PAC Finds OMA Violation for Restriction on Public Comment at Meeting and more...

PAC Finds OMA Violation for Restriction on Public Comment at Meeting

The Public Access Counselor of the Illinois Attorney General's Office (PAC) issued its first binding opinion of 2026 finding a public body in violation of the Illinois Open Meetings Act (OMA) by limiting a speaker during public comment. PAC Op. 26-001.

An individual filed a request for review with the PAC claiming that a public body violated the OMA when the mayor interrupted her during her public comment before the village board at its meeting. Specifically, she claims the mayor told her she could not say the names of village trustees, turned off the audio system and had the microphone removed, tried to cut her off before her 3 minutes were up, and asked the police chief to remove her from the meeting.

In response, the village board defended its actions, arguing that its public comment rules and Roberts Rules of Order allowed the mayor to enforce rules of decorum to avoid disruptions and maintain order at village meetings.

The PAC acknowledged that a public body could terminate "inflammatory comments" that cause disruption in order to ensure that its meetings can be conducted in an efficient manner. However, the PAC determined that this speaker had not made inflammatory comments and that any disruption to the meeting was created by the mayor improperly interfering with the speaker's right to address the board during public comment. The PAC also noted that the village board's public comment rules did not restrict speakers from naming village officials or employees during public comment, and questioned whether this type of rule would be consistent with the OMA. The PAC also suggested this type of rule could be unconstitutional if it was intended to censor protected critical speech against a public official. Because the speaker did not disrupt the meeting, the PAC determined that the village board's restrictions on her speech violated 2.06(g) of OMA (the provision of OMA that requires public bodies to provide members of the public with an opportunity to address the public body at its meetings).

City's Citizen Flag Pole a Public Forum, Not Government Speech

We previously reported on a decision by the U.S. Supreme Court that a city's policy in allowing private groups to place flags on the city's flag pole rendered the speech protected speech under the First Amendment. The First Circuit Court of Appeals recently addressed a similar challenge relating to a "citizen's flag pole" outside of a city hall in New Hampshire that allowed citizens to apply to the city for permission to fly their flag. In this case, a group wanted to fly a flag that read "Save Women's Sports" on the citizen's flag pole. The city initially allowed the flag, but then revoked its permission after receiving complaints that the flag was transphobic.

The group sued, claiming that the city's revocation of its permission violated its First Amendment free speech rights. The group argued that the city had never denied citizen flag requests prior to revoking their permission, and that the action of the city was content-based viewpoint discrimination in violation of their free speech rights. The city defended its decision by arguing that the flag pole constituted government speech, so the city could control the message on the flag pole.

The district court found the speech to be government speech but on appeal, the First Circuit Court of Appeals held that the citizen's flag pole program was not government speech based on the U.S. Supreme Court's Shurtleff v. City of Boston decision, and that the city's revocation of the flag permit was viewpoint discrimination in violation of the First Amendment. Scaer v. City of Nashua

Illinois General Assembly Introduces Bills Amending FOIA

The Illinois General Assembly was in session last week, which brings with it newly introduced legislation. Many of these bills are “shell bills” that will be amended with substantive language later in session, but a number of these introduced bills propose changes to the Illinois Freedom of Information Act (FOIA) that would be relevant to local governments if they ultimately pass.

A few of those bills (none of which have been voted on yet) are summarized below:

HB 4395: If approved, this would amend various provisions of FOIA, including Section 2(a) of FOIA to add the “judicial branch and components to the judicial branch” to the definition of “public body” and Section 7 to add a new FOIA exemption for all records pertaining to the preparation of “judicial opinions and orders." Section 9.5(a) would also be amended to state that if the judicial branch and components deny a FOIA request, the requester cannot request review from the Public Access Counselor of the Illinois Attorney General (PAC).

HB 4408: If approved, this would amend Section 7 of FOIA to add a new exemption for records created for administrative, correctional, or law enforcement purposes that include identifying or contact information of a minor who is a victim of secual abuse, sexual assault, or sexual violence.

