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PARKS & RECREATION BOARD 2013/12/17 Packet PARKS AND RECREATION BOARD COMMITTEE OF THE WHOLE MEETING TUESDAY, DECEMBER 17, 2013 6:30PM at MUNICIPAL SERVICES LAKE FOREST, ILLINOIS AGENDA I. CALL TO ORDER & ROLL CALL Curt Volkmann, Chairman David Brush Steve Hill Dan Jasica Charlie Kohlmeyer Lauren Turelli Paul “Skoo” Walker Wil Dixon, Student Member II. SUCCESSFUL MEETING PROTOCALS—Presented by Anne Whipple, President, Whipple Communications Consultants* III. OPEN MEETINGS ACT AND FREEDOM OF INFORMATION TRAINING—Presented by Victor Filippini, Partner, Holland & Knight IV. 2014 SPOTLIGHTS DISCUSSION V. CAPITAL IMPROVEMENT PLAN-RECAP OF CITY COUNCIL FINANCE COMMITTEE MEETING OF DECEMBER 12, 2013* VI. DIRECTORS REPORT VII. COMMENTS BY BOARD MEMBERS VIII. ADJOURNMENT *No information in packet. Materials will be distributed at the meeting. The City of Lake Forest Parks and Recreation Board Meeting Minutes November 19, 2013 I. Call to Order The Parks and Recreation Board Meeting were called to order by Acting Chairman Steve Hill at 6:30p.m. The following were present: Board Members: Mr. David Brush Mr. Steve Hill, Acting Chairman Mr. Dan Jasica Mr. Charlie Kohlmeyer Ms. Lauren Turelli Mr. Skoo Walker Mr. Wil Dixon, Student Board Member Staff: Ms. Mary Van Arsdale, Director of Parks and Recreation Mr. Chuck Myers, Superintendent of Parks, Forestry & Cemetery Ms. Sally Swarthout, Superintendent of Recreation Mr. Rich Paulsen, Parks Supervisor Mr. Anthony Anaszewicz, Athletics Program Manager Ms. Tricia Schwall, Administrative Assistant Special Guests: Mr. John Sentell, President, Lake Forest Open Lands Association II. Approval of Minutes The meeting minutes of the September 17, 2013 Park & Recreation Board meeting were presented. Board Member Jasica moved for approval of the minutes and Board Member Brush seconded. The Board meeting minutes of the September 17, 2013 meeting were then unanimously approved. The meeting minutes of the October 15, 2013 Committee of the Whole Park & Recreation Board meeting were presented. Board Member Jasica moved for approval of the minutes and Board Member Kohlmeyer seconded. The Board meeting minutes of the October 15, 2013 meeting were then unanimously approved. III. Opportunities for the Public to Address the Board on Items not Listed on the Agenda There were no comments. IV. Spotlight: Lake Forest Open Lands Association Mr. John Sentell, President of Lake Forest Open Lands Association (LFOLA) gave a presentation on Lake Forest Open Lands Association history, mission, role in conservation and the community and the ongoing partnership with the City. He shared that they have 840 acres of land that has been preserved and that they are the first and only nationally accredited land trust from Illinois. There are 7 nature preserves with over 12 miles of walking trails. Mr. Sentell spoke about the resolution that was passed in May of 2002, by the City regarding the preservation of open land. He also shared how LFOLA has acquired their land including purchasing outright, donations, and many other methods. There are several different events and educational opportunities that are presented by LFOLA. Additionally, LFOLA works closely with the City on many endeavors including the Environmental Collaborative, Native Tree Sale, Joint Work Days and many others. Mr. Sentell also talked about the 20 year lease that LFOLA has with the City. V. Report on Park Grants Superintendent Myers gave an update current grant funding opportunities that the City is involved with. The Lake Forest Ravine Education & Outreach Program which is focused on ravine education, outreach & restoration for the Seminary/McCormick Ravines which was awarded in October 2013. An application was submitted in July 2013 for the Lake Forest Cemetery Ravine Restoration Plan which is focused on ravine restoration & stabilization for the Cemetery Ravine. The Ft. Sheridan Ravine & Coastal Restoration Grant is a huge project that has been going on for about 5 years. The City’s part of this grant is the ravine restoration & stabilization for McCormick Ravine. The grant has not been submitted at this time. The Improving Habitat & Access to North Branch Chicago River Grant focuses on invasive plant removal, reseeding and improving access to Meadowood and Elawa parks. This grant application was submitted in September 2013. An application was also submitted in October 2013 for Reconnecting Urban Forests: Oak Woodland Restoration Near Lake Michigan Grant in October 2013. This grant is for the planting of 75 oak trees at McClory Bike Path & McCormick. Finally, the Robert McClory Bike Path Grant focuses on improvements to the bike path between Illinois Rd. & Woodland Shelter. The application for this grant was submitted in February 2013. A short conversation followed regarding the Bike Path grant and the volume of time necessary for staff to prepare, implement and provide