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Tuesday, December 31, 2013

PAC Opinions 2013 In Review

2013 did not look too different from 2012 with respect to the outcomes of PAC rulings this year - although, we did have our first PAC ruling in favor of the public body (PAC 13-010).  We also had a PAC ruling overturned by the appellate court (PAC 13-007).  The PAC also ruled that the Attorney General properly denied a FOIA request under the unduly burdensome "exception", basically ruling that its own office acted lawfully. 
Enjoy the recap and Happy New Year!
PAC Opinions 13-001, 004, 005 and 009 (duty to respond)
In these virtually identical opinions, the Chicago Public Schools, the villages of Caseyville and Cleveland, and Chicago State University all violated sections 3(d) and 9(a) of the FOIA by failing to respond to a request for records within five business days. Each governmental body also failed to participate in the PAC’s review process. PAC 13-004, PAC 13-005.

PAC Opinion 13-002 (improper final action)
In PAC 13-002, the Chicago Park District Board of Commissioners took improper final action by voting to increase admission fees at three museums, when that topic was not on the agenda for the open meeting. The agenda stated: "Communications and Reports: Committee on Programs and Recreation," without identifying the particular subject matter from the earlier committee meetings that would be addressed with final action by the board.

PAC Opinion 13-003 (final action)
In PAC 13-003, the Western Illinois University Board of Trustees violated section 2(e) of the OMA by taking final action in a closed meeting. Although the board was authorized to discuss the employment of a tenured faculty member during closed session, the board improperly took final action by voting in the closed meeting to terminate the employee.

PAC Opinion 13-006 (secret ballots)

In PAC 13-006, the Edgar County Airport Advisory Board violated OMA section 2(e) when it voted by secret ballot to recommend to the county a candidate to fill a vacant seat on the advisory board. The board read aloud the names of candidates during a public meeting, the members voted on paper ballots, and the results of the vote were stated publicly, without disclosing the members’ individual selections.

PAC Opinion 13-007 (closed session issues)

In PAC 13-007, the Board of Education for Springfield Public School District No. 186 violated OMA section 2(e) by taking final action on an employment separation agreement in closed session. The board signed the agreement in closed session on February 4, but did not vote on the matter in an open meeting until March 5, some five days after the PAC sent notice to the board of the complaint filed against it. The board also failed to record some of its closed sessions in violation of section 2.06(c), and it failed to summarize the closed-session discussions in violation of section 2.06(e)(3).
Update on PAC Op. 13-007: A Sangamon County Judge overturned the PAC ruling, holding that the school district board members did not violate the OMA by signing the separation agreement in executive session. The court also remanded the matter back to the PAC to investigate further whether the district violated the OMA by not discussing the terms of the agreement prior to its vote (the court acknowledged that the district did post information about the terms of the agreement on its website).

PAC Opinion 13-008 (basis for litigation)

In PAC 13-008, the New Lenox Public Library District Board of Trustees violated the OMA by failing to record and enter into its closed-session minutes the basis for asserting that litigation was probable or imminent. The PAC found that the board’s reasons for believing the litigation was probable or imminent were justified and the closed-session discussions were appropriate, but the failure to record those reasons in the minutes violated section 2(c)(11) of the Act.
PAC Opinion 13-010 (nature of the matter)
 In a rare decision in favor of a governmental entity, the PAC determined the Board of Education for Springfield Public School District No. 186 did not take final action in a closed session, as alleged by the complaining party, nor did it violate section 2(e) of the OMA because it adequately informed the public of the nature of the business being conducted before it voted in an open meeting to appoint an interim superintendent. PAC 13-010. The board properly discussed candidates in closed meetings and "informally agreed" on the likely appointee, but the board followed those discussions with a duly noticed open meeting during which it voted on the candidates.

PAC Opinion 13-011 (internal investigations)

The City of Bloomington violated FOIA section 7(1)(n) by improperly withholding investigatory records and citations related to a traffic accident involving the city’s assistant chief of police. The PAC found the city never "adjudicated" the underlying allegations against the police chief, and therefore the records related to the imposition of final discipline were not exempt from disclosure.
PAC Opinion 13-012 (possession of records)

The UNO Charter School Network ("UCSN") violated FOIA section 3 by failing to provide records that were in the possession and control of its subsidiary organization, UNO Advantage Charter School, Inc. ("UNO"). The PAC found that UCSN was the "governing body" of UNO, and both were subject to the FOIA pursuant to the Illinois Charter Schools Law. The two organizations were so closely related that the PAC ruled UCSN had control of documents that were in the possession of UNO, and therefore UCSN should have provided all requested documents from both entities.
PAC Opinion 13-013 (duty to respond)

In PAC 13-013, the City of Harvey violated FOIA sections 3(d) and 9(a) by failing in part to respond to a request for records within five business days. The city timely provided some of the requested documents, but additional records could not be located and therefore were not disclosed. The PAC ruled that failing to provide records that cannot be located is a denial of the FOIA request, and the city’s failure to inform the requester of this denial violated the Act.

PAC Opinion 13-014 (location of meetings)
In PAC 13-014, The Board of Trustees of the Broadlands-Longview Fire Protection District violated OMA section 2.01 by holding a special meeting at a location that was not "convenient and open" to the public. The board held the meeting at its attorney’s law office in Springfield, which is some 26 miles from the board’s regular meeting place at the fire station in Broadlands.

PAC Opinion 13-015 (preliminary or draft records)

The Illinois State Police violated FOIA by failing to turn over preliminary monthly crime report statistics submitted to the ISP by the Harvey Police Department. The ISP had denied the request based on the "draft document" exception, arguing that the statistics were still preliminary in nature, and had not yet been reviewed or published by the ISP. In PAC 13-015, the PAC disagreed, concluding that the mere fact that records are subject to review and further revision does not render them preliminary for purposes of the preliminary records exception.
PAC Opinion 13-016 (description of final action)

In PAC 13-016, a school district in violation of the Open Meetings Act because it failed to name the employee when it took final action to terminate the employee in open session. The PAC rejected the district's argument that it was protecting the reputation and privacy of the employee by not disclosing the employee's name in its vote, concluding that taking "final action" without disclosing the name of the employee terminated by the school district board deprived the public "of any meaningful information concerning the practical effect of the Board's decision."

PAC Opinion 13-017 (police report and discovery)

In PAC 13-017, the city denied a FOIA request for a police report, citing 7(1)(d) of FOIA that exempts law enforcement records because release would interfere with ongoing law enforcement proceedings and deprive a person of a fair trial. The PAC concluded that the City did not meet its burden of showing by clear and convincing evidence that FOIA prohibited disclosure because the City failed to provide enough detail about the ongoing investigation and how the disclosure of the records would deprive a person of a fair trial. The PAC also rejected the City's argument that the requester should obtain the records through discovery, stating that just because records might not be available through discovery does not mean that they should not be accessible through FOIA.

PAC Opinion 13-018 (outside consultant records and fees)
In PAC 13-018, a union group submitted a FOIA request seeking city records relating to a sidewalk/curb improvement project. Although the city provided copies of some of the records, it informed the requester that it would have to pay $1,136.00 for copies of records held by the city engineering consultant to cover the city's actual costs. The PAC ruled against the City, finding that under the city's agreement with the private engineering firm and the FOIA statute, the requested records were public records and the city could not charge the requester for the costs of search and personnel time.

Post Authored by Julie Tappendorf, Ancel Glink


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