On July 2, 2020, the PAC issued updated
guidance to public bodies regarding complying with the OMA and FOIA during the COVID-19 pandemic. There are very few substantive changes from the previous guidance issued in April, except to update the guidance to be consistent with the recent amendment to the Open Meetings Act authorizing remote meetings during a disaster. We have summarized the guidance below:
OMA
Guidance
Requirement for Physical Presence
of a Quorum for Members of a Public Body
On June 12, 2020, the Governor
signed Senate Bill 2135 (Public
Act 101-0640) amending the OMA, which allows public bodies to hold “an open
or closed meeting by audio or video conference without the physical presence of
a quorum of the members” during a public health disaster as long as several
conditions discussed below are satisfied.
The OMA’s new remote meeting
provisions only apply when the Governor or the IDPH Director have issued a
disaster declaration because of a disaster, and all or part of a public body’s
jurisdiction is covered in the disaster area. The head of the
public body must determine that an in-person meeting is not practical or
prudent because of a disaster. The OMA requires public meetings to be
“convenient and open” for members of the public, although that can be satisfied through remote attendance means. Once the required conditions
exist to hold a remote meeting during a disaster, the public body must follow
further requirements for conducting the meeting, which are discussed below.
Member Participation
- All members of a public body
participating in the meeting, regardless of their physical location, must be verified and able to hear other participants, discussions and testimony.
- All
votes must be conducted by a roll call, and each member’s vote on each issue
must be identified and recorded.
- At least one member of the public body or the
chief legal counsel or chief administrative officer must be physically present
at the regular meeting location unless physical presence is “unfeasible due to
the disaster”.
- Each member of the public body who participates in a remote
meeting held under these disaster requirements is considered present at the
meeting for purposes of determining a quorum and participating in all
proceedings.
Public Attendance
If attendance at the regular
meeting location is not feasible because of the disaster, the OMA requires
public bodies to make alternative arrangements, with the proper notice, to allow interested members of the public to hear all discussion, testimony, and
roll call votes. If public bodies are convening via electronic means, the
public body should ensure that the public has a means to both observe and
comment during these meetings, for example by sharing conference call numbers,
weblinks, or other log-in information in the meeting notice. Public bodies may
also consider using third party resources that provide conference call-in lines
or other virtual meeting programs to host their meetings during the pandemic.
Notice Provisions
In addition to the existing OMA
notice requirements, the updated guidance reminds public bodies that the new law
requires notice for remote meetings to be provided to all public body members,
posted on the body’s website, and provided to any news media who has requested
notice of meetings. However, if the public body declares a bona fide emergency,
notice will be given under existing OMA notice requirements. In the event of a
bona fide emergency meeting, the presiding officer must state the nature of the
emergency at the beginning of the meeting.
Recordings
The updated guidance also
reminds public bodies that they need to create a verbatim audio or
video record of any remote open meeting which must be made
available to the public. These verbatim records must be kept for at least 18
months after the meeting was held, in the same manner that verbatim recordings of closed sessions are retained.
Postponing or Cancellation of
Public Meetings
If a
public body cancels a meeting after it already posts the meeting notice and
agenda in accordance with the OMA’s 48-hours’ notice requirement, the public
body should place the cancellation notice on its website, at the principal
office of the public body, and at the meeting location. Also, the PAC reminds
public bodies that the 10 days’ notice of change by publication in a newspaper
requirement only applies to changes in the schedule of regular meetings, not to
cancelling a single meeting or changing a meeting date.
Meetings Held In-Person
If a public body decides to hold an
in-person meeting, or members of the public are present at the meeting location
to observe a remote meeting, the PAC encourages public bodies to be mindful of
public health considerations, including holding meetings in larger rooms to
maintain social distancing, maintaining a separate room for the public that is
video or audio linked to the room where the public body is meeting, recording
the entire meeting for people who cannot attend or access meetings during the
pandemic and posting the open session on the public body’s website, and clearly
designating the location of the meeting in the notice with instructions for
accessing the meeting remotely, as well as including signs in the facility
hosting the meeting so the public is aware of the specific location where a
meeting is being held.
Public Comment
Since the OMA requires public
bodies to allow members of the public to comment at meetings, the PAC urges
public bodies to provide multiple remote access options to the public,
including telephone or video-conference capabilities, and update their websites
and social media with the goal of openness and transparency. The PAC also
encourages public bodies to accept public comment by email or written
submission and read those public comments into the record of the meeting (although this is not required by state statute). If
members of the public attend meetings in-person, the PAC encourages adhering to
social distancing guidelines, having commenters approach a microphone one at a
time, and avoid gatherings in close proximity.
FOIA
Guidance
While public bodies are taking
steps to protect their employees and the public from COVID-19 by reducing staff,
adopting remote work arrangements and partially or fully closing public
offices, the PAC reminds public bodies that no legislative actions or executive
orders issued by the Governor have relaxed FOIA’s requirement for public bodies
to respond to FOIA requests within 5 business days. So, public bodies should
continue to comply with FOIA and respond to each request as promptly as
possible under the circumstances.
However, the PAC reiterates that
public bodies can extend the time to respond to requests for an additional 5
days based on the reasons described in the FOIA by notifying requestors about
the reasons for the delay and the date when the public body will respond to the
request. Even with an extension, the PAC recognizes that responding to requests
may be difficult, and encourages requestors and public bodies to reach a
reasonable, mutually agreeable response period to comply with FOIA requests.
Also, due to public bodies operating with limited staff and resources, remote
work challenges, partially or fully closed offices, and employees unable to
work due to infection, the PAC encourages public bodies to consider using the
unduly burdensome exemption, particularly in circumstances where unavailable
staffers cannot review records or the request requires reviewing records
located off-site that are unattainable.
Based on this guidance, the recommend best practice includes
first trying to work with requestors to reach an agreeable extension deadline.
Then, if the requester refuses to agree to an extension and will not narrow
their request to a more manageable proportion that the public body can fulfill,
then the public body could consider invoking the unduly burdensome
provision.
Post Authored by Eugene Bolotnikov, Ancel Glink
