By: Brittany Flaherty Theis
The Open Meetings Act is designed to ensure that the deliberations and actions of public bodies are conducted openly. The Open Meetings Act has provisions regarding the time, place, and notice of meetings and meeting agendas; the topics that may be discussed in closed session; minutes and recordings of meetings; and an opportunity for any person to address public officials, among others.
Last year, the Illinois General Assembly enacted amendments to the Open Meetings Act regarding the availability to Board members of the minutes of meetings closed to the public. Our office has received questions about these changes, which are addressed below. The amendments were initially discussed here.
The amendments adopted in 2016 provide that both elected and appointed officials of a public body are to be given access to minutes and verbatim recordings of meetings closed to the public. Access to the recordings and minutes is to be given in person – at the public body’s main office or official storage location – and only in the presence of select individuals. Specifically, the records secretary, an administrative official of the public body, or any elected official of the public body must be present while the closed session minutes or recordings are reviewed. The minutes of meetings closed to the public cannot be removed from those locations or copied, unless the public body votes to do so or such removal is ordered by a court. These provisions, however, do not limit the Public Access Counselor’s access to records during an administrative review.
Questions regarding the Open Meetings Act have come up when there is turnover on a board and a new board member wants access to minutes from past closed session meetings. Arguably, the amendment means that newly elected or appointed board members can access minutes from portions of meetings closed to the public prior to being elected or appointed. In such instances, the records secretary will need to arrange a time to meet that board member at the main office of the public body for the minutes to be viewed in his or her presence. During that time, the closed session minutes are not to be copied or otherwise removed from that location.
Interestingly, this means that recordings and minutes of conversations held between public officials that the public officials thought would remain only between them (unless the need for confidentiality ceased) can now be viewed by public officials elected or appointed to the public body later in time. Opinions and concerns regarding these implications vary, particularly based on the tenor of the public body. For instance, there were a number of articles published around the time these amendments were being considered in which the media discussed examples of school boards with tense relationships and heated elections. In particular, some existing school board members expressed concerns about the motives of candidates who might later request access to closed session minutes – some of whom were elected and did in fact want access to past closed session minutes. One can also envision circumstances where a new school board member might want to review the evolution of a topic through closed session minutes for difficult decisions with long-term implications. Either way, the law is now clear and provides for such access pursuant to the procedure and limitations established in the Open Meetings Act. The amendment should trigger public bodies to consider their existing practices regarding closed session minutes and recordings.
Whitt Law attorneys regularly advise public bodies regarding the requirements of the Open Meetings Act and the options for compliance available to the public body. The attorneys at Whitt Law handle questions regarding compliance with the Open Meetings Act and, at our clients’ requests, attend public meetings to ensure compliance during open and closed session meetings. For questions regarding the Open Meetings Act, please contact Whitt Law attorneys Brittany Flaherty Theis and Brian R. Bare.
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