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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

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

Thursday, September 17, 2020

EEOC Releases Updated FAQ For Employers on COVID-19


Ancel Glink's employment law blog, The Workplace Report with Ancel Glink, recently reported on updated EEOC guidance to employers regarding COVID-19. We've reprinted the post below but we also encourage you to visit and subscribe to The Workplace Report here.

EEOC UPDATES ITS CORONAVIRUS GUIDANCE

Throughout the pandemic, the EEOC has maintained a list of frequently asked questions for employers regarding Coronavirus-related issues. The FAQs are informative, and we suggest that employers take a look at them, which they can do by clicking here.

Last week the EEOC updated some of its FAQs, and we have highlighted a few of those updates below:

Employers Can Require Employees to Take a COVID-19 Test

Employers can require any employee to take a COVID-19 test before entering the workplace. The Americans with Disabilities Act (ADA) requires any mandatory medical test to be “job-related and consistent with business necessity” and in the EEOC’s opinion, COVID-19 tests fall into this category because the virus poses a direct threat to the health of others. If an employee refuses to get tested he or she can be barred from entering the workplace. Employers cannot require teleworking employees to take a COVID test absent special circumstances.

Employers can also ask employees entering the workplace whether they are suffering from symptoms consistent with COVID. They can perform temperature checks too. While employers can single out an employee for testing or questioning, there should be a good reason for doing so (i.e. the employee looks sick, has a family member with COVID, etc.). With that said, employers should not specifically ask an employee whether a family member has COVID, as that would be a violation of the Genetic Information Nondiscrimination Act. They can get around this though by asking whether an employee has been in contact with anyone who has COVID or symptoms consistent with the disease.

Employers Must Keep COVID-19 Information Confidential

The ADA requires employers to keep all medical information about employees confidential and in a separate file, even if that information is not about a disability. If an employee has COVID symptoms, that information must be kept confidential. With that said, this information can be reported to the appropriate people in the company so that they can take measures to keep the workplace safe.

Also, if an employee knows that a co-worker is experiencing COVID symptoms, that employee can report this information to a supervisor.

Employers Can Ask Employees to Identify Accommodations They Need Before Entering the Workplace

Employers can, and probably should ask employees for reasonable accommodations they need before coming back to work. Remember, a reasonable accommodation does not need to be the best accommodation or the accommodation the employee wants—it only needs to allow the employee to be able to perform his or her job.

Also, telework does not have to be granted as a reasonable accommodation. If the employee needs to come into the workplace, and safety precautions can be taken to allow the employee to perform his or her job in the workplace, the employer can require the employee to come in.

Don’t Lay Off or Furlough an Employee Just Because He or She Contracts COVID

Doing this is a violation of the ADA. It also is a violation of the Emergency Paid Sick Leave Act (EPSLA), which requires employers to provide employees who contract COVID with ten days of paid sick leave.

Original post authored by Matt DiCianni, Ancel Glink

Wednesday, September 16, 2020

Court Addresses Challenge to a Municipality's DUI Impound Fee


We've previously reported on a few cases involving challenges to municipal impound and towing charges. Recently, an Illinois appellate court considered a challenge to a City of O'Fallon ordinance that imposes a $500 charge on a driver whose vehicle is impounded for a DUI offense. Saladrigas v. City of O'Fallon

The Village ordinance imposes the $500 charge in addition to other fees imposed for towing and storage of the vehicle and penalties imposed for the DUI offense. A driver who was assessed this $500 charge challenged the ordinance, claiming it was an unconstitutional administrative fee as it was not reasonably related to the recovery of the Village's administrative costs. The Village argued it was a fine, not a fee, so there was no requirement that the Village establish that the amount was reasonably related to its administrative costs. The circuit court agreed with the Village, but on appeal, the Appellate Court rejected the Village's argument and determined that the $500 charge was an administrative fee, and not a fine. Important to the appellate court was language in the Village's ordinance that identified the charge as a fee, not a fine, and the purpose of the charge was to recoup costs incurred by the Village in processing DUI arrests.

It's important to note that the Appellate Court did not issue any ruling on whether the "fee" was constitutional or not, instead remanding it back to the circuit court to make a determination as to whether the amount of the fee was rationally related to the City's legitimate government interests in recouping costs.  Interestingly, although the court acknowledged that the City was a home rule municipality, it did not seem to take that into consideration in its ruling. It will be interesting to see how this case moves forward in the circuit court, particularly since many municipalities throughout the state impose similar charges on DUI impounds.

Tuesday, September 15, 2020

Court Finds Sanitary District Conditions on Sewer Connection Constitutional


An Illinois Appellate Court recently issued a ruling in favor of a Sanitary District, the City of Champaign, and other government bodies in a challenge to invalidate an intergovernmental agreement and other ordinances that affected the development of the plaintiff's property. I-57 & Curtis, LLC v. Urbana & Champaign Sanitary District.

The challenged IGA and ordinances allowed the plaintiff to annex its property to the Sanitary District (and connect to the Sanitary District's sewer system) only if the plaintiff entered into an annexation agreement with the City of Champaign to annex the property to the City. The plaintiff objected to that condition, claiming it did not want to annex to the City because it would subject the property to the City's zoning jurisdiction. So, the plaintiff sued the various government defendants to invalidate the IGA and ordinances, claiming that the plaintiff was deprived of its valuable property interest without due process of law. The lawsuit also challenged the authority of the defendants to enter into the IGA. Finally, plaintiff claimed that the "coerced annexation" violated plaintiff's constitutional right to freely and voluntarily choose whether and how to participate in the electoral process of municipal annexation. 

The circuit court ruled in favor of the defendants. On appeal, the Appellate Court upheld the ruling in favor of defendants, rejecting plaintiff's challenge to the IGA and ordinances. First, the Appellate Court held that the Sanitary District had the authority to enter into the IGA and impose conditions on the connection to the District's sewer system. Second, the Appellate Court rejected plaintiff's argument that the condition imposed by the District requiring annexation circumvented the procedures contained in the annexation statute for forced annexations, finding the condition to be "leverage" to further annexation rather than a forced annexation. The Court also rejected plaintiff's due process argument, finding no entitlement under Illinois law to subdivision approval. In short, the Appellate Court rejected plaintiff's challenge to the constitutionality of the IGA and its conditions on annexation.

Monday, September 14, 2020

Police Chief Fired For Posting Looting Meme on Personal FB Page


It's been awhile since we have reported on social media activities that result in an employee's termination.  An Illinois municipality recently fired its police chief for posting a meme on his personal Facebook page that showed people looting from a store, with the following caption:

Looting....when free housing, free food, and free education just aren't enough

The village issued a press release about the termination:

We hold all of our public officials to the highest standards in their personal and professional lives in Orland Hills. This social media post is in incredibly poor taste. It does not reflect the values of the people of our community, and we will not tolerate such behavior from any of our public officials.

