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Blog comments do not reflect the views or opinions of the Author or Ancel Glink. Some of the content may be considered attorney advertising material under the applicable rules of certain states. Prior results do not guarantee a similar outcome. Please read our full disclaimer

Wednesday, April 28, 2021

Court Interprets "Probable or Imminent" Litigation Exception in OMA

We don't see a lot of cases that deal with the Open Meetings Act, and very few have addressed the "probable or imminent" exception that allows a public body to go into closed session to discuss threats of litigation. This week, the Illinois Appellate Court issued a decision interpreting that exception and finding against a public body in its use of that exception. The case is worth a read because it goes into considerable detail about the probable or imminent exception and takes a different view or interpretation of that exception than the Public Access Counselor has in recent PAC opinions. City of Bloomington v. Raoul.

The case involved a dispute between two municipalities, one of which was threatening to terminate an agreement between the two towns. One of the municipality's city councils went into closed session to discuss various issues and strategies relating to the other municipality's communications about the agreement. After the meeting, a request for review was filed with the PAC alleging the closed session violated the OMA. The PAC issued a binding opinion that the council did violate the OMA because (1)  the probable and imminent litigation exception did not apply to this discussion and (2) the council exceed the scope of the exception. The town appealed, and the circuit court reversed.

The case made its way to the Appellate Court which reversed the circuit court and upheld the PAC's opinion. The court did question the PAC's reliance on its own PAC opinions and court cases to support its opinion, finding that analysis to be unnecessary since the language in the OMA was, in the court's view, unambiguous. The court disagreed with the public body's position that litigation was imminent finding that this position ran counter to the statements made by various individuals in the closed session that there was “no clear cut road” to litigation, that possible litigation was a “minor issue,” that the other town's threat of a lawsuit could be a “negotiating tactic,” and one member expressed doubt that a lawsuit would be filed. The court concluded that because the "gist of the City Council’s discussion described elsewhere herein was not of a group that thought litigation was probable or imminent," the council improperly went into closed session. The Appellate Court also held that even if the council had properly gone into closed session, much of the discussion that took place in closed session was outside the scope of the "imminent or probable" litigation exception.

This case is a reminder to public bodies to make sure that they (1) have a legitimate and justifiable basis to go into closed session to discuss probable or imminent litigation and (2) focus their discussion in closed session on the type of topics the court said are appropriate for this exception, such as the "discussion of legal theories, defenses, claims, or possible approaches to litigation."

Monday, April 26, 2021

PAC Again Wades Into First Amendment Territory in Public Comment Challenge

The PAC recently received requests for review from members of the public alleging that the public body improperly imposed content-based restrictions in remote meetings to interrupt and mute public comments made by speakers criticizing named public body officials and employees. In response, the public body argued the speakers were properly muted for abusive personal attacks against named city officials and employees in violation of the public body's public comment rules.

In March 2021, the PAC issued a non-binding opinion concluding that the public body violated the section 2.06(g) of the OMA by impermissibly restricting members of the public from addressing a public body during two remote meetings. The PAC acknowledged that public bodies have the authority to conduct public meetings in an efficient and orderly manner, and may adopt reasonable time, place and manner rules to maintain order and decorum. However, the PAC cautioned that content-based restrictions must be narrowly construed, and public comments pertaining to matters of public concern are protected by the first amendment even if the speaker’s “motive in commenting...could be an insensitive, mean spirited, personal attack.” Further, the PAC highlighted that section 2.06(g) does not permit a public body to apply public comment rules that are susceptible to overbroad and arbitrary application to comments that do not actually disrupt public meetings.

After reviewing the verbatim recordings for both meetings, the PAC indicated that comments made by the speakers were delivered in a calm manner, did not contain violate or profane language, and did not create a disturbance or otherwise interfere with the efficiency of the meeting. As a result, the PAC found no evidence that it was necessary to mute either speaker to maintain decorum. Further, the PAC highlighted that the comments about the manner in which public officials and employees perform their public duties is protected by the First Amendment, so “when criticism involves conduct of present or former public officials in the performance of their public duties, significant latitude must be allowed.” The PAC clarified that a rule prohibiting abusive comments can be applied permissibly to regulate the manner of speech in a content-neutral way. However, in this case, the PAC concluded that the public body violated the OMA by impermissibly applying its public comment rule prohibiting “abusive language” to mute and interrupt the speakers, where the PAC determined the speakers spoke in a calm manner that did not disrupt the meetings, because of the content of the comments criticizing named public officials and employees for the manner in which that employee performed their public duties.

