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Blog comments do not reflect the views or opinions of the Author or Ancel Glink. Some of the content may be considered attorney advertising material under the applicable rules of certain states. Prior results do not guarantee a similar outcome. Please read our full disclaimer

Thursday, October 22, 2020

Public Body Did Not Waive Ability to Redact Records in FOIA Case


In a recent court ruling, the First District Appellate Court concluded that the Schaumburg Police Department did not waive its right to redact accident reports in response to a FOIA request even though the Department had previously provided unredacted copies of the same reports to a third-party vendor in order to comply with the Department's mandatory reporting obligations under the Vehicle Code. Mancini Law Group, P.C. v. Schaumburg Police Dep't,

Mancini Law Group, P.C. had sent a FOIA request to the Department seeking certain 2017 motor vehicle traffic accident reports. After the Village responded to the request by producing redacted accident reports, Mancini sued the Department, claiming the Department improperly redacted non-exempt information under FOIA, and alternatively, even if the Department’s redactions were proper, the Department waived its ability to assert FOIA exemptions because the Department previously provided unredacted accident reports to LexisNexis. The circuit court held that the Department’s redactions were proper and that the Department did not waive its right to redact the reports in response to Mancini’s FOIA request because the Department only provided unredacted accident reports under a contract with LexisNexis, an approved third-party vendor for the State of Illinois, as part of the Department’s mandatory reporting requirements under section 408 of the Illinois Vehicle Code. That statute requires the Department to file motor vehicle accident reports with the Secretary of State and the Department of Transportation. Mancini then appealed to the First District Appellate Court, which affirmed the circuit court’s judgement.

On appeal, Mancini argued that the Department’s voluntary disclosure of unredacted accident reports in one situation precluded the Department from withholding the same reports in response to Mancini’s FOIA request. Mancini relied on an Illinois Supreme Court's ruling that endorsed federal cases holding that “selective disclosure” by public bodies is offensive to the purposes of FOIA and intolerable as a matter of policy because “preferential treatment of persons or interest groups fosters precisely the distrust of government the FOIA was intended to obviate.” However, since LexisNexis was acting as the Department’s agent to help the Department fulfill its statutory reporting requirements, the appellate court concluded that the Department’s efforts to comply with a statutory reporting requirement were not comparable to the  “selective disclosure,” or “preferred treatment” condemned by the Illinois Supreme Court.

The appellate court also rejected Mancini claim that LexisNexis sells the Department’s unredacted reports for a fee to the public without restrictions, observing that only people providing specific information can purchase unredacted accident reports—either by being involved in the accident, representing someone involved in the accident, or being an insurance company identified as insuring someone involved in the accident.

Post Authored by Eugene Bolotnikov, Ancel Glink

Wednesday, October 21, 2020

State Imposes New Restrictions on Illinois Regions


Regions 7 and 8 (Will, Kankakee, Kane, and DuPage Counties)

This afternoon, the Governor announced new mitigation efforts for Regions 7 and 8, which take effect on Friday, October 23, 2020. Region 7 includes Will and Kankakee Counties and Region 8 includes Kane and DuPage Counties. According to the Governor's press release, both regions have shown a positivity rate higher than 8%. 

The mitigation measures are the same for both Regions, and include the following:

Bars:  No indoor service at bars, and outside service must end at 11:00 p.m. Restrictions also include social distancing, table distancing, no dancing or standing indoors, and no seating of multiple parties at one table.

Restaurants:  No indoor dining at restaurants, and outdoor dining must end at 11:00 p.m. Other restrictions include table distancing, no standing or congregating indoors while waiting for a table, reservations required, and no seating of multiple parties at one table.

Meetings, Social Events, and Gatherings: Limited to lesser of 25 guests or 25% of the room capacity, no party buses, and casinos and gaming must end at 11:00 p.m. and limited to 25% capacity. 

Region 5 (Southern Illinois)

Earlier this week, new mitigation measures were announced for Region 5 (Southern Illinois) that place the same restrictions discussed above for Regions 7 and 8, and take effect on Thursday, October 22, 2020. 

Region 1 (Northwestern Illinois, including Rockford area)

At the beginning of October, similar mitigation measures were imposed on Region 1, which remain in effect. 

Regions 4 and 7 (Metro East and South Suburban)

In August, we reported on mitigation measures imposed on Regions 4 and 7. Those mitigation measures were lifted in September but yesterday's announcement means that this is the second time Region 7 is being restricted. 

Monday, October 19, 2020

Court Issues Ruling in Lawsuit Challenging Election Day Closures


Last week, an Illinois circuit court issued a ruling in the case brought by the Illinois Municipal League (IML) against the State of Illinois to challenge the recent statute making November 3, 2020 (Election Day) a state holiday and requiring local government offices to close. The IML had argued that it was an unfunded mandate to municipalities, and the circuit court agreed in its ruling last week.