Just another reminder that employees should be mindful of what they post on social media. It is important to consider that "personal" does not necessarily mean "private" when engaging in online activities, and that the First Amendment does not protect all speech.

Friday, September 11, 2020

Court Reject Plaintiffs' Challenge to the Obama Presidential Center Project


Protect Our Parks, Inc. and Maria Valencia filed a lawsuit against the City of Chicago and the Chicago Park District to try stop construction of the Obama Presidential Center in Chicago’s Jackson Park. The plaintiffs claimed that the Obama Presidential Center project does not serve the public interest but rather the private interest of its sponsor, the Barack Obama Foundation. Specifically, they argue that the defendants violated Illinois’ Public Trust Doctrine by transferring control of public parkland to the Obama Foundation for a purely private purpose. They also argue that the defendants acted beyond their legal authority when they entered into a use agreement with the Foundation, violated the Fifth Amendment's "Takings Clause" by taking plaintiffs' property for a private purpose, and violated plaintiff's due process rights. 

The Seventh Circuit recently issued a ruling in this case finding in favor of the defendants on the federal law claims (takings and due process claims), and sending the case back to the district court to dismiss the state law claims (public trust and authority claims). Protect our Parks, et al. v. Chicago Park District, et al.

On the federal law claims, the Seventh Circuit determined that plaintiffs did not have adequate standing to bring those claims. The Court rejected plaintiffs' argument that it had standing based on its status as taxpayers, finding that the plaintiffs failed to show that they would suffer special damage different than what the public at large would suffer. In addition, since the construction of the project is privately funded rather than funded by the City, it wasn't clear how taxpayers would be injured for purposes of finding "standing" to challenge the project. In addition, plaintiffs did not establish any private property interest in Jackson Park for their federal law claims. Finally, the Court rejected plaintiffs' takings and due process claims, finding no merit to their substantive arguments.

In sum, the Seventh Circuit upheld the district court’s summary judgment ruling in favor of the defendants on the plaintiffs' federal claims, but ruled that the district court should have dismissed plaintiffs' state claims for lack of jurisdiction, and remanded the case back to the district court.

Post Authored by Joyce Jezeer & Julie Tappendorf, Ancel Glink


Thursday, September 10, 2020

Quorum Forum Podcast on Emails on Personal Devices Now Available


As we reported last week, Ancel Glink's Quorum Forum Podcast went "live" to discuss a new court decision about emails and texts on government officials' and employees' personal accounts. We also explained what qualified immunity is for local governments in the ongoing national conversation about claims against police. 

If you missed this episode when it went "live," no problem - you can tune into the audio recording on our Quorum Forum Podcast website here. You can also watch it on YouTube or Facebook.

Wednesday, September 9, 2020

7th Circuit Upholds Illinois' Gathering Restrictions


There have been a number of legal challenges to Governor Pritzker's COVID-19 related executive orders, many of which we have reported about on Municipal Minute. Recently, one of those challenges made its way to the 7th Circuit Court of Appeals (a federal appeals court). In Republican Party of Illinois v. Pritzker, the 7th Circuit upheld Governor Pritzker's restrictions on gatherings against a challenge that the gathering restrictions were unconstitutional because they favored the free exercise of religion over political speech.

The Republican Party argued that the Governor's gathering restrictions in various executive orders are illegal because they allow larger groups of people to gather in a church, mosque, or synagogue to worship, but the same number of people are not allowed to gather to discuss the upcoming presidential election. The Party claimed that this distinction is unconstitutional under the U.S. Supreme Court's ruling in Reed v. Gilbert (a case involving a challenge to a municipality's temporary sign regulations). The Court rejected the Party's argument, finding that the issue raised in Reed was focused on an alleged disadvantage to religious institutions and not the lifting of a burden from religious practice. The Court emphasized the special treatment given in the First Amendment to the free exercise of religion, which the Court distinguished from free speech. 

In ruling in favor of the Governor, the Court stressed that its ruling does not mean that religious institutions can do whatever they want. The Court provided specific examples (such as a Labor Day picnic, night at the movies event, or battle of the bands), which would be subject to the 50 person gathering restriction that applies to similar events hosted by non-religious groups. In other words, the special treatment provided to religious institutions under the executive orders should be limited to "free exercise of religion." As a result, the 7th Circuit rejected the Party's argument that the free exercise of religion must be treated the same as political speech with respect to limits on gatherings. The Court held that the free exercise of religion "enjoys express constitutional protection, and the Governor was entitled to carve out some room for religion, even while he declined to do so for other activities." 

The Court also rejected the Party's argument that the Governor is implicitly favoring Black Lives Matter protests by not enforcing the 50 perrson gathering restrictions on these protests. The Court found no evidence of that, but did caution the Governor that the Court would likely take issue with any preference for messaging of one type of event over another.

Tuesday, September 8, 2020

Happy 9th Anniversary to Municipal Minute!


On September 3, 2011, I started Municipal Minute as a way to share new cases, recently enacted legislation, and other legal updates that might be of interest to local government officials and employees. Nine years (and 1799 blog posts) later, we are still reporting on new developments in the area of local government law. We have shared hundreds of PAC opinions on FOIA and OMA issues, numerous case summaries and legislative updates, and provided our readers with more COVID-related developments than we can count. It has been my pleasure to share my nerd-love for local government law with all of you and I hope you can stick around for another nine years when we turn 18 and reach adulthood.

In case you weren't a regular reader in 2011 (and let's be honest, there were just a handful of you back then!), you can check out our first blog post here:  Tweeting into Trouble?

Tuesday, September 1, 2020

Quorum Forum Live: Public Records on Personal Accounts


Quorum Forum 43: Public Records on Personal Accounts – LIVE!

Join us for a live recording of the latest episode of Ancel Glink's Quorum Forum podcast at 12:00 p.m. on Thursday, September 3, 2020. Julie Tappendorf will join us to review a recent Illinois appellate court decision finding communications pertaining to public business in public officials’ personal text messages and e-mail accounts are public records subject to FOIA. Then, Kathy Kunkle explains what qualified immunity means for local governments in the ongoing national conversation about claims against police. Just visit www.youtube.com/ancelglink on Thursday at noon to listen and share your questions with us!

Wednesday, August 26, 2020

New COVID Restrictions for 2 Illinois Regions


Since June 26, 2020, the State of Illinois has been in Phase 4 of the Restore Illinois COVID-19 plan established by the Governor's office. As we reported previously, the Governor had modified the Restore Illinois plan on July 15th to divide up the state into 11 regions to would allow the State to address resurgences of COVID-19 on a more individualized basis. In the last week, the Governor issued two orders that issued new mitigation requirements for Regions 4 and 7.

Region 4 (Metro East)

On August 18, 2020, Governor Pritzker issued EO 2020-51 instituting new mitigation and health restrictions for the Metro East region, which includes Bond, Clinton, Madison, Monroe, Randolph, St. Clair, and Washington Counties. 

