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Tuesday, July 5, 2016

OMA Amendment Addresses Access to Closed Session Minutes and Recordings

Sliding under the radar this term was Illinois HB 4630, which passed both houses, and was approved by the Governor last week. This bill amends the Open Meetings Act (OMA) to address access by elected officials to verbatim recordings of closed session meetings. 

Section 2.06 of the OMA requires all public bodies to record their closed session meetings by "verbatim recordings." That statute provides that the verbatim recordings are not open for public inspection unless the public body has made a determination that the recording no longer requires confidentiality.  The OMA did not expressly address access to these recordings by public officials until now (although many public bodies probably took the position that elected officials are not the "public.")

HB 4630 adds language that expressly provides access to verbatim recordings (and closed session meeting minutes) to elected officials of the public body (and those appointed to fill a vacancy in an elected position), subject to the following restrictions:
  1. Access to the closed session minutes or verbatim recordings is limited to the main office or official storage location.
  2. Access must be in the presence of a records secretary, administrative official of the public body, or any elected official of the public body.
  3. No verbatim recording shall be recorded or removed from the main office or official storage location except by vote of the public body or by court  order.
  4. The Public Access Counselor's access is not restricted by the new law.

As noted above, the restrictions on verbatim recordings also apply to closed session meeting minutes of the public body. 

The purpose of the law is a good one - ensuring that closed session minutes and recordings are kept confidential and allowing members of the public body to access these records in a secure manner. However, there are a few practical problems with the legislation that the General Assembly may not have thought of. 

First, the law appears to prohibit the prior distribution of closed session meeting minutes to members of the public body in meeting packets, even where those packets are marked confidential and kept separate from publicly distributed meeting materials. Even more concerning, the law may prevent the public body from conducting the required semi-annual review of closed session minutes, which must be done in a closed session since the law restricts access to these records by elected officials to the main office and official storage location - the law doesn't mention the public body's meeting space (unless it happened to be located in the "main office space.")

Second, the law could be interpreted to prevent a public body from distributing closed session recordings and minutes to the public body's attorney or administrative official (i.e., City Manager) to review and use in connection with a response to a PAC investigation or court action to enforce the OMA. Although the public body could vote to allow access to the minutes or recording; timing could be a problem since the PAC only gives a public body 7 days to respond to a complaint, and a public body may not have a meeting scheduled in that time-frame. 

Perhaps a more reasonable interpretation of this legislation is that the law only addresses access to closed session records by elected officials and that it does not impact access to these records by authorized administrative and legal officers of the public body that is necessary for these officers to perform their duties on behalf of the public body. 

Public bodies may need to modify current practice for allowing access to these records by elected officials in order to comply with this new legislation, which takes effect January 1, 2017.

Post Authored by Julie Tappendorf


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