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Friday, January 27, 2012

Village Officials Must Accept Personal Delivery of FOIA Requests

Yesterday, the Illinois Attorney General issued a binding opinion finding a municipality in violation of the Freedom of Information Act because a village president refused to accept personal delivery of a FOIA request.  The Village had recently adopted a policy requiring all FOIA requests to be made by mail only.  Notwithstanding the village policy, the requester hand-delivered a FOIA request to the village president at a board meeting.  The village president denied the request, citing the new village policy, and the requester filed a complaint with the AG. 

According to the opinion, the requester had frequently hand-delivered FOIA requests to individual board members because the village did not have office hours and mail was not regularly picked up.  The requester admitted that he had, on occasion, hand-delivered FOIA requests to board members on private property and on public streets. 

The AG looked to Section 3(c) of the Act that provides that FOIA requests “may be submitted to a public body via personal delivery, mail, telefax, or other means available to the public body.”  Based on this language, the village could not adopt a policy refusing to accept hand-delivered FOIA requests.  The AG did acknowledge that the opinion did not mean that personal delivery at any time or place is acceptable.  Specifically, the opinion did not mean a “village officer” would be obligated to accept delivery of a FOIA request during a chance encounter on the sidewalk, or at his or her private residence or place of business. 

Nevertheless, based on this opinion and other recent opinions, the AG continues to interpret “public body” to include individual members of a public body.  The plain language of the statute, however, defines “public body” as the corporate bodies themselves and members of those bodies are not included within the scope of the definition.  See Section 2(a) of FOIA (reprinted below).  Moreover, it is not clear how far the AG’s interpretation would extend beyond members of the corporate authorities (i.e., president and trustees in this case) – in other words, would the AG’s definition of “public body” also include other village officers or even employees?  At least with respect to whether text messages of public officials and employees on private devices are subject to FOIA, the answer is yes.  Whether any public official or employee (public works employee, police officer, or other public employee or official) must accept personal delivery of a FOIA request is not so clear.

 Sec. 2. Definitions. As used in this Act:
    (a) "Public body" means all legislative, executive, administrative, or advisory bodies of the State, state universities and colleges, counties, townships, cities, villages, incorporated towns, school districts and all other municipal corporations, boards, bureaus, committees, or commissions of this State, any subsidiary bodies of any of the foregoing including but not limited to committees and subcommittees thereof, and a School Finance Authority created under Article 1E of the School Code. "Public body" does not include a child death review team or the Illinois Child Death Review Teams Executive Council established under the Child Death Review Team Act.

Post Authored by Julie Tappendorf, Ancel Glink.

1 comment:

  1. They have to come up with ideal regulations for the village. This is to prevent abuse of authority.

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