The EO places new restrictions on bars and restaurants, including the following:

  • require closure at 11 pm
  • restrict the number of persons at tables for indoor dining
  • require the removal of bar stools from bar areas
  • prohibit dancing
  • mandate customer reservations
  • have customers wait off-premises before being seated. 
Meetings and social events are limited to the lesser of 25 people or 25% of room capacity, and no party buses. 

Gaming and casinos must close at 11 pm and are limited to 25% capacity. 

Region 7 (South Suburban)

Less than a week later, the Governor announced that Region 7, which includes Will and Kankakee counties, would also be subject to new mitigation requirements effective August 26th. These include the following:

The following new mitigation requirements will apply to bars and restaurants:

  • require closure at 11pm
  • prohibit indoor service
  • remove bar stools and prohibit congregating at bars
  • no dancing or standing indoors
  • no seating of multiple parties at one table
  • reservations required for restaurants
Meetings and social events will be limited to 25% capacity, and no party buses.

Gaming and casinos will have to close at 11 pm and will be limited to 25% capacity


Tuesday, August 25, 2020

DCEO Issues Updated Dining Restrictions for all 11 Regions of Illinois


New restrictions were announced today for Illinois bars and restaurants. These restrictions go into effect tomorrow, August 26, 2020. 

The new guidelines will require customers to wear a face covering during any interaction with wait staff and other other employees at bars and restaurants. That means that customers must wear face coverings when employees take customer orders, deliver food and beverages, and service tables. Face coverings must also be worn when picking up carry out orders. These new requirements apply to indoor and outdoor dining facilities throughout the State of Illinois, in all 11 regions.

The updated dining guidelines can be found on DCEO's website here.

Liquor Control Commission Issues Guidance to Municipalities of Emergency Suspension Powers


The Illinois Liquor Control Commission recently issued guidance to local liquor commissioners regarding their authority to temporarily suspend a liquor license for a period of 7 days in certain circumstances pursuant to section 7-5 of the Illinois Liquor Control Act. Section 7-5 provides as follows:

If the local liquor control commissioner has reason to believe that any continued operation of a particular licensed premises will immediately threaten the welfare of the community he may, upon the issuance of a written order stating the reason for such conclusion and without notice or hearing order the licensed premises closed for not more than 7 days, giving the licensee an opportunity to be heard during that period, except that if such licensee shall also be engaged in the conduct of another business or businesses on the licensed premises such order shall not be applicable to such other business or businesses.

The Liquor Control Commission advises local liquor commissioners to take the following steps should a local liquor commissioner decide to exercise this authority against re-opened liquor license establishments whose operations are immediately threatening the welfare of the community, including the following:

1. Consult City Attorney.

2. Commence an investigation.

3. If necessary, notify the bar/restaurant in writing that LLCC could immediately cease the license without a hearing if they violate restaurant/bar reopening requirements.

4. If necessary, issue a written order ceasing the liquor license for no more than 7 days which may include the following information:

 a. Cite 235 ILCS 5/7-5 of the Illinois Liquor Control Act.

 b. State date/s and time/s of when order is in effect.

c. State the basis for LLCC conclusions that continued operation of the bar/restaurant will immediately threaten the welfare of the community.

d. State that the licensee has the right to be heard during the license cessation period. For example, LLCC could allow the licensee to submit a plan to help ensure compliance with State bar/restaurant requirements. 

e. Sign and date the order.

f. Require law enforcement agency to personally serve the order on owners/officers.

g. Monitor and enforce order if necessary. 

This guidance reminds municipalities of the authority they already have under state law to deal with licensed establishments whose operations are threatening the public welfare, such as during a pandemic. 

Monday, August 24, 2020

President Trump Appeals Twitter Case to the U.S. Supreme Court


Last Thursday, President Trump filed a petition for leave to appeal asking the U.S. Supreme Court to overturn a previous ruling by an appeals court that found his actions in blocking and banning users on Twitter to be in violation of the First Amendment. You can read the petition here.

The question that President Trump is asking the U.S. Supreme Court to answer is this:

Whether the First Amendment deprives a government official of his right to control his personal Twitter account by blocking third-party accounts if he uses that personal account in part to announce official actions and policies.

You may recall that we have reported on this case on Municipal Minute before, including a summary of the Second Circuit Court of Appeals ruling against President Trump. You can read the Second Circuit's decision in Knight First Amendment Institute v. Donald J. Trump hereThat ruling determined that because the President had used his @RealDonaldTrump Twitter account to discuss government business and report on and even take official actions, it was considered a public forum for purposes of the First Amendment. As a result, his banning and blocking individuals solely because of their critical speech violated their free speech rights under the First Amendment.

The petition to the Supreme Court contains much of the same arguments made at the court of appeals level. The petition includes a summary that argues that the court of appeals ruling was in error because it "blurs the line between state action and private conduct" and ignores the critical distinction between the President's official statements on his personal Twitter account and his personal decision to block users from his account. The result, the President argues, is to jeopardize the right of public officials from the President to local village councilpersons to insulate their personal social media accounts from harassment, trolling, or hate speech. A similar argument was made to, and rejected by, the court of appeals which determined that because the President had so intertwined his official speech and actions on his personal Twitter account, it became a protected space for users to criticize and engage in other protected speech.

We had been monitoring this case to see if it would be appealed, and will certainly keep our readers advised as to the next steps, including whether the Supreme Court will grant the petition and hear this case. 

Wednesday, August 12, 2020

PAC Issues Binding Opinion Regarding Medical Provider Records


The PAC recently issued a new binding opinion (PAC Op. 20-006) finding that the Illinois Department of Corrections (IDOC) improperly denied a FOIA request that sought copies of aggregate data on head injuries incurred by inmates in IDOC custody and policies for evaluating head injuries of IDOC inmates and employees. IDOC had denied possessing or maintaining any policies or aggregate data responsive to the request. IDOT acknowledged that its healthcare vendor, Wexford Health Sources, might possess responsive records but argued that Wexford’s policies were confidential and proprietary business documents that are exempt from FOIA disclosure by FOIA exemption 7(1)(g). The requester appealed IDOC’s denial with the PAC. 

Since IDOC contracted with Wexford to provide medical service to inmates, the PAC concluded that responsive aggregate data and policies in Wexford's possession that directly relate to providing medical care to IDOC inmates on IDOC’s behalf are considered public records subject to disclosure under FOIA. Specifically, FOIA states that public records possessed by a party with whom a public body has contracted to perform a governmental function on behalf of the public body, and that directly relate to the governmental function, are considered public records under FOIA. Relying on prior federal and state cases, the PAC determined that both types of records sought by the FOIA request directly relate to the governmental function of providing medical care for inmates. The PAC explained that the “direct relation” requirement helps ensure that parties can only access those records of private contractors that are truly related to its exercise of a governmental function on behalf of a public body, rather than records that are only incidentally or tangentially related to a contract with a public body. Indeed, the PAC highlighted that the purpose of FOIA is to ensure that governmental entities are not permitted to avoid their disclosure obligations under FOIA by contractually delegating their responsibility to a private entity.