We have been asked whether the ruling extends beyond the two municipalities that were named as plaintiffs in the case (Southern View and Bolingbrook) to apply to other local governments. The ruling states that the statutory amendment that requires government offices to close on Election Day (i.e., Section 2B-10) "does not apply to local governments such as municipalities - including those municipalities that are members of IML and specifically, the Villages of Southern View and Bolingbrook." The IML has advised that the ruling provides each of its member municipalities the independent discretion to determine if their offices should or should not be closed on Election Day. The ruling itself seems broader in application, as it refers to "local governments" and not just municipalities. An appellate court ruling (or better yet, a statutory fix) would certainly help to provide some clarity, but given the short time period until Election Day, that may be unlikely. Local governments may want to reach out to their attorneys if they have questions about the ruling and how it applies to them.

You can read the decision on the IML's website here.  You can also read the IML's summary of the lawsuit and ruling here.

Friday, October 9, 2020

Qurum Forum Podcast 45: Housing and Homelessness


Planners and land use professionals will be interested in tuning into the most recent episode of Quorum Forum, Episode 45: Housing and Homelessness.  In this episode, partners David Silverman and Dan Bolin discuss the latest on accessory dwelling units, recent constitutional challenges to local ordinances affecting homeless populations, and answer questions about the latest legal issues affecting governments. 

You can watch the livestream recording here or listen and subscribe to the Quorum Forum Podcast here.  


Wednesday, October 7, 2020

IDPH COVID Guidance for Election Polling Places


Awhile back, the Illinois Department of Health (IDPH) issued COVID-19 guidance for election polling places. You can read the guidance on the IDPH's website here. A summary of some of the key provisions are below:

1. Each local election authority (usually the county or election commission) must adopt a written COVID-19 prevention plan for each polling place in its jurisdiction that includes at a minimum the following:

  • Contact person for implementation of plan
  • Safety instructions and training on cleaning and disinfection
  • Physical distancing protocols
  • Worker monitoring plan
  • Policies for ensuring compliance with social distancing, mask wearing, and disinfection of all affected surfaces
2. Placement of signage at entrances regarding face coverings

3. Distancing of election officials and pooling booths at least 6 feet apart

4. Visual cues for social distancing of voters

5. Designated break areas that allows physical distancing

6. Consider outdoor enclosures for waiting voters or encourage voters to wait in cars

7. Consider curbside voting, if practical

8. Ensure ventilation systems are operating properly

9. Replace shared objects (pens, cards, ballot covers) with single-use objects, where possible

10. Provide face coverings for voters who arrive without them

11. Voters cannot be screened for COVID-19 at the polling place nor prohibited from voting even if they refuse to wear a face covering

12. Consider plexiglass barriers

13. Routine cleaning and disinfecting of electronics and frequently touched objects and surfaces

14. Provide hand sanitizer to voters

15. Poll workers must wear a face covering at all times and practice good hygiene (hand washing; hand sanitizer)


Tuesday, October 6, 2020

Upcoming APA Webinar on Drones


APA Planning and Law Division in partnership with APA Learn is presenting a webinar on October 22nd on Drones. Information about the webinar and registration is below:

Sky's the Limit: Drone Regulatory Implications

Thursday, October 22, 2020 

12:00 p.m. - 1:30 p.m. CT

CM and CLE credit

Aerial drones (sometimes described as “UAS” or “UAV”), have a host of planning applications across urban, regional, rural, and agricultural geographies. From a general aerial surveying perspective, these applications frequently include site analysis and visualization, GIS mapping and modeling, and photosimulations. 

Sub-disciplines within the planning field such as transportation, environmental, and disaster planning already utilize small drones’ aerial sensors for real-time data collection, infrastructure inspection, project management, and project development. These technologies can facilitate new ways of practicing community engagement. Given the broad applications of this technology across multiple planning disciplines, there is a general need for planners to enhance their awareness of relevant federal regulations, administrative guidance published by the Federal Aviation Administration, and court cases that collectively define the legal operation of small drones. Essentially, if you plan to use this technology in your planning practice, you must know the rules. 

While acknowledging there are still significant gaps in the legal landscape for small drone operation, this program will discuss useful precedents to help you develop a use-case that is most likely to protect your planning practice and elected officials.. Even though state and federal legislatures continue to debate the regulatory environment to operate small drones, there is some present-day certainty regarding what state and local government can — and cannot — regulate. 

Our expert panelists will explain the ways in which your city or state planning department could use small drones to enhance your planning efforts, prepare you to navigate the risks in the grey area, and offer insight on how to avoid the pitfalls.  


