Mallory’s one yea vote out of a quorum of two members did not equal a majority to pass the motion for approval of the settlement agreement.

Agreeing with both arguments, the court held the settlement agreement was void. First, the court held that Mr. Bertrand had personal pecuniary interests that conflicted with his duty not to use his elected office for his own financial gain. Conflict of interest statutes are passed to “discourage this type of ethical dilemma and the abuses that stem from it.” Second, the court held that although the Board had a quorum and could legally hold a meeting with a quorum of two, one vote for the proposed settlement agreement was not enough to pass the motion. A majority means the number greater than half of any total. When an affirmative vote of yes is required (e.g., expenditures of money), then only an actual “yea” or “aye” vote is counted toward passage of the motion. Any abstention or attempt to vote other than “yea” or “aye”, including abstaining, operates as a “nay” vote. Mr. Bertrand’s abstention had the effect of a “nay” vote.

Heinrich submitted a Freedom of Information Act (FOIA) request for access to administrative decisions by the Department of Motor Vehicles (DMV) regarding licenses that were suspended or revoked by the Secretary of State (SOS). Heinrich also requested the DMV decisions within one year. This request sought documents that were not yet created, but it also sought records that did exist. The SOS denied Heinrich’s FOIA request because (1) the information contained in the documents was private, and (2) the requested documents did not exist.

Under 2-123 (f-5) of the Ill. Vehicle Code, the SOS cannot disclose or make otherwise available any personally identifying information obtained by the SOS in connection with a driver’s license, vehicle or title registration record. However, this section does not include information like vehicular accidents, driving violations, and driving status. Under section 7 of the FOIA, personal information like driver’s license numbers or home addresses are exempt from disclosure.

The appellate court concluded that the SOS should have turned over the documents with the personal information redacted. A FOIA request cannot be dismissed because part of a request is invalid, and although the documents contained private information, it could be redacted (blacking-out private information). While the trial court decided that the redacted documents were likely useless, the appellate court found that it is not the trial court’s job to decide if redacted documents are useless.

The SOS also argued that the production of the documents would be burdensome. However, the appellate court offered that to prove that a request is burdensome, the elements that must be present are: (1) compliance with the request must be unduly burdensome, (2) there must be no way to narrow the request, and (3) the burden on the public body must outweigh the public interest. The case was reversed and sent back to the lower court to review the burden of Heinrich’s request under this test and Heinrich’s continued need for the information.

Rachel Prezek, IASB Law Clerk

The plaintiff, Roxana school district (district) was concerned about its tax revenue decreasing based upon certain certifications that the Pollution Control Board (PCB) was granting to the co-defendant WRB. The district alleged that another public body like itself, the PCB, and the other co-defendants violated the OMA when granting these certifications. But instead of writing to the public access counselor, the school district requested the court to issue a preliminary injunction (a court order to stop the PCB from holding closed meetings) under the OMA.

The court issued a preliminary injunction against the PCB, ordering it to (1) stop violating the OMA and (2) hold its future meetings “with WRB” in public. WRB appealed the order with two arguments. First, it argued that the preliminary injunction should not apply because the court did not follow the general rule of law that applies when a court issues a preliminary injunction. Specifically, WRB wanted the chance to dispute the school district’s allegations before the court ordered the preliminary injunction. Second, WRB argued that the order was too narrow because it only applied to meetings “with WRB” and the PCB, not “all” entities that appear before the PCB.

The court held that the language in the OMA creates an exception to the general rule of preliminary injunctions. That means the court had full authority to issue the preliminary injunction under the OMA without allowing WRB to dispute the school district’s allegations as it could under the general rule. However, the court did modify the order specific to WRB to “more closely comport with the equity and the intent of the OMA” by applying it to “all” entities’ business before the PCB.

This decision is a reminder to school officials that courts have authority to order them to hold their meetings in public and always follow the intent of the OMA. Violating a court order can sometimes lead to various contempt of court allegations. It is also an example that public bodies can allege violations against each other. For questions about your district’s specific OMA practices contact the board attorney.