The PAC also concluded that IDOC improperly rejected the sought records under FOIA section 7(1)(g) (the trade secret exemption). The PAC noted that IDOC failed to specifically prove that the responsive records constitute a “trade secret, commercial or financial information” and failed to demonstrate that disclosing these records would cause competitive harm. As a result, the PAC concluded that IDOC failed to prove by clear and convincing evidence that any responsive records in Wexford’s physical custody were exempt under FOIA exemption 7(1)(g). 

Post Authored by Eugene Bolotnikov, Ancel Glink

Tuesday, August 11, 2020

State of Illinois Adopts Emergency Enforcement Rules on Face Coverings and Gatherings


Last week, Governor Pritzker announced that his administration filed new IDPH COVID-19 emergency rules for businesses, schools, and child care establishments regarding the use of face coverings and the size of gatherings. 

The rules became effective on August 7, 2020, and they require people over age two to wear a face covering (a mask or cloth face covering to cover their nose and mouth) when they are in a public place and unable to maintain at least a six-foot social distance. The face covering requirement applies whether in an indoor space, such as a store, or in an outdoor space. Any business, service, facility, or organization open to the public or to employees (including schools and day cares) must require employees, customers, and other individuals on the premises to cover their nose and mouth with a face covering when on premises. The emergency rule also prohibits gatherings of more than 50 people (or gatherings of 50% or more of a building’s maximum occupancy if 50% of a building maximum occupancy is less than 50 people). 

The rules provide multiple opportunities for compliance before a penalty is issued. The rules acknowledge that communities may be reluctant to employ existing, pre-pandemic enforcement laws (like revoking a license) so the new rules are intended to provide some flexibility but also more control to keep residents and businesses safe.  

The new enforcement and penalty process is described as follows: 

First, businesses would be given a warning in the form of written notice and encouraged to voluntarily comply with public health guidance. 

Second, businesses that do not voluntarily comply would be given an order to have some or all of their patrons leave the premises as needed to comply with public health guidance and reduce risks. 

Third, if the business continues to refuse to comply, the business could be subject to a fine ranging from $75.00 to  $2,500.00. 

The emergency rules also reinforce the authority of IDPH and local health departments to investigate COVID-19 cases and reaffirm that businesses have a responsibility to cooperate with those investigations.

Post Authored by Julie Tappendorf & Eugene Bolotnikov, Ancel Glink

Monday, August 10, 2020

1st District Issues Opinion On FOIA and Emails/Texts on Personal Devices


The issue of whether the emails/text messages of a public official sent or received on a private device or personal account are subject to public release under FOIA has been discussed many times on this blog. We reported previously on the Champaign v. Madigan case where the 4th District Appellate Court ruled that some electronic communications on private devices or personal accounts may be releasable depending on the circumstances surrounding the communication (i.e., sent during a meeting, sent to a majority of the public body, forwarded to a government account or device). Since that case was decided, the Public Access Counselor of the Illinois Attorney General's Office (PAC) has issued a number of opinions that have gone further than the 4th District case and determined that any electronic communication sent on any device that relates to government business will be subject to FOIA.
 
Recently, the 1st District Appellate Court weighed in on this issue and also seemed to depart somewhat from the 4th District's opinion. In Better Government Association v. City of Chicago Office of Mayor, 2020 IL App (1st) 190038, the 1st District Appellate Court found the City in violation of FOIA for not turning over text messages and emails of certain City officials that were contained on the officials' private devices. 

In 2016, the Better Government Association (BGA) submitted FOIA requests to the City of Chicago Office of Mayor and the City’s Department of Public Health (CDPH), seeking records relating to the discovery of lead in the drinking water at Chicago Public Schools (CPS). In response, the City produced some records, but withheld or redacted others citing various FOIA exemptions. BGA filed a lawsuit claiming that the City violated FOIA by failing to inquire whether the City officials had any personal text messages and e-mails that were responsive to the request. After the circuit court ordered the defendants to search the personal text messages and e-mails of the City officials for responsive records, the City appealed. The 1st District Appellate Court upheld the circuit court’s order and concluded that communications pertaining to public business within City officials’ personal text messages and e-mail accounts are public records under FOIA, and the City failed to conduct a reasonably diligent search by failing to inquire whether the personal accounts of officials named in the FOIA requests contained responsive records. 

The 1st District acknowledged that individual officials are not themselves public bodies under FOIA. However, the court determined that this does not mean their communications about public business are not public records that were prepared for, used by, received by, possessed by, nor controlled by a public body. The 1st District cited the 4th District's opinion in Champaign v. Madigan, which determined that individual city council member communications that were sent or received from personal accounts while the public body was conducting business were public records in the public body’s possession. Although the 4th District concluded that the city council was conducting public business only in certain limited circumstances (such as when a quorum of council members was involved) the 1st District did not restrict its ruling to these circumstances. Instead, the 1st District held that individual officials could function as a public body (and their communications be subject to FOIA) in other circumstances beyond a meeting or a quorum. In this case, the 1st District found that the individual City officials could function as public bodies without any official meeting having been convened because some of them had the authority to make unilateral decisions that would be binding on the City. The 1st District reasoned that concluding otherwise would allow public officials to shield information from the public’s view by using their personal accounts rather than their government-issued ones, which would be inconsistent with FOIA’s goals of transparency, accountability, and promoting public access to information. 

The 1st District rejected the City's concern that requiring public officials to search their personal accounts for communications regarding public business would diminish FOIA’s privacy safeguards since only communications pertaining to public business, rather than information concerning the private lives of public officials, would be subject to disclosure. The 1st District also rejected the City's concerns about the administrative burden of obtaining these communications from individual City officials within the limited time-frame allowed under the FOIA statute for response.

Based on the 1st District's finding that the BGA demonstrated that the City officials used their personal accounts for public business, and that the City failed to perform any inquiry into their officials’ personal accounts, the City was not entitled to a presumption of good faith for a search they failed to conduct. As a result, the First District determined that the City was required to ask whether City  officials used their personal accounts for public business to satisfy FOIA’s requirement of conducting a reasonably diligent search for responsive records.

What does this mean for Illinois local government officials?  That could depend on where they are located in the State. The 4th District's decision in Champaign v. Madigan takes a more limited view on what communications are subject to FOIA when they are sent or received on an official's personal device or account. The 1st District, on the other hand, seems to take a broader view on whether a particular communication sent or received on a personal device or using a personal account is a public record subject to FOIA. As we have stated in previous posts on this topic, it may be best practice to encourage public officials to use their official government devices and/or accounts to communicate about public business and, if they do happen to use their personal device or account for government business, to make sure the officials forward those communications to an official government account.