In this non-binding opinion, the PAC once again waded into First Amendment territory, acting as a court in opining on the nature of content-based restrictions and manner of speech. As we have noted on this blog in the past, the PAC's jurisdiction and authority over the Open Meetings Act is established by state statute. We have found no provision of OMA that provides the PAC with any authority over constitutional issues. Nevertheless, the PAC has, on more than one occasion, interpreted the OMA to give it authority to issue opinions that rely, at least in  part, on its interpretation and application of the First Amendment. The PAC could have relied solely on its interpretation of the public body's rules on decorum to issue this opinion but instead chose to address the First Amendment. Since this was a non-binding opinion, there may be little the public body can do to challenge the PAC's broad interpretation of its own statutory authority.

Post Authored by Eugene Bolotnikov & Julie Tappendorf, Ancel Glink

Friday, April 16, 2021

Public Body Could Not Withhold Entire Action Plan Under FOIA

In 2018, Lucy Parsons Labs (LPL) submitted a FOIA request to the City of Chicago Mayor’s Office  seeking a copy of the City’s 150 page “action plan” regarding the City’s public response to the verdict in the highly publicized murder trial of a former CPD officer. The City denied the entire action plan, citing FOIA exemption 7(1)(v), which exempts:

“[v]ulnerability assessments, security measures, and response policies or plans that are designed to identify, prevent, or respond to potential attacks upon a community’s population or systems, facilities, or installations, the destruction or contamination of which would constitute a clear and present danger to the health or safety of the community, but only to the extent that disclosure could reasonably be expected to jeopardize the effectiveness of the measures or the safety of the personnel who implement them or the public. 5 ILCS 140/7(1)(v). 

In its denial, the City argued that the entire action plan was “designed to respond to a potential attack upon the community’s population, including but not limited to details regarding the deployment of specialized resources, call numbers, critical staff positioning and procedures for the handling and preparedness for operations and emergency procedures.” The LPL filed a lawsuit asking the court to order the City to release non-exempt portions of the action plan. The circuit court ruled in the City's favor finding the entire action plan to be exempt from disclosure under FOIA exemption 7(1)(v). LPL appealed. 

In Lucy Parsons Labs v. The City of Chicago Mayor’s Office, the appellate court ruled in favor of LPL, finding that portions of the action plan could be subject to release. Although the appellate court acknowledged that the City’s detailed affidavits were sufficient to establish that portions of the City’s action plan were properly exempt under 7(1)(v) because disclosure could reasonably be expected to jeopardize the effectiveness of the plan, since the action plan contained a mix of both exempt and non-exempt information, the City failed to show that the non-exempt portions of the action plan were properly withheld from disclosure.

Post Authored by Eugene Bolotnikov, Ancel Glink

Thursday, April 15, 2021

Bills Introduced in Illinois General Assembly to Amend Open Meetings Act

Yesterday, we reported on a number of bills introduced in the Illinois General Assembly to amend FOIA. Today, we summarize some of the bills that propose amendments to the Open Meetings Act (OMA).

HB 1765 - If approved, this would amend the OMA to prohibit law enforcement agencies from conducting background checks on speakers at meetings of public bodies except to provide security to protect public officials and others in attendance.

HB 2818 - If approved, this would expand the definition of "public body" under the OMA to include governing bodies formed by intergovernmental agreements (IGA).

HB 2819 - If approved, this would amend the OMA to require public bodies to publish or post notice 10 days in advance of changing the regular meeting dates, times, or locations.

HB 2830 - If approved, this would amend the OMA to prohibit public bodies from meeting remotely in closed session and require a physical quorum of the public body to be present for the closed session.

SB 482 - If approved, this would expand the alternative remote meeting provisions adopted during the pandemic to remove the requirement that there be a state disaster declaration in place and allow the head of the public body to find that it is not practical or prudent to conduct an in-person meeting or that it is in the best interests of the public body and its residents to hold a remote meeting.

SB 2246 - This bill is similar to SB 482.

SB 2356 - If approved, this would modify the requirement for a semi-annual review of the closed session meeting minutes to require flexibility for ad hoc committees or those that do not meet regularly.

Wednesday, April 14, 2021

Bills Introduced in the Illinois General Assembly to Amend FOIA

There has been a lot of bill activity in the Illinois General Assembly's 102nd Session. Today, we are reporting on some of the bills that, if approved, would amend the Freedom of Information Act (FOIA).

HB 2815 - If approved, this would amend FOIA to provide that all elected and appointed officials of a public body (including members of the General Assembly) are entitled to access all records of the public body, unless the records are exempt from release under sections 7 or 7.5 of FOIA, without having to file a FOIA request.