Information about speakers, cost, and registration can be found here.


Monday, October 5, 2020

IDPH Releases Halloween Guidance


We reported previously about the CDC's guidance on fall holidays, including Halloween. The Illinois Department of Public Health (IDPH) has now released its own guidelines for fall activities, which supplement the recently-updated DCEO guidance on other seasonal staples, such as pumpkin patches, hayrides, and haunted houses. 

Trick-or-Treating

Trick-or-treating is allowed, provided that groups are limited to household members, social distancing is maintained from other trick-or-treaters and people passing out candy, and that face coverings are worn in addition to any costume masks. The IDPH advises sticking to outdoor areas rather than multi-family buildings, frequent use of hand-sanitizer, and handwashing prior to consuming any candy. The IDPH also suggests some safer alternatives to traditional trick-or-treating. Instead of passing out candy at the door, the IDPH recommends putting out individually wrapped treats on a table more than six feet from the front door so that trick-or-treaters may help themselves. This method is also recommended in other settings, such larger-scale organized events involving tables set up with carefully-spaced candy in parking lots to avoid door-to-door travel.

Haunted Houses

Haunted houses are not allowed. The IDPH encourages open-air, one-way haunted forests or haunted walks where social distancing of 6 feet or greater and appropriate masking is enforced as an alternatives. Really scary haunted walks require increased social distancing due to the potential for screaming.

Pumpkin Patches/Apple Orchards

Attendance at outdoor pumpkin patches and apple orchards is limited to 25% capacity, with advance-purchase tickets advised. Indoor areas or rides of the sort that are sometimes featured at such locations must remain closed. Face coverings and social distancing are mandatory.

Hayrides

Hayrides are permitted up to 50% capacity with social distancing and face coverings required. The DCEO and IDPH both advise limiting hayride participants to members of the same household.

Adult Halloween Parties

The IDPH warns against large-scale parties and reiterates the 50-person limit for gatherings. While peole can visit bars (subject to regional or local restrictions), the IDPH provides a list of reasons why partaking in indoor costume parties is a bad idea and suggests avoiding such events, or minimizing the amount of time spent, together with the usual reminders to adhere to social distancing and face covering requirements.


Friday, October 2, 2020

Quorum Forum Podcast 44: APA-IL Planning Law Symposium


Ancel Glink's Quorum Forum Podcast just released its latest episode, Episode 44: APA-IL Planning Law Symposium.

The Illinois Chapter of the American Planning Association just held its virtual 2020 State Conference featuring the APA-IL Planning Law Symposium presented by Ancel Glink's Quorum Forum podcast. Trevor Dick from the City of Aurora joined Ancel Glink partners ShawnTe Raines, David Silverman, and Dan Bolin to discuss important legal issues affecting planners, including pandemic-time public meetings, economic recovery tools, defending religious land use cases, and more. 

You can listen to the APA-IL Planning Law Symposium on the latest episode of Ancel Glink's Quorum Forum podcast here.

Tuesday, September 29, 2020

PAC Says List of Blocked Social Media Users is Subject to FOIA


In a recent advisory opinion, the PAC office of the Illinois Attorney General found a public body in violation of FOIA because it failed to turn over records pertaining to blocked Twitter and Facebook accounts and users. The requester had filed a FOIA requesting a list of all persons or users who had been blocked on the village's social media accounts. The village denied the request saying it had no responsive records. The requester claims he then forwarded to the village a screenshot of his own account showing he had been blocked from the village's account. Shortly thereafter, he filed a request for review with the PAC.

The village argued that the requested records were not public records because they are maintained by the third party social media providers. The village also argued that compiling those records would require the creation of new records which is not required by FOIA. The PAC disagreed, finding that (1) the records are public records and (2) the village could download the information through a link which did not constitute the creation of records, in the PAC's opinion. 2020 PAC 63566

In what seems to be "dicta," the PAC also appeared to suggest that the village violated FOIA by not preserving lists of any accounts it had blocked. As we all know, FOIA is not a records retention statute - records retention and preservation obligations are contained in the Local Records Act. The Local Records Act is not within the PAC's jurisdiction, which is limited to FOIA and Open Meetings Act. It does not appear from the opinion that the village actually destroyed records which could be relevant under FOIA. Instead, the PAC seemed focused on the village's records retention obligations, which is a topic more properly addressed by the State Archivist or Local Records Commission.

The key takeaway is that social media records pertaining to blocked users or accounts will be considered public records by the PAC subject to release under FOIA. 