Post Authored by Julie Tappendorf & Eugene Bolotnikov, Ancel Glink

Friday, August 7, 2020

Quorum Forum Podcast Ep. 42 Released


We advised our readers previously that they could participate "live" in the taping of Quorum Forum Episode 42: Sunshine Laws. For those of you who could not be there, you can now listen to the new episode here. A summary of the episode is below:

We're celebrating summertime on Ancel Glink's Quorum Forum podcast talking about sunshine laws with Eugene Bolotnikov, including the latest guidance from the Public Access Counselor on the Open Meetings Act and Freedom of Information Act during the COVID-19 pandemic. Then, Catie Coghlan reviews how the State of Illinois and large counties are distributing CARES Act Coronavirus Relief Funds to local governments. 

How have your local government meetings changed during the pandemic? Email us at podcast@ancelglink.com! 

This podcast is provided as a service to our public and private sector clients and friends. It is intended to provide timely general information of interest, but should not be considered a substitute for legal advice. Read our full disclaimer: ancelglink.com/disclaimers

Thursday, August 6, 2020

Federal Court Denies TRO to Village in Challenge Against Governor's COVID Orders


As we have reported in the past, there have been a number of lawsuits filed against the Illinois Governor challenging his authority to impose restrictions on various activities and businesses to address the COVID-19 pandemic. One of these lawsuits was one brought by the Village of Orland Park, an Orland Park business, and individuals in Village of Orland Park v. Pritzker seeking emergency injunctive relief to stop the Governor from enforcing various executive orders restricting activities and businesses. A federal district court judge recently issued a ruling in that case denying the Village and other plaintiffs injunctive relief and  in favor of the Governor and dismissed the case.

The lawsuit made a number of arguments against the Governor's actions relating to the pandemic, including that the Governor's orders violated due process rights and protections and exceeded the Governor's authority, among other claims. The Village also argued that it should be allowed to establish its own plan for reopening businesses and other activities in the Village which plan would allow local businesses and activities to reopen sooner than the Governor's executive orders would allow. 

The district court judge rejected the plaintiffs' request for injunctive relief, finding that the plaintiffs did not have a likelihood of succeeding on the merits of their constitutional and statutory claims. The court rejected plaintiffs' argument that it had the right to a hearing before the Governor could impose the executive orders. The court also rejected plaintiffs claim that the orders affected their right to travel and association, finding that the orders affected access to businesses but not travel between places and that the restrictions were facially neutral and advanced a significant government interest in protecting the health of Illinois residents. The court also found that the Village's claims were barred by sovereign immunity, which protects the state from lawsuits from local governments. Finally, the court also found that the balance of harms weighed more heavily in favor of the Governor in protecting the health of Illinois residents from the COVID-19 pandemic, as compared to the minimal harm placed on the plaintiffs in complying with these orders.  

The plaintiffs have until August 28th to appeal the denial of their TRO and preliminary injunctive relief request to the Seventh Circuit Court of Appeals.

Wednesday, August 5, 2020

Court Denies Civil Penalties Request in FOIA Case


An Illinois appellate court recently issued a ruling denying an individual's request for civil penalties under the Freedom of Information Act. Boggan v. FOIA Office of the Department of Corrections, 2020 IL App (4th) 190347-U

In 2016, an inmate at the Dixon Correctional Center filed a FOIA request with the DCC seeking records related to the source and quality of water at the DCC. The DCC responded that it did not possess responsive records, and the inmate filed a request for review with the PAC. In 2017, the PAC issued an advisory opinion finding that DCC failed to conduct a reasonably diligent search, including where and how the records are maintained, and the specific measures the DCC’s chief engineer took to search for those records. The advisory opinion asked the DCC to conduct a renewed search and issue a supplemental response to the requestor. The inmate subsequently filed a lawsuit against DCC in November 2017, after he had not yet received the records, asking the court to order DCC to provide responsive records and impose civil penalties against DCC for acting in bad faith by willfully and intentionally failing to comply with his request. Although the circuit court ordered DCC to provide the records, the court did not impose any civil penalties on DCC. 

On appeal, the appellate court upheld the circuit court’s denial of civil penalties, finding that civil penalties are not available under FOIA for the review of a PAC advisory opinion. The appellate court noted that only a public body’s failure to comply with a binding opinion, rather than an advisory opinion like the one at issue, leads to a rebuttable presumption that a public body willfully and intentionally failed to comply with FOIA. Since the circuit court found that the DCC did not willfully and intentionally fail to comply with the request, the appellate court reasoned that civil penalties against the DCC were unwarranted. Instead of implying bad faith on the part of the DCC, the PAC’s advisory opinion merely found that DCC failed to sufficiently explain its search and expressed concern with the narrowness of the search. Additionally, the court found that DCC replied each time the PAC asked it to do so, except in response to the PAC’s advisory letter. Also, the records DCC eventually produced in August 2018 were created after the inmate’s January 2016 FOIA request, so the records were unavailable at the time of petitioner's initial FOIA request. Based on these facts, the appellate court found that the trial court did not erroneously rule that the DCC did not willfully and intentionally fail to comply with FOIA or otherwise act in bad faith.

Post Authored by Eugene Bolotnikov, Ancel Glink

Tuesday, August 4, 2020

Court Rules in City's Favor in FOIA Challenge


An appellate court recent ruled in favor of a public body in a FOIA challenge in Sherrod v. City of Kankakee, 2020 IL App (3d) 190374-U. 

In 2016, an inmate (plaintiff) filed two FOIA requests with the City of Kankakee for records regarding the murder of a specific individual. After the City conducted a reasonably diligent search for records responsive to the request, the City provided responsive records in the City’s possession and custody, while denying portions of both requests for records the City was unable to locate during their searches. After the plaintiff filed a request for review with the PAC to appeal the City’s denial of certain records, the PAC issued a nonbinding letter requesting the City to provide a requested video in VHS format to the plaintiff, instead of the DVD format originally provided by the City. After the City did not provide the video in VHS format, the plaintiff filed a lawsuit, alleging that the City failed to conduct a reasonably diligent search for records responsive to his request and otherwise failed to properly respond to his FOIA requests. The circuit court dismissed the case, however, finding that the City provided all responsive records in its possession after conducting an adequate search under FOIA for the requested information. On appeal, and the appellate court affirmed the decision in favor of the City.

First, in considering whether the City conducted a reasonable search, the appellate court looked at whether the City's search was reasonably calculated to discover the requested documents and not whether it actually uncovered every existing document. In this case, the City submitted a detailed affidavit describing the locations where City personnel searched for responsive records and ultimately which records the City identified and failed to identify. The appellate court determined that the City’s affidavit demonstrated the City's compliance with its obligation to conduct a reasonably diligent search under FOIA. Moreover, the appellate court noted that the City’s affidavit describing the City’s exhaustive search for records should be accorded a presumption of good faith, which cannot be rebutted by the plaintiff’s purely speculative claims about the existence of other documents.