HB 4409: If approved, this would amend the time for response to a FOIA request submitted to a law enforcement or correctional agency to 15 business days (rather than the current 5 business days). It would also allow an extension of 15 business days for requested records that require the agency to blur body camera footage or make other redactions because the records are partially exempt from disclosure.

HB 4444: If approved, this would allow a public body to charge the actual cost for each hour spent by government personnel searching for a requested record or examining the record for redactions (current cost recovery is capped at $10). The bill would also remove the provision restricting the cost recovery provision to commercial requests only.

HB 4445: If approved, this would add a new Section 10.5 to impose certain notice requirements on both the public body and the requester for requests for body worn camera recordings that are reasonably likely to be used for commercial purposes. These notice requirements would require notice to identifiable subjects in the recording prior to release of the records.

At this time, it is not clear how many of these bills (if any) will move forward but if they do, we will keep you posted.

Post Authored by Natalie Cheung, Luigi Laudando & Julie Tappendorf, Ancel Glink

Supreme Court Finds Candidate Has Standing to Challenge Illinois Vote Counting Law

In another U.S. Supreme Court decision this week, the Court reversed the dismissal of a case filed by three candidates for political office that challenged the State of Illinois' procedure for counting mail-in ballots received after election day. Bost v. Illinois State Board of Elections. The district court and Seventh Circuit Court of Appeals had dismissed the case, finding that the candidates did not have standing to challenge the state law.

Illinois law requires election officials to count mail-in ballots that are postmarked or certified no later than election day and received within 2 weeks of election day. Three candidates for various offices sued the Illinois State Board of Elections claiming that the statute violates federal law, specifically that it conflicts with statutes that set election day as the Tuesday following the first Monday in November. Both the district court and the Seventh Circuit Court of Appeals dismissed the lawsuits based on lack of standing.

On appeal, the Supreme Court determined that at least one of the candidates who had filed a lawsuit challenging the statute had a "personal stake" in the rules that govern the counting of votes in his election to satisfy the requirement for standing. The Court rejected the dissenting justices' argument that the candidates should have to show actual harm (not potential harm) to have standing to sue.

Note that this decision does not address the substance of the claims made by the candidates against the Illinois law, but simply holds that the candidates have standing to have those claims heard in court.

Supreme Court Finds No Fourth Amendment Violation in Warrantless Entry to Home

The U.S. Supreme Court issued an opinion today in Case v. Montana, rejecting an argument that police officers must have "probable cause" to enter a home without a warrant when they encounter an emergency situation. The Court held that the proper test for the emergency exception to the warrant requirement is whether the officer was acting on an objective, reasonable belief that someone inside the home was seriously injured, imminently threatened with an injury, or needed emergency assistance, rather than the "probable cause" standard that applies in criminal cases.

In this case, petitioner's ex-girlfield called police to report that petitioner had been drinking and was threatening suicide. Police officers were dispatched to do a welfare check and when they arrived, determined that the situation was serious and decided to enter the home to render emergency aid. An officer encountered the petitioner holding a black object that the officer thought was a gun, and the officer fired his own rifle. The petitioner was ultimately charged with assaulting a police officer after a handgun was found next to where petitioner stood. Petitioner filed a motion to suppress the evidence at trial, arguing that police had violated his Fourth Amendment rights by entering his home without a warrant. The trial court denied the motion, finding that officers were responding to an emergency (an exception to the warrant requirement).

The case was appealed and made its way to the U.S. Supreme Court, which upheld the trial court's ruling. The Court rejected petitioner's argument that the police officers had to show "probable cause" in order to exercise a warrantless search. Instead, officers must show that they had an "objectively reasonable basis for believing" that their intervention was necessary to prevent serious harm. Here, the officers demonstrated that they were aware of petitioner's mental health and alcohol abuse problems and that he had previously talked about committing suicide. They had statements from his ex-girlfriend that he had threatened to kill himself, and when they went to the home, he refused to respond to their knocking on his door. The Court found that it was objectively reasonable for the officers to believe petitioner needed emergency aid, so there was no Fourth Amendment violation of his rights in the warrantless entry.

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