Local Government: Many Changes in the Open Meetings and Freedom of Information Acts for 2012
January 9, 2012
Victor P. "Vic" Filippini- Chicago
Benjamin L. "Ben" Schuster- Chicago
Open government was a matter of continuing concern in 2011 for the Illinois General Assembly, which amended the Open Meetings Act (OMA), 5 ILCS 120/1, et seq., and the Freedom of Information Act (FOIA), 5 ILCS 140/1, et seq., no fewer than nine times. This alert discusses the two amendments that took effect on January 1, 2012, and also provides a brief summary of the other amendments to the OMA and FOIA that went into effect during 2011.
Amendments That Went Into Effect on January 1, 2012
- New OMA training requirements for all elected and appointed members of public bodies that are subject to the OMA
Public Act 97-504 amended the OMA to require every elected or appointed official of a public body that is subject to the OMA and that was elected or appointed prior to January 1, 2012, to successfully complete the electronic OMA training offered by the Illinois Attorney General’s Public Access Counselor prior to January 1, 2013. Once complete, the elected or appointed official must file a copy of the certificate of completion with the public body.
Every elected or appointed official of a public body that is subject to the OMA and that is elected or appointed after January 1, 2012, must successfully complete the electronic OMA training within 90 days of taking the oath of office or assuming the responsibilities of their office.
If you need to complete the OMA training, access the following link to register with the Public Access Counselor and to take the requisite training:
https://foia.ilattorneygeneral.net/CreateAccount.aspx
- New requirements to post information about employee compensation packages
Beginning on January 1, 2012, and pursuant to Public Act 97-609, Illinois Municipal Retirement Fund (IMRF) employers must post notice of any employee’s “total compensation package” at least six days in advance of its approval whenever that package would provide for a total yearly compensation of $150,000 or more. The “total compensation package” includes all payments of salary, health insurance, housing allowance, vehicle allowance, clothing allowance, bonuses, loans, and vacation and sick days granted.
In addition, Section 7.3(a) of the OMA requires each IMRF employer, within six days after approving its annual budget, to post notice of the total compensation package of any employee whose total yearly compensation exceeds $75,000.
The notices may be posted on the employer’s website or at its principal office. If the employer has a website, but chooses to post the notices at its office, the website must have directions on how to access the information.
Other OMA and FOIA Amendments That Were Passed in 2011
- OMA - Grounds for Executive Session
Public Act 97-318 amended the OMA to allow public bodies to hold closed meetings between internal and external auditors and governmental audit committees, finance committees and their equivalents, when the discussion involves internal control weaknesses, identification of potential fraud risk areas, known or suspected frauds, and fraud interviews conducted in accordance with generally accepted auditing standards.
Public Act 97-452 amended the OMA to allow public bodies to hold closed meetings to consider correspondence and records that are prohibited from disclosure pursuant to Section 11-9 of the Public Aid Code or that pertain to appeals under Section 11-8 of the Public Aid Code. The Public Aid Code generally prohibits the release of correspondence and records relating to individual applicants and recipients of public aid.
Public Act 97-579 amended FOIA to eliminate the need to submit pre-denial requests to the Public Access Counselor (PAC) before withholding a record or redacting information from a record pursuant to Section 7(1)(c) or 7(1)(f) of FOIA. Consequently, public bodies do not need approval from the PAC to withhold “personal information” or preliminary drafts, notes, recommendations, memoranda and other records in which opinions are expressed, or policies or actions are formulated, except when a specific record or relevant portion of a record is publicly cited and identified by the head of the public body. Requesters can still appeal any denial of information on these grounds.
Public Act 97-579 also amended FOIA to regulate activities of “recurrent requesters.” A “recurrent requester” is now defined as a person who submits to the same public body: (i) 50 or more requests in a 12-month period; (ii) 15 or more requests in a 30-day period; or (iii) seven or more requests in a seven-day period. If a requester satisfies the definition of a “recurrent requester,” the public body can inform the requester it is treating it as a “recurrent requester” and extend the time it has to respond to the request. The news media, nonprofit, scientific, or academic organizations are not subject to the new “recurrent requester” provisions.
Public Act 97-579 also amended FOIA to allow public bodies to recover some of the costs incurred when responding to commercial requests. Public bodies can now charge commercial requesters $10 per hour after the first eight hours of personnel time spent in responding to a commercial request.
Public Act 97-385 amended FOIA to allow public bodies to withhold the names, addresses, or other personal information of (a) minors who are participants and registrants in any programs of a park district, forest preserve district, conservation district, recreational agency, or special recreation association; and (b) any participants and registrants in such programs when they are primarily targeted to minors.
Public Act 97-452 amended Section 7.1 of FOIA to exempt from disclosure correspondence and records that are prohibited from disclosure pursuant to Section 11-9 of the Public Aid Code or that pertain to appeals under Section 11-8 of the Public Aid Code.
Public Act 97-80 amended FOIA to allow public bodies to withhold the names and “information” of people who have applied for or received a firearm owner’s identification card under the Firearm Owners Identification Act. This amendment does not elaborate on what “information” is exempt.
Public Act 97-342 amended FOIA to exempt from disclosure personally identifiable information that is also exempt from disclosure under subsection (g) of Section 19.1 of the Toll Highway Act. This applies to information such as travel pattern data, addresses, telephone numbers, email addresses, license plate numbers, bank account information, or credit card numbers of toll users.
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