Public Access Counselor Issues Guidance on OMA and FOIA

Public Access Counselor Issues Guidance on OMA and FOIA

By March 19, 2020 News No Comments

Yesterday, the Illinois Public Access Counselor (“PAC”) issued guidance on the two laws within its purview, the Open Meetings Act (“OMA”) and the Freedom of Information Act (“FOIA”), in light of the COVID-19 pandemic. This guidance, comes on the heels of the Governor’s March 16 Executive Order 2020-07. Most of the guidance reiterates information we shared with you on Monday, but a brief summary of the latest guidance is below.

What’s the latest on remote participation by Board members?

As a reminder, the Governor’s Executive Order prohibits gatherings of 50 people or more, suspends the OMA requirement that a quorum has to be physically present, and suspends the limitation that a Board member could only participate remotely for one of three specific reasons. The PAC guidance reiterates those requirements. Please note that, due to questions emerging regarding the scope of the Governor’s authority, we advise consulting with legal counsel before utilizing the flexibility under this Executive Order; and we further advise adhering to the existing statutory process, when possible, for meetings with decisions of unusual importance (i.e., RIFs, financings, issues of heightened community importance).

For those school boards that are issuing bonds, please note that bond counsel may require strict compliance with OMA as written in order to issue an opinion on the bonds. To avoid any ambiguity, we strongly recommend following your normal OMA rules (i.e., at least a quorum of the Board be physically present, and no voting by Board members unless they are absent for one of the three statutory reasons) if you are taking action on bonds at your meeting and that you confirm any planned variations from the statutory OMA process with bond counsel in advance of the meeting.

What’s the latest on the ability of the public to attend and comment at Board meetings?

As we have shared previously, members of the public arguably can’t be excluded from Board meetings but should be encouraged to practice social distancing. For members of the public who are watching or listening to the meeting remotely, the PAC urges public bodies to provide public commenters a means to submit their questions during the meeting and an opportunity to submit their comments in advance and have them read aloud at the board meeting. For those public commenters who show up to a meeting in person, they likely should be allowed to comment as usual but should keep a safe distance from one another.

Did the PAC guidance provide any relief from the statutory FOIA deadlines?

In a word, no. The bottom line is that the original deadlines still stand: five business days to respond, five more business days if you take an extension, and you’re at the requester’s mercy to agree to a deadline beyond that. Practically, do the best you can with the resources you have!

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