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To FOIA/OMA, or Not to FOIA/OMA: Updates and Tips from 2012 PAC Decisions and Act Amendments

Written by Josh R. Ladwig
As published in the Califf & Harper, P.C. March 2013 Newsletter

Several enlightening decisions from the Public Access Counselor (“PAC”) and amendments to both the Freedom of Information Act (“FOIA”) and Open Meetings Act (“OMA”) give clarification, or at least warrant some discussion. The decisions of the PAC are binding and must be followed by public entities subject to FOIA and OMA. The following is a summary of the more significant PAC decisions and amendments which can be used in the decision making process of your public entity.

I. Freedom Of Information Act

A. The Recurrent Requester 50 – 15 – 7 Rule

A “recurrent requester” is a person who in 12 months preceding a request has submitted to the same public body a minimum of:

  1. 50 requests in the 12 months;
  2. 15 requests in a 30 day period; or
  3. 7 requests in a 7 day period.

Keep in mind:

  • A request containing multiple parts still only counts as 1 request;
  • Requests must be made from the same person in order to count towards the “recurrent requester” limit, i.e., the public entity cannot combine requests from the same household or related persons.
  • A review request submitted to the PAC after a public body has denied a request does not count as a separate request

B. Personal Delivery

A request for records may be submitted to a public entity by personal delivery. Accordingly, it is proper for a request to be personally delivered during a board meeting. Personal delivery is not acceptable to a board member’s personal residence or during a random encounter on the sidewalk.

C. Considering How To Respond

Stack of Files and Papers

If a requester requests copies of public records, the public entity may not in return merely offer to allow the inspection of the same records. This is a violation of Section 3(b) of FOIA.

Information contained in invoices for legal services performed for a public body are not exempt from disclosure under FOIA. This includes descriptions of the nature of the services, the billing attorney’s initials, the amount of time spent on tasks, and the rate or dollar amount charged. Any information which does fall within the attorney-client privilege must be redacted. A requester requesting documents rather than specific information is entitled to all non-exempt information included in the document. A public body cannot redact information which it believes is outside the scope of the request unless the information is otherwise exempt from production.

D. Fines and Attorney’s Fees

A public body which willfully denies a FOIA request is subject to a mandatory fine and could be subject to attorney’s fees. If a requester files a lawsuit against the public body for a willful denial of requested material which is not otherwise exempt from production, then the court must fine the public body. If the requester prevails in the lawsuit, then the requester is also entitled to attorney’s fees. The key is the requester must “prevail” which the court in Rock River Times v. Rockford Public School District 205 stated requires court ordered relief. Accordingly, if the public body turns over the requested documents on its own rather than being required to do so by the court, as the school did in this case, then the requester has not “prevailed.”

II. Open Meetings Act

A. Meetings

A meeting agenda stating the general subject matter of the meeting must be continuously available for public review during the entire 48-hour period before the meeting. If the public body has a website, then posting the agenda on the website satisfies this notice requirement. A statement of the general subject matter should include some substantive description more than merely a statutory reference.

A meeting cannot be held by a public body at a private residence. A private residence is not convenient and open as required by OMA. Additionally, a public body cannot enact a rule stating prior notice is required before a person may record the meeting.

B. Closed Session

Issues are often raised over closed session discussions. As a preliminary matter, all closed session discussions must be recorded. Closed session discussions should be narrowly tailored to the OMA exception at issue. For example, if there is a closed session discussion regarding salary schedules, the discussion should be limited to this topic without wandering to a discussion of an individual employee.

Public bodies are allowed to discuss in closed session pending litigation, or litigation which is probable or imminent. In order to be considered probable or imminent, litigation cannot be a distant possibility but must be a real threat by a possible claimant or plaintiff. As a best practice when litigation is probable or imminent, the board should state in open session that the board will be discussing probably or imminent litigation. Then in closed session, the board should state the basis for why the litigation is probably or imminent. Finally, when returning from closed session, the board should take some action to indicate what occurred in closed session such as a resolution.

For more information on this topic please contact Califf & Harper, P.C. by calling 309-764-8300 or 1-888-764-4999. This article is intended to provide general information regarding the topic discussed herein but is not intended to constitute individual legal advice.