Monday, September 28, 2020

PAC Finds City Council Violated OMA in Call Updates on Pandemic Actions


As has been widely reported by local news, the Public Access Counselor (PAC) office of the Attorney General recently issued an opinion finding the City of Chicago City Council in violation of the Open Meetings Act for allegedly conducting phone meetings with a majority of a quorum of the Council outside of a noticed meeting. 2020 PAC 62918

ProPublica Illinois filed a request for review with the PAC claiming that the City Council had held a number of meetings by phone without complying with the OMA. The City responded that the calls were informal briefings about pandemic-related issues and did not constitute the discussion of public business to trigger the OMA. The City argued that the calls consisted of updates on public safety matters that were informational in nature, and did not include any discussion or deliberation of public business.

The PAC disagreed with the City, finding that all but one of the phone calls constituted a meeting that required compliance with the OMA (one of the challenged meetings did not involve a majority of a quorum of the Council so did not trigger a meeting). The PAC stated that public business under the OMA is not restricted to only those topics that public bodies take action on during a gathering but also includes information exchanged relating to matters that public bodies could potentially act on in the future, regardless of whether action is ultimately taken. As a result, the PAC found the City Council in violation of the OMA and ordered the City to make available for public inspection copies of summaries of these calls.






Thursday, September 24, 2020

Class Action Challenging Chicago's Water Main Replacement Program Dismissed


The Illinois Supreme Court recently held that the trial court properly dismissed a class action lawsuit against the City of Chicago that had claimed that the City's water main replacement program increased the risk of harm to the plaintiffs of lead poisoning. Specifically, the Supreme Court determined that the plaintiffs did not establish that they suffered any bodily harm by any alleged negligence by the City, and that plaintiffs could not recover solely on their claim that the City's project increased their risk of harm. The Court also dismissed the plaintiffs inverse condemnation claims finding that the plaintiffs did not allege that the service lines were rendered unusable or that they were unfit for human use as a result of the replacement program, meaning they failed to show any measurable, pecuniary harm caused by the repair work.  Berry v. City of Chicago.

Tuesday, September 22, 2020

Halloween Guidance Posted by CDC


Illinoisans have not yet received official guidance from the State of Illinois on Halloween activities and events. However, yesterday the CDC posted guidance about Halloween activities and other fall holidays on its website that may be of interest to readers.

The CDC has assigned various levels of risk to Halloween-related activities. For those wondering how traditional trick-or-treating will be categorized (or its close cousin, "trunk-or-treat"), the CDC has assigned these activities to its "high risk" category. Hayrides, indoor costume parties, and indoor haunted houses are similarly assigned to the high risk category of activities.

The CDC notes that traditional costume "masks" are not a substitute for face coverings used to protect against the virus but also warns against wearing a cloth face covering under a traditional costume mask if that makes it harder for the individual to breathe.

You can find the entire guidance here, but we have reprinted a summary of common Halloween activities and where they fall within the CDC's assigned categories of risk:

Lower risk activities

  • Carving or decorating pumpkins with members of your household and displaying them
  • Carving or decorating pumpkins outside, at a safe distance, with neighbors or friends
  • Decorating your house, apartment, or living space
  • Doing a Halloween scavenger hunt where children are given lists of Halloween-themed things to look for while they walk outdoors from house to house admiring Halloween decorations at a distance
  • Having a virtual Halloween costume contest
  • Having a Halloween movie night with people you live with
  • Having a scavenger hunt-style trick-or-treat search with your household members in or around your home rather than going house to house

Moderate risk activities

  • Participating in one-way trick-or-treating where individually wrapped goodie bags are lined up for families to grab and go while continuing to social distance (such as at the end of a driveway or at the edge of a yard)
  • Having a small group, outdoor, open-air costume parade where people are distanced more than 6 feet apart
  • Attending a costume party held outdoors where protective masks are used and people can remain more than 6 feet apart
  • Going to an open-air, one-way, walk-through haunted forest where appropriate mask use is enforced, and people can remain more than 6 feet apart
  • Visiting pumpkin patches or orchards where people use hand sanitizer before touching pumpkins or picking apples, wearing masks is encouraged or enforced, and people are able to maintain social distancing
  • Having an outdoor Halloween movie night with local family friends with people spaced at least 6 feet apart.

Higher risk activities

  • Participating in traditional trick-or-treating where treats are handed to children who go door to door
  • Having trunk-or-treat where treats are handed out from trunks of cars lined up in large parking lots
  • Attending crowded costume parties held indoors
  • Going to an indoor haunted house where people may be crowded together and screaming
  • Going on hayrides or tractor rides with people who are not in your household
  • Using alcohol or drugs, which can cloud judgement and increase risky behaviors
  • Traveling to a rural fall festival that is not in your community if you live in an area with community spread of COVID-19