HB 2816 - If approved, this would amend FOIA to (1) expand the definition of public body to include the governing bodies of IGAs between public bodies and (2) require the State Police to furnish LEADS information to a requester relating to the requester and disclose all queries made in LEADS about the requester.

HB 3624 - If approved, this would amend FOIA to exempt General Assembly members from the definition of "recurrent requester." It would also require public bodies to provide a detailed index or log of every document withhold from release with a description of the applicable exemption. Further, it would require a public body to place $7500 in an escrow account for every FOIA request denied by the public body, which a requester would be entitled to the money if the public body is determined to have violated FOIA in denying the request. The bill would also modify the preliminary/draft document exemption to exclude records prepared for an executive report.

HB 3737 - If approved, this would amend FOIA to expand the definition of "public body" to include member-based organizations that lobby for their government body members and would also provide that records of the member-based organization that pertain to the receipt of member funds or expenditure of those funds are subject to FOIA.

HB 4005 - If approved, this would amend FIOA to require a public body to provide records in the format requested by the requester.

SB 526 - If approved, this would amend FOIA to exempt from FOIA records pertaining to a murder investigation conducted within the past 80 years unless the act is alleged to have been committed by a law enforcement officer.

SB 2427 - If approved, this would amend FOIA to expand the definition of "public body" to include any non-profit agency that contracts with the Metropolitan Pier and Exposition Authority to manage State-owned property or provide goods or services to the Authority.

Friday, April 9, 2021

Court Finds Injunction Relieved Public Body From Releasing Records Under FOIA

In 2015, Charles Green submitted a FOIA request to the Chicago Police Department seeking all closed complaint register files (CRs) for all Chicago police officers. After CPD failed to respond to the request, Green filed a lawsuit seeking an order directing CPD to release the requested files. However, the requester's lawsuit was continued, because an injunction entered by another court prohibited CPD from releasing any CR files that were older than four years from the date of any FOIA request. That injunction was later vacated in 2016. In 2020, the circuit court ruled in favor of the requester and ordered CPD to turn over all CR files dated from 1967 to 2011. CPD appealed the decision, arguing that the circuit court improperly ordered CPD to produce CR files that were subject to an injunction at the time that they were requested and that the court erroneously rejected CPD’s claim that producing 48 years of closed CR files would be unduly burdensome. 

On appeal, the appellate court in Green v. Chicago Police Department agreed with CPD that when CPD denied Mr. Green’s FOIA request for CR records in November 2015, it was required to follow the terms of a lawful injunction that prohibited CPD from releasing the records subject to the injunction. Further, the appellate court determined that it was irrelevant whether the injunction was subsequently vacated, because at the time CPD received the FOIA request, CPD was following a lawful injunction to avoid disclosing the CR records. Because the CPD received Mr. Green’s FOIA request for responsive CR records while an injunction was in place, the court concluded that CPD did not improperly withhold the records under FOIA. 

Because the court ruled in CPD's favor on the first issue, it did not address the second argument raised by CPD - that the court should have allowed CPD to raise an unduly burdensome claim as a defense in litigation even if it had not made that claim in response to the FOIA request. Public bodies should make sure they respond within the statutory time frame even if they intend to raise an unduly burdensome claim to avoid an argument that they waived that claim if the requester files a lawsuit. 

Post Authored by Eugene Bolotnikov, Ancel Glink

Wednesday, April 7, 2021

Illinois Governor Approves Election Code Changes Regarding Mail and Curb-Side Voting

The Governor approved the first Public Act of the 102nd General Assembly last week in P.A. 102-001. This new law amends various provisions of the Election Code, including the following:

  • The State Board of Elections is authorized to release federal funds under the Help America Vote Act to local election authorities maintain secure collection sites for mail-in ballots.
  • Election authorities are authorized to establish curb-side voting during early voting and on election day.
  • Election authorities are required to accept any vote by mail ballot, including those with insufficient or no postage. 
  • Election authorities that maintain collection sites for mail-in ballots must ensure the sites are secured by locks that can only be opened by election authority personnel.
  • Election authority personnel must collect all ballots from collection sites at the close of business each day and note the day the ballot was returned. 

The new law authorizes the State Board of Elections to establish guidelines for the security of these collection sites.