Next, since the only method available to the City for copying a responsive video was on a DVD because the City lacked the capability to copy the video into the requested VHS format, the appellate court found that the City properly responded to plaintiff's FOIA request when it provided the record in the DVD format. Importantly, the appellate court noted that the passage of time and technological advancements made it unfeasible for the City to copy the video in VHS format. Also, the City’s affidavit demonstrated that the City found an outside company that could copy a VHS video into DVD format, but the company was unable to copy a DVD into a VHS format. As a result, the appellate court determined that the City complied with FOIA by providing the plaintiff with the DVD copy available to the City.  

Also, since the City’s affidavit demonstrated that the City did not possess the requested enhanced FBI within the City’s possession, and because the plaintiff failed to file a counter-affidavit to rebut the City’s affidavit, the appellate court found that the City did not violate FOIA by denying plaintiff's request for items it did not possess. 

Post Authored by Eugene Bolotniko

Monday, August 3, 2020

Case Addresses Employee Termination and Political Affiliation


On July 21, 2020, the Seventh Circuit Court of Appeals decided in Hanson et.al. v. LeVan that the firing of deputy assessors because of their political affiliation violated their First Amendment rights. 

Dawn Hanson and her fellow plaintiffs worked as Deputy Assessors in the Milton Township Assessor’s Office, when Chris LeVan was elected as the new Assessor. Plaintiffs had publicly supported LeVan’s predecessor Bob Earl in his reelection campaign. LeVan won election, and shortly after taking office, he fired plaintiffs, who then sued him, alleging that their termination violated their First Amendment rights.

As a general rule, the First Amendment prohibits the firing of public employees on the basis of their political affiliation. There is an exception to this rule when party affiliation is an appropriate requirement for the position involved. This exception is called the Elrod-Branti exception, named after  two Supreme Court decisions that held that “without political alignment in certain positions, employees occupying those positions could obstruct the implementation of policies presumably sanctioned by the electorate, who placed the current administration in power.” So, when a job description expressly references political affiliation as a requirement for the position, the political affiliation of an employee can be reason for dismissal without violating the First Amendment rights of the employee in question. The Elrod-Branti exception is also called the policymaking exception, because political affiliation of an employee is only of importance for policymaking positions. 

In defending his decision to terminate plaintiffs, LeVan pointed out that the Illinois Tax Code confirmed that the Deputy Assessor position is one for which political alliance is a valid requirement. Plaintiffs, on the other hand, argued that the Deputy Assessor positions did not give them any policymaking authority, and that they were not authorized to perform any advisory or managerial functions. They argued that their positions involved taking measurements of property and inputting those measurements, along with other collected data, into computer programs and formulas that were set by statutes, regulations, state-issued guidelines, and the County and Township Assessors. They further claimed they had no control or discretion over these formulas and programs. In sum, plaintiffs alleged that because they held low-level positions lacking political discretion and for which political affiliation was not a valid requirement, they could not be terminated for political affiliation.

The district court had denied LeVan's motion to dismiss the case on qualified immunity grounds, and LeVan appealed. The Seventh Circuit agreed with the district court, finding that the Deputy Assessor position was a lower-level position involving no political discretion in performing the assessments. The Court further held that LeVan should have understood that firing the plaintiffs because of their political affiliation violated their First Amendment rights. As a result, LeVan was not entitled to qualified immunity at this stage of the litigation, and the case was remanded back to the district court.

Post Authored by Joyce Jezeer and Julie Tappendorf, Ancel Glink

Friday, July 31, 2020

Quorum Forum Podcast Ep. 42: Sunshine Laws - LIVE!


Join Ancel Glink's Quorum Forum live at 5:00 p.m. on Monday, August 3, 2020 for a live recording of our newest podcast episode. We'll celebrate summertime talking about sunshine laws with Eugene Bolotnikov, including the latest guidance from the Public Access Counselor (PAC) on the Open Meetings Act and Freedom of Information Act during the COVID-19 pandemic. Then, Catie Coghlan will review how the State of Illinois and large counties are distributing CARES Act Coronavirus Relief Funds to local governments. 

Just visit youtube.com/ancelglink on Monday at 5:00 p.m. to listen and share your questions with us!

Tuesday, July 28, 2020

Appellate Court Dissolves TRO in Case Involving COVID-19 Records


On April 10, 2020, the McHenry County Sheriff (Sheriff), and the City of McHenry, the Village of Algonquin, the City of Woodstock, and the Village of Lake in the Hills obtained a temporary restraining order (TRO) requiring the McHenry County Department of Health to disclose the names and addresses of people residing in McHenry County who tested positive for COVID-19 to the McHenry County Emergency Telephone System Board (Telephone System Board)

The Department appealed, and the appellate court ruled in the Department's favor and dissolved the TRO in McHenry County Sheriff v. McHenry County Department of Health, 2020 IL App (2d) 200339.

The appellate court held that although the Department had the discretion to release the requested medical information under a HIPPA exemption and similar guidance issued by the Illinois Department of Public Health and the Attorney General’s Office, plaintiffs had no right to the information. Since plaintiffs failed to establish even an arguable right to the information, let alone a fair question, the appellate court ruled that the motion for a TRO should not have been granted because the HIPPA exception permitted, but did not require, the Department to release protected health information. 

Post Authored by Eugene Bolotnikov, Ancel Glink

Tuesday, July 21, 2020

APA Hosting Webinar on Housing Diversity



The American Planning Association’s Planning & Law Division, in partnership with APA Learn, is hosting an upcoming webinar on July 30, 2020, called “Housing for Diversity: Ending Segregation Through Zoning.” Information about the webinar and registration is below:

Thursday, July 30, 2020
12:00 p.m. - 1:30 p.m. CT

In 1974, the Supreme Court declared it constitutional for a locality to limit zoning districts to detached homes occupied by traditional, blood-related families.  Now, nearly 50 years later, the viability and fairness of that ruling is debatable as the effects of race-, ethnic-, and income-segregated housing are laid bare in recent national events, increasing numbers of people choose nontraditional living arrangements, sharing economy platforms such as AirBnB offer seemingly unlimited opportunities for communal living, and traditional forms of housing are becoming increasingly unaffordable for many people.  This panel of legal and policy experts will address the ways in which local governments can and should be modernizing zoning regulations to accommodate inclusion and modern living arrangements, with an eye toward achieving greater access to and fairness in housing.  In addition to developing policy solutions, speakers will offer specific recommendations for code drafting and other regulatory programs.

Information on the webinar cost and how to register can be found here: REGISTER

For registration questions:
E-mail: confregistration@planning.org
Call:  (312) 334-1250

Friday, July 17, 2020

Restore Illinois New Mitigation Plan



On July 15, 2020, Governor Pritzker announced a new mitigation plan that modifies the existing “Restore Illinois” plan aimed at preventing another COVID-19 surge in Illinois. 

