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Thursday, April 9, 2020

UPDATE to Attorney General Guidance on FOIA & OMA

On March 18, 2020, we reported on the Illinois Attorney General's release of guidance to public bodies on compliance with the OMA and FOIA during the COVID-19 pandemic. You can read a summary of that Guidance in our blog post here. [Note that the link in that blog post now leads to the updated guidance issued April 8th and discussed below]

Today, the Attorney General released an update to its Guidance to Public Bodies on the Open Meetings Act and the Freedom of Information Act during the COVID-19 Pandemic dated April 9, 2020. Much of the March 18th Guidance is still there, but it has been updated to reflect the Governor's extension of the stay at home order and to address meetings that are held entirely remotely. The Updated Guidance also includes additional guidance on compliance with FOIA deadlines. 

The following is a summary of the updated language in the Updated Guidance:

Background Section Added

The Updated Guidance includes a new section summarizing the Governor's Disaster Proclamations and Executive Orders. That section emphasizes the authority of local governments to determine for itself what functions and employees are "essential" under the stay at home order. [Note this does not include the ability for a public body to determine that FOIA is not "essential" - see discussion below]

Cancellation or Postponing of Meetings

The Updated Guidance emphasizes the ability of public bodies to cancel or postpone meetings if the public body does not have critical issues that must be addressed. The Updated Guidance reminds public bodies to post notice at its main office and on its website when it cancels meetings.

Convenient and Open Meetings

The Updated Guidance includes recommendations for meetings that are held entirely remote/electronically, including the following:
  1. The notice/agenda for a remote meeting should include instructions on how the public can access the meeting remotely. 
  2. Public bodues should ensure that the public has the means to both observe and comment during the remote meeting. For example, call-in or log-in information can be shared on the meeting notice.
  3. Public bodies should offer multiple ways for the public to access the meeting, such as providing both a telephone number and a weblink so people without internet service can access the meeting.
  4. Public bodies that use a third party resource for conference call or other virtual meeting programs should exercise caution to avoid hijacking of the meeting by outside sources and to protect user privacy and security.
  5. Public bodies should record the remote meeting and post those recordings on their websites so members of the public who cannot attend a remote meeting can access the recording after the meeting. 
  6. Public bodies are encouraged to provide remote access to members of the public even if some members of the public body will be in attendance in person so those who are subject to an isolation or quarantine order are able to access the meeting.

Public Comment at Meetings

The Updated Guidance recommends that public bodies consider taking public comment by email or other written submission and reading those public comments into the record of the meeting. If a meeting will be convened remotely, the public body should provide multiple ways for the public to comment, including telephone or video call-in capabilities in addition to the emailed/written comments.

Freedom of Information Act Deadlines

The Updated Guidance includes new language stating that the Attorney General does not have the authority to modify or suspend FOIA's statutory deadlines, and that any such change to a state law would have to come from the Governor in the form of an executive order or by legislative act. The Updated Guidance also seems to reject any argument that a public body could determine for itself that FOIA is not an "essential government function" under the Governor's stay at home order. As a result, public bodies must continue to comply with FOIA, although they can take the five-day extension allowed by FOIA and come to a mutual agreement with the requester for a longer time-frame for response.

New to the Updated Guidance, however, is language that the Attorney General acknowledges the difficulties public bodies are facing with the current limited staffing and resources most are operating with due to the stay at home order. The following paragraph suggests that public bodies could set reasonable time periods beyond the statutory deadlines if they are "unable to meet statutory deadlines due to the circumstances surrounding COVID-19":
Public bodies that are unable to meet statutory deadlines due to the circumstances surrounding COVID-19 may determine it is appropriate to set reasonable time periods beyond the statutory deadlines within which to respond to FOIA requests during this time of crisis. Determinations about reasonable extensions should take into consideration the extent to which public bodies have staff members with the necessary expertise and resources available to respond to FOIA requests given the exigent circumstances. Please note that when the restrictions of the statewide disaster proclamations are lifted, public bodies will be required, once again, to comply with all applicable time periods and deadlines set out in FOIA.
It is not clear how this seemingly more flexible language about complying with statutory FOIA deadlines squares with the Attorney General's statement that it lacks authority to modify or suspend the statutory deadlines. As a result, a best practice would be for public bodies to first try to work with the requester to come to an agreeable extended deadline. Then, if the requester refuses to agree to an extension and will not narrow his or her request to a more manageable proportion that the public body can fulfill, then the public body could consider invoking the "unduly burdensome" provision. 


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