Tuesday, April 6, 2021

Court Questions Claim that Review of 28,000 Records is Unduly Burdensome in FOIA Case

In 2018, a requestor submitted a FOIA request to the Chicago Board of Education seeking documents related to the requestor’s racial discrimination claims made between 1999 and 2005. After identifying approximately 28,000 pages of records that would need to be reviewed for potential exemptions, the Board asked the requestor to narrow his request, which is permitted by FOIA. When the requestor refused, the Board denied the FOIA request as unduly burdensome. The requester sued, and the circuit court ruled in favor of the Board. The requestor then appealed.  

In Greer v. Board of Education of the City of Chicago, the First District Appellate Court reversed the ruling in favor of the Board, finding that the "unduly burdensome" exemption was not grounds for summary judgment because there were issues of material fact regarding whether the requestor’s request was unduly burdensome. Since the Board had already identified records that were apparently responsive to the FOIA request, the appellate court noted that the Board would not face a great burden identifying responsive records. The appellate court also questioned the Board’s assertion that redacting exempt information would take 86 days. The appellate court also disagreed with the Board’s claim that its burden of reviewing the 28,000 records outweighed the public’s interest in the requestor’s racial discrimination claims, noting that allegations of racial discrimination by public bodies, even those pertaining to a single employee, inherently constitutes a matter of public concern in which the public has a substantial interest. 

Because there were issues of material fact that left room for doubt on the Board's claim that it would be unduly burdensome to review 28,000 records, the court reversed the circuit court's ruling and sent the case back to the circuit court, ordering the Board to examine the 28,000 responsive documents to identify those that might be exempt.

This case is concerning to public bodies on what constitutes "unduly burdensome" - if reviewing 28,000 records for applicable exemptions and redactions isn't unduly burdensome, it makes you wonder what is. Many readers know we have reported on a number of "unduly burdensome" cases and PAC opinions in the past, and this case may just be an outlier. Public bodies should make sure they provide an estimate of the number of records that would require review in the initial response to a requester asking the requester to narrow the request and estimate the manpower necessary to tackle that review - although that didn't seem to make a difference in this case, it has been relevant in other cases and PAC opinions on the "unduly burdensome" issue.

Post Authored by Eugene Bolotnikov & Julie Tappendorf, Ancel Glink

Monday, April 5, 2021

U.S. Supreme Court Finds First Amendment Case Against Trump "Moot"

Over the past few years, we have kept readers informed about cases involving elected officials and their use of social media. You may recall the case in Virginia where a court of appeals determined that a county commissioner's blocking of users from her Facebook page was a First Amendment violation. The most talked about case involving an elected official's use of social media, however, was the case filed by the Knight First Amendment Institute against then-President Trump alleging that his blocking of users who criticized him on Twitter was a violation of the First Amendment. That case made its way to the Second Circuit Court of Appeals which issued a ruling in 2019 finding then-President Trump in violation of the First Amendment. We reported on that ruling here. We also reported when then-President Trump appealed the court of appeals ruling to the U.S. Supreme Court. 

The Supreme Court just issued a ruling today sending the case back to the Second Circuit with instructions to dismiss the case as "moot." The case (now named Joseph R. Biden, Jr. v. Knight First Amendment Institute at Columbia University, et al. because of the change in administration) is a short read. The U.S. Supreme Court issued a two sentence opinion vacating the judgment of the Second Circuit and remanding it back to the court of appeals with instructions to dismiss the case as moot. Justice Thomas filed a separate concurring opinion (12 pages), arguing that although he agreed that the case should be vacated as moot because of the change in administration, he questioned whether the First Amendment applies to a platform where a private company (in this case, Twitter) has "unbridled control" of user accounts. 

What's interesting is that after the change in administration, both sides (the Department of Justice and the Knight First Amendment Institute) had argued that the U.S. Supreme Court should declare the case "moot" but for different reasons. The DOJ argued the case was moot because of the change in administration. The Knight First Amendment Institute also argued the case was moot but because Twitter had permanently banned Trump from its platform. 

Thursday, April 1, 2021

Podcast Ep. 51: Parliamentary Procedures for Newly Elected Officials

Ancel Glink has just released Episode 51 of its Quorum Forum Podcast today: "Parliamentary Procedures for Newly Elected Officials" just in time for next week's municipal elections. More information below:

Episode 51: Parliamentary Procedures for Newly Elected Officials

Newly-elected and not-so-newly elected officials are preparing for business after the local government elections. That’s why Ancel Glink’s Steve Mahrt and Eugene Bolotnikov joined the Illinois Association of County Board Members to review parliamentary procedures and other helpful tips for orderly local government meetings. 

If you prefer video to audio, you can watch the training on YouTube here.

What strategies does your organization use to promote civility at meetings? Email us at podcast@ancelglink.com!