You will recall that the first iteration of the “Restore Illinois” plan divided the state into four regions, envisioning a progression through five stages of reopening, each with fewer restrictions on lives and business as the virus came under control. But, under the new plan, Illinois is now separated into 11 smaller regions, with the City of Chicago occupying its own region, with the rest of Cook County County in its own region as well. All of Illinois is currently in Phase 4 of the original “Restore Illinois” plan, and the modified plan does not require any region to make any immediate changes. 

Under the original plan, if one region saw an increase in COVID-19 cases, the entire region, sometimes comprising dozens of counties, could be bumped back to a more restrictive phase. This original approach prompted criticism about lumping some downstate counties with lower case counts together with more densely populated areas seeing higher infection rates, and subjecting both regions to the same restrictions in a one-size-fits-all approach. In response, the modified plan adopts “a more granular approach” with a menu of restrictions to enable the state to act in a more decisive, targeted way in addressing COVID-19 hotspots without reacting more broadly than circumstances require by imposing blanket restrictions across large geographic areas or moving entire regions back to an earlier phase.

Although Illinois has among the lowest positivity-case-rates and highest testing tallies in the country, the Governor announced the possibility of taking certain mitigation measures, including moving a region back to an earlier phase of the reopening plan if cases surge, which could involve renewed restrictions on businesses and social interactions. The Governor’s new plan lists several factors that could move a region back to an earlier phase, namely if a region has a sustained increase in its seven-day rolling average positive test rate, coupled with either an increase in hospital admissions for COVID-19-like illnesses, or a specific reduction in hospital capacity. A region could also be bumped back if it sees three consecutive days of its testing positivity case rate of 8% or more. It is important to note that altough local governments are allowed to create their own locally-tailored reopening plans, these plans cannot be less restrictive than the State’s plan.

Post Authored by Eugene Bolotnikov, Ancel Glink

Tuesday, July 14, 2020

Required Postings for the IMRF and Participating Municipalities



In 2019, Governor Pritzker signed Public Act 101-0504 into law, which amends part of the Illinois Pension Code. Effective July 1, 2020, the new law certain website posting requirements for the Illinois Municipal Retirement Fund (IMRF) and for municipalities.

Of most interest to municipalities is the new requirement that municipalities with a website post a link to the IMRF “Employer Cost & Participant Information” webpage on their websites. Although the law became effective July 1, 2020, this website posting requirement does not take effect until January 1, 2021. The law also makes it clear that it does not require a municipality to establish or maintain a website.

The law also requires the IMRF to post information on its website that includes: (1) copies of resolutions adopted by municipalities on or after January 1, 1995 to participate in the IMRF; (2) an annual report detailing the date that municipalities participating in the IMRF first became a municipality; and (3) all documents pertaining to each participating municipality’s annual projected future contributions and past required contributions. The lIMRF is not required to post information on its website that would be exempt under the Illinois Freedom of Information Act.

Post Authored by Eugene Bolotnikov, Ancel Glink

Monday, July 13, 2020

Updated PAC Guidance on OMA and FOIA During the COVID-19 Pandemic



On July 2, 2020, the PAC issued updated guidance to public bodies regarding complying with the OMA and FOIA during the COVID-19 pandemic. There are very few substantive changes from the previous guidance issued in April, except to update the guidance to be consistent with the recent amendment to the Open Meetings Act authorizing remote meetings during a disaster. We have summarized the guidance below:

OMA Guidance

Requirement for Physical Presence of a Quorum for Members of a Public Body

On June 12, 2020, the Governor signed Senate Bill 2135 (Public Act 101-0640) amending the OMA, which allows public bodies to hold “an open or closed meeting by audio or video conference without the physical presence of a quorum of the members” during a public health disaster as long as several conditions discussed below are satisfied. 

The OMA’s new remote meeting provisions only apply when the Governor or the IDPH Director have issued a disaster declaration because of a disaster, and all or part of a public body’s jurisdiction is covered in the disaster area. The head of the public body must determine that an in-person meeting is not practical or prudent because of a disaster. The OMA requires public meetings to be “convenient and open” for members of the public, although that can be satisfied through remote attendance means. Once the required conditions exist to hold a remote meeting during a disaster, the public body must follow further requirements for conducting the meeting, which are discussed below.

Member Participation
  • All members of a public body participating in the meeting, regardless of their physical location, must be verified and able to hear other participants, discussions and testimony.
  • All votes must be conducted by a roll call, and each member’s vote on each issue must be identified and recorded.
  • At least one member of the public body or the chief legal counsel or chief administrative officer must be physically present at the regular meeting location unless physical presence is “unfeasible due to the disaster”.
  • Each member of the public body who participates in a remote meeting held under these disaster requirements is considered present at the meeting for purposes of determining a quorum and participating in all proceedings.
Public Attendance

If attendance at the regular meeting location is not feasible because of the disaster, the OMA requires public bodies to make alternative arrangements, with the proper notice, to allow interested members of the public to hear all discussion, testimony, and roll call votes. If public bodies are convening via electronic means, the public body should ensure that the public has a means to both observe and comment during these meetings, for example by sharing conference call numbers, weblinks, or other log-in information in the meeting notice. Public bodies may also consider using third party resources that provide conference call-in lines or other virtual meeting programs to host their meetings during the pandemic.

Notice Provisions

In addition to the existing OMA notice requirements, the updated guidance reminds public bodies that the new law requires notice for remote meetings to be provided to all public body members, posted on the body’s website, and provided to any news media who has requested notice of meetings. However, if the public body declares a bona fide emergency, notice will be given under existing OMA notice requirements. In the event of a bona fide emergency meeting, the presiding officer must state the nature of the emergency at the beginning of the meeting.

Recordings

The updated guidance also reminds public bodies that they need to create a verbatim audio or video record of any remote open meeting which must be made available to the public. These verbatim records must be kept for at least 18 months after the meeting was held, in the same manner that verbatim recordings of closed sessions are retained.

Postponing or Cancellation of Public Meetings

If a public body cancels a meeting after it already posts the meeting notice and agenda in accordance with the OMA’s 48-hours’ notice requirement, the public body should place the cancellation notice on its website, at the principal office of the public body, and at the meeting location. Also, the PAC reminds public bodies that the 10 days’ notice of change by publication in a newspaper requirement only applies to changes in the schedule of regular meetings, not to cancelling a single meeting or changing a meeting date.

Meetings Held In-Person

If a public body decides to hold an in-person meeting, or members of the public are present at the meeting location to observe a remote meeting, the PAC encourages public bodies to be mindful of public health considerations, including holding meetings in larger rooms to maintain social distancing, maintaining a separate room for the public that is video or audio linked to the room where the public body is meeting, recording the entire meeting for people who cannot attend or access meetings during the pandemic and posting the open session on the public body’s website, and clearly designating the location of the meeting in the notice with instructions for accessing the meeting remotely, as well as including signs in the facility hosting the meeting so the public is aware of the specific location where a meeting is being held.

