Board Violated OMA in Restricting Content of Public Comment and more...

Board Violated OMA in Restricting Content of Public Comment

In a recent binding PAC Opinion, the PAC found a public body in violation of the Open Meetings Act (OMA) for restricting the content of public comment. PAC Op. 23-013.

A member of the public submitted a request for review to the PAC claiming that a school board violated the OMA when the board president interrupted her during public comment when she referred to a hiring policy and informed her that she could not discuss personnel issues at a public board meeting.

The PAC concluded the school board violated section 2.06(g) of the OMA by imposing a restriction on public comment that was not authorized by the board's "established and recorded" public comment rules. Although the school board had adopted public comment rules, those rules did not restrict public comment on personnel matters. The board responded that its restriction on discussing personnel issues was authorized by language on the board's annotated board meeting agenda stating that the school board requests that any matters concerning personnel or students be privately communicated to the board. However, the PAC rejected the board's argument, finding that there was no evidence that the board had communicated this restriction to the public.

Although the PAC did not make a formal determination on whether the board could establish this type of restriction on public comment since its opinion was based on the requirement in section 2.06(g) that public comment rules be "established and recorded," the PAC did state that this type of restriction might constitute an impermissible content-based restriction on the speaker’s First Amendment rights. As we have noted on Municipal Minute before, the PAC has weighed in on constitutional issues in the past when deciding requests for review although the First Amendment was not the basis for this opinion.

Post Authored by Eugene Bolotnikov & Julie Tappendorf, Ancel Glink

Public Body Did Not Act in Bad Faith in FOIA Response

An Illinois Appellate Court determined that a public body did not act in bad faith when it denied a request for postmortem photographs even though the trial court ordered the public body to release the records. Thomas v. County of Cook, 2023 IL App (1st) 211656-U.

While Thomas was serving 75 years in prison for a murder conviction, he filed a FOIA request with the County requesting all postmortem photographs, autopsy photographs, and x-rays of the decedent. The County withheld 35 of the 38 requested records, explaining that the release would constitute an "unwarranted invasion of personal privacy" and the records were exempt from release under section 7(1)(c) of FOIA. The County cited to binding PAC Opinion 10-003 in support of its denial.

Thomas sued the County, claiming its refusal to release the photographs was willful and in bad faith and violated FOIA. The trial court ruled in favor of Thomas, in part, and ordered the County to release the 38 autopsy photographs; however, the court rejected Thomas' argument that the County's denial was in bad faith. Thomas appealed the court's ruling that the County did not willfully and intentionally fail to comply with FOIA or otherwise act in bad faith.

The appellate court agreed with the trial court that the County's denial of the request was not in bad faith because the County had relied on a binding PAC opinion that had determined that family members of the decedents have a privacy interest in keeping postmortem photographs from being released to the public.

The appellate court did not address the trial court's substantive ruling that the photographs requested by Thomas were releasable nor did the appellate court distinguish the PAC Opinion that protected those records from release, likely because the County did not appear to appeal the substantive ruling. It is possible the trial and appellate courts may have weighed the interest of Thomas (who was serving time for the murder of the decedent) in receiving the photographs in this case as more significant than the interest of the reporter in the PAC opinion cited by the County.

When relying on the "invasion of personal privacy" exemption of 7(1)(c) of FOIA, public bodies should make sure they balance the interests of the requester in the release of requested records against the privacy interests at stake.

Quorum Forum Podcast Ep. 75 - APA-CMS Bar Exam 2023

Ancel Glink's Quorum Forum Podcast just released a new episode: Quorum Forum Ep. 75 - APA-CMS Bar Exam 2023. In this episode (recorded live at the Haymarket Pub and Brewery), Ancel Glink attorneys discuss the most important planning law cases of the year in a simulated law school experience format targeted to planners and land use professionals.

PAC Binding Opinions and Indexes of OMA/FOIA Opinions

The last two binding opinions issued by the Public Access Counselor (PAC Op. 23-011 and 23-012) didn't provide public bodies with any guidance on compliance with FOIA or OMA, except to reiterate that public bodies are required to respond to FOIA requests, so we didn't see a reason to summarize those opinions.

However, we did want to remind our readers of two great resources for FOIA and OMA guidance that public bodies may find helpful. The PAC has posted on its website an index of binding OMA opinions and FOIA opinions. These indexes categorize the various binding opinions over the past 13 years and it looks like they have been regularly updated.

So, if you are looking for guidance on public comment at meetings, or topics that can be discussed in closed session, or FOIA exemptions or fees, or any other topic addressed by the PAC in one of its binding opinions, these indexes could be a great starting point.

PAC Finds OMA Violation Where Committee Members Discussed Committee Business Outside Proper Meeting

In another advisory PAC opinion shared by a reader, the PAC reviewed a complaint that two committees of a public body violated the OMA where committee members discussed public business outside of a properly noticed meeting. 2023 PAC 75602.

The PAC found one committee in violation of the OMA while finding the other committee did not violate the OMA. Although the topic of discussion between the respective committee members was the same, the reason for the distinction was the nature of the respective committee's jurisdiction. In one case, the PAC determined that the committee's jurisdiction included the topics discussed by the members so a majority of a quorum of that committee discussing that topic outside of a properly noticed meeting violated the OMA. With respect to the other committee, however, the PAC determined that this committee's jurisdiction had nothing to do with the topic discussed by the committee members, so their discussion outside of a meeting did not trigger the OMA.

This is a good reminder to members of public bodies to be careful not to discuss with a majority of a quorum of their public body any topics related to the business of the public body of which they are a member outside of a properly noticed meeting.

Municipal Minute