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