Public Comment

Since the OMA requires public bodies to allow members of the public to comment at meetings, the PAC urges public bodies to provide multiple remote access options to the public, including telephone or video-conference capabilities, and update their websites and social media with the goal of openness and transparency. The PAC also encourages public bodies to accept public comment by email or written submission and read those public comments into the record of the meeting (although this is not required by state statute). If members of the public attend meetings in-person, the PAC encourages adhering to social distancing guidelines, having commenters approach a microphone one at a time, and avoid gatherings in close proximity.

FOIA Guidance

While public bodies are taking steps to protect their employees and the public from COVID-19 by reducing staff, adopting remote work arrangements and partially or fully closing public offices, the PAC reminds public bodies that no legislative actions or executive orders issued by the Governor have relaxed FOIA’s requirement for public bodies to respond to FOIA requests within 5 business days. So, public bodies should continue to comply with FOIA and respond to each request as promptly as possible under the circumstances.

However, the PAC reiterates that public bodies can extend the time to respond to requests for an additional 5 days based on the reasons described in the FOIA by notifying requestors about the reasons for the delay and the date when the public body will respond to the request. Even with an extension, the PAC recognizes that responding to requests may be difficult, and encourages requestors and public bodies to reach a reasonable, mutually agreeable response period to comply with FOIA requests. Also, due to public bodies operating with limited staff and resources, remote work challenges, partially or fully closed offices, and employees unable to work due to infection, the PAC encourages public bodies to consider using the unduly burdensome exemption, particularly in circumstances where unavailable staffers cannot review records or the request requires reviewing records located off-site that are unattainable.

Based on this guidance, the recommend best practice includes first trying to work with requestors to reach an agreeable extension deadline. Then, if the requester refuses to agree to an extension and will not narrow their request to a more manageable proportion that the public body can fulfill, then the public body could consider invoking the unduly burdensome provision. 

Post Authored by Eugene Bolotnikov, Ancel Glink

Friday, July 10, 2020

Court Rejects Bad Faith Claims in FOIA Dispute



In Mohammad v. Chicago Police Department, 2020 IL App (1st) 190011, the First District Appellate Court elaborated on a public body’s duty to conduct a reasonable diligent search for records in response to a FOIA request. The court also looked at whether a public body that previously disclosed information in response to criminal discovery proceedings waives their right to assert future FOIA exemptions over the same information. 

The case involved two FOIA requests submitted to the Chicago Police Department (“CPD”) in September 2016. The requests sought police reports and other investigatory records for a particular case number. CPD responded to both requests by producing responsive records and providing detailed explanations for applicable FOIA exemptions under FOIA sections 7(1)(b), 7(1)(c) and 7(1)(d)(iv). In December 2017, the requestor sued CPD, requesting the circuit court to order CPD to fully release the requested records and penalize CPD for acting in bad faith when responding to both requests. In November 2018, the circuit court granted CPD’s motion for summary judgement, concluding that CPD fully complied with both requests by providing the requestor with all responsive records, that CPD’s redactions were proper and that a civil penalty was inappropriate because CPD did not violate FOIA.
Reasonably Diligent Search
On appeal, the requestor claimed that CPD failed to produce all responsive records in response to the FOIA requests. CPD rebutted that claim by demonstrating that its search was reasonable by providing an affidavit from CPD’s FOIA Officer that responded to the requests. The affidavit detailed CPD’s process for reviewing FOIA requests and the search for responsive investigative files undertaken by CPD’s Bureau of Detectives. The court rejected the requester's argument that CPD’s search for responsive records was conducted in bad faith. The court acknowledged that just because documents may have existed during the trial did not mean that the documents still existed or that CPD had a reasonable method to access these records. As a result, the court found that CPD did not fail to comply with FOIA by not producing documents that CPD was unable to locate after a reasonably diligent search. 

Waiver
The requester also argued that CPD waived its right to claim FOIA exemptions over certain records that were previously produced during a criminal proceeding. However, the appellate court disagreed, noting that even if CPD had previously provided unredacted records to the State's Attorney's Office, which then provided them to the defendant’s attorney during discovery in a criminal matter, that does not mean that CPD waived its right to claim exemptions in response to a FOIA request. Indeed, the court underscored that FOIA’s disclosure standards are different than the criminal trial disclosure requirements, and that similar documents should not be treated similarly in the two different types of proceedings.

Penalties
Lastly, because CPD’s response to the first FOIA request produced 60 pages versus the 242 pages CPD produced in response to the second request, the requester argued this disparity proved that the CPD acted in bad faith in responding to the initial request. Notably, the court recognized that the requester’s later request was far broader and more detailed in specifying the types of documents sought. As a result, CPD’s more limited response to a more limited request was not evidence that CPD acted in bad faith. So, the requester was not entitled to civil penalties.
Post Authored by Eugene Bolotnikov, Ancel Glink

Thursday, July 9, 2020

PAC Issues Binding Opinion Interpreting FOIA Exemption Regarding Fair Trial or Impartial Hearing



The PAC recently issued a binding opinion finding a public body in violation of FOIA for denying various records pertaining to a fatal car accident. The PAC rejected the public body's reliance on the FOIA exemption contained in section 7(1)(d)(iii) which allows a public body to withhold information that creates a substantial likelihood of depriving a person of a fair trial or impartial hearing. PAC Op. 2020-05.

In its opinion, the PAC concluded that a Sheriff’s Office improperly used FOIA 7(1)(d)(iii) to withhold squad car footage, emergency dispatch audio recordings, and other written crash and incident reports requested by a reporter regarding a police chase that resulted in a fatal crash. The Sheriff’s Office had defended its denial of te request by arguing that disclosing the requested records would deprive the Sheriff’s Office of its right to a fair trial or an impartial hearing in a wrongful death lawsuit brought against the Sheriff's Office and individual employees, because releasing the videos would make it more difficult to select a fair and impartial jury in the trial.

To demonstrate that records are exempt under FOIA section 7(1)(d)(iii), the Sheriff’s Office was required to show that (1) a trial or adjudication is pending or truly imminent and (2) that disclosing the requested materials would more likely than not seriously interfere with the fairness of those proceedings. Relying on prior Illinois cases and PAC decisions, as well as cases from other States and federal cases interpreting a similar exemption in the Federal FOIA statute, the PAC stated that the Sheriff’s Office failed to specifically explain how or why disclosing the requested records would deprive the Sheriff’s Office of a fair trial or impartial hearing or prejudice the jury. The PAC rejected the Sheriff’s Office speculation that the effects of potential publicity from disclosing the videos could taint the jury pool for the future trial was conclusory and failed to satisfy the level of proof required to exempt the requested public records by FOIA. The PAC also noted that the Sheriff’s Office failed to specifically demonstrate how disclosing the records would substantially deprive a person of a fair trial or impartial hearing in this particular trial, since most plaintiffs in pending lawsuits involving automobile fatalities request jury trials.

Post Authored by Eugene Bolotnikov, Ancel Glink