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Wednesday, March 18, 2020

BREAKING: Illinois Attorney General Issues Guidance on OMA and FOIA

Many of the questions we receive from local government officials and employees relate to compliance with the Open Meetings Act and FOIA during a time where social distancing is encouraged and limited staff and resources are available. 

As we reported earlier this week, the Governor issued an Executive Order (EO) suspending certain aspects of the OMA relating to electronic attendance so that public bodies can meet electronically. As a follow up to the Governor's EO, the Illinois Attorney General issued guidance on the OMA and FOIA which you can find here.  

Here's a summary of the key points in the AG's guidance:

Open Meetings Act

The Attorney General's guidance reminds public bodies that while the Governor's EO suspended certain aspect of the OMA relating to electronic participation, other requirements of the OMA must still be followed. For example, meetings must still be "open and convenient" to the public, and public comment must be provided at these meetings even when members of the public body are attending electronically.

The Attorney General recommends that, where possible, government meetings should be canceled or postponed. If a public body must meet, the Attorney General recommends the following:
  • Members of the public body are encouraged to utilize remote access
  • Meetings where 50 or more people might attend should be canceled or postponed
  • Public bodies should ensure that video, audio, or telephone access is provided to members of the public who want to participate in the meeting, and consider using available resources for virtual meetings
  • Meetings should be held in a large enough room to facilitate social distancing or consider a separate room for members of the public with streaming video or audio of the meeting
  • Public bodies are encouraged to record the meeting and post the recordings on their websites
  • Public bodies should clearly identify the location of a meeting on the notice and posting
  • Public bodies should consider taking public comment by email or written submission and read those comments at the meeting
  • Public bodies should update their websites and social media to keep the public informed 
Freedom of Information Act

The Governor has not yet issued an Executive Order on compliance with FOIA requests during this emergency, and the Attorney General's guidance notes that public bodies are still subject to the deadlines imposed by FOIA to respond to a request.

However, the AG's guidance does acknowledge that public bodies are operating with limited staff and resources. The AG notes that public bodies can take advantage of the 5 day extension authorized by FOIA. If a public body needs additional time beyond the 5 days, the AG recommends the public body work with the requester to come to a mutually agreed upon response time. The AG's guidance expressly asks members of the public and the media to work with public bodies on reasonable and appropriate response times given the emergency situation and limitations on public body staff and resources.


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