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Wednesday, March 13, 2013

Illinois Bills Propose to Amend OMA and FOIA

In this latest legislative session, there have been a number of bills introduced to amend the Open Meetings Act and Freedom of Information Act.  The Illinois Municipal League has done an excellent job summarizing 20 of these proposed bills on its website.  One of the proposed OMA bills seems particularly troubling to local governments. 
HB 2872 would amend the OMA to provide that if a person requests information from the corporate authorities of a public body during a meeting, and the public body does not respond to that request during the meeting, then the corporate authorities are required to follow up with a written response to the request prior to or at the next meeting of the public body.
There are plenty of issues with this proposed legislation, some of which are raised below.  

First, state law already provides a procedure for requesting and obtaining information from a public body.  Under the Freedom of Information Act, an individual can request a copy of a public record, or inspect a public record, and the public body has five business days to respond to that request.  The Open Meetings Act is not intended to be a public record or information statute. Instead, the purpose of the OMA is to govern the conduct of meetings of public bodies, including establishing certain notice obligations and permitting the public to attend. 

Second, it is unclear how the "corporate authorities" would provide a written response by the next meeting.  The corporate authorities of a public body (e.g., a village board or city council) act legislatively - must they first list their response on the next meeting agenda for action before they release it?  Did the bill sponsor mean to say the public body must respond? 

Third, how will this bill be enforced?  Since the new obligation is under the OMA (rather than FOIA), does that mean criminal penalties will apply for non-compliance? 

Fourth, public comment is intended to allow individuals to express their opinions, not engage in a debate - does this proposed legislation suggest that the corporate authorities (as a legislative entity, no less) are obligated to respond to questions? 

Fifth, what if there are different views or positions among members of the corporate authorities - must the corporate authorities respond with a majority and minority response? 

There is simply no need for the establishment of a new public information procedure within the OMA when a perfectly adequate procedure already exists under FOIA.  If an individual requests information at a public meeting and does not obtain that information, he or she always has the right to file a FOIA request to either inspect or receive a copy of the public record containing the information he or she seeks.
Post Authored by Julie Tappendorf, Ancel Glink


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