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Monday, September 8, 2014

Public Body Cannot Require a Person to Disclose Address During Public Comment

Just last month, we reported on the 35 non-binding opinions issued by the Public Access Counselor interpreting and applying the public comment provision of the OMA (section 2.06(g)).  The PAC has now issued a binding opinion on the subject of public comment.  In the 9th binding opinion of 2014, the PAC said that a public body cannot require an individual to disclose his or her home address during public comment.  PAC Op. 14-009.

The Lemont Village Board held a meeting on April 14, 2014.  The Board had a practice of asking members of the public who wished to speak during public comment to provide their home address prior to addressing the Board.  Ms. Hughes initially declined to provider her address, but then provided it before speaking during public comment. She subsequently filed a complaint with the PAC office.

The PAC reviewed section 2.06(g) which provides individuals with an opportunity to address public officials under rules established and recorded by the public body.  The PAC acknowledged that although the statute does not specifically address the types of rules public bodies may adopt, public bodies can generally adopt reasonable "time, place, and manner" rules that are necessary to further a significant governmental interest, citing federal cases that did not interpret the OMA but involved First Amendment claims.  The PAC then reviewed Lemont's public comment rules that had been previously enacted by ordinance, and found that they did not expressly require members of the public to provide their home addresses before speaking.  The PAC rejected Lemont's "custom and practice" of requiring individuals to state their address, stating that all limitations on public comment must be detailed in the rules.

Although the opinion could have concluded here - that the Lemont Village Board cannot enforce a limitation that is not recorded in a written policy (the address disclosure) - the PAC went a step further and stated its opinion on the address disclosure requirement.  In the PAC's opinion, "section 2.06(g) does not support a requirement that a person must provide his or her complete home address prior to being allowed to make public comment."  Even if Lemont had included the address disclosure requirement in its established and recorded rules, "such a rule would impermissibly exceed the scope of the rulemaking contemplated by section 2.06(g)."   Implying that the issue is related to an individual's right to freedom of speech under the First Amendment (rather than a statutory right under the OMA), the PAC concluded as follows:
Requiring a member of the public to provide his or her complete home address prior to speaking may have a chilling effect on individuals who wish to speak at public meetings. Therefore, we conclude that requiring speakers to state their home addresses prior to addressing public bodies violates section 2.06(g) of OMA, even if such a rule is established and recorded by the public body.
The PAC's public comment opinions are beginning to look less like statutory interpretations and more like court decisions on questions of a constitutional nature - arguably, well outside the PAC's jurisdiction.  

Post Authored by Julie Tappendorf


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