required tracking reports. Staff indicated that the need for some additional contractual or a staff position is being discussed to better support grant efforts. VI. Approval of FY ’15 Capital Improvement Projects Director Van Arsdale gave an explanation on why this topic was being tabled that evening and there would be no approval sought that evening. City Council will be taking a closer look at the Capital Improvement Projects at an upcoming special workshop before any further action is taken. VII. Approval of Athletic Field Program Use Fees Program Manager Anaszewicz gave a brief history of the Athletic Field Use Policy and proposed a 5% increase across the board. He explained the different groups that use the various fields around the City and how often the fields are used. He informed the board that in 2007 it was approved to increase the fees every year by 5% but because of the new Sports Field Improvement Fund (SFIF) implementation staff held off on imposing the annual field maintenance fee increases. He explained that the field maintenance fees are fees charged to recoup direct expense for City crews to prepare the fields for weekly use whereas the SFIF is a per participant charge that both in-house and outside organizations pay to provide for minor asset and turf improvements. A discussion followed regarding the two different fee programs. Board Member Turelli asked what was causing the costs to go up. Mr. Anaszewicz replied that the primary reasons are increasing staff costs and material supplies. Board Member Walker was concerned we were not charging enough to these outside agencies for field maintenance. Director Van Arsdale reiterated that the Sports Field Improvement Fund was put into place to help pay for minor asset replacements so that between the two programs she felt the City is appropriately funding both maintenance and improvements. Several board members questioned why the 5% increase in the fees every year was established in the past and if this needed to be the same for future years. Director Van Arsdale suggested an alternative wording that would give flexibility by approving an up to 5% increase every year and if the increase was going to exceed that 5% the increase would then come back to the board for discussion and approval. Board Member Brush felt the name of the policy was confusing and did not accurately describe what the fees covered. Board Member Walker suggested that the name of this policy be changed to Athletic Field Prep Fee Policy. Mr. Anaszewicz asked if the board thought there should be a separate policy written to charge a usage fee for teams or organizations that are not resident based (outside Lake Forest organizations). A conversation followed and it was agreed to hold off on incorporating this option at this time. Requested Action: Approval to raise the Athletic Field Usage fees by 5% for FY ’15, establishing an approval annual range of 3-5% increase. A motion was made to approve increases for FY ‘15 and beyond up to 5% driven by cost increases at cost increase percentages. Anything beyond 5% must come back to the board for approval. Also, that the name of the fees be changed from Athletic Field Usage fees to Athletic Field Prep fees. The motion was seconded but was withdrawn to pursue further discussion of the fees. Board Member Jasica raised a concern that if the fees for our in-house programs go up every year that the outside users fees should go up every year also. A discussion followed whether board approval should be needed for any fee change that is not at least 3%. An amended motion was then made by Board Member Jasica to approve a 5% increase for FY ‘15 and thereafter establishing an approval annual range of 3-5% increase. Anything below 3% or above 5% must come back to the board for approval. Also, that the name of the fees be changed from Athletic Field Usage fees to Athletic Field Prep fees. The motion was seconded by Board Member Walker. The motion passed. Director Van Arsdale shared that staff would make the identified revisions to the policy/fees and send them to the board to make sure that all the changes that have been discussed are incorporated into the new policy. Board Member Jasica asked that something be done to help Lake Forest parents of players understand that this fee is not a usage fee it is a field prep maintenance fee. Director Van Arsdale said staff would look into how to make parents more aware. VIII. West Park Ice Rink Information Parks Supervisor Paulsen provided the board with a report on the outdoor ice rink at West Park. He gave some history of the ice rink, how the rink is constructed and ice is made and some of the challenges his group faces regarding the rink. IX. Director’s Report A. Rec Software Replacement Project-Status of Project Update B. High School Sailing Team won the Great Lakes High School Sailing Championship C. Northwestern Lake Forest Hospital Holiday Boutique at Rec Center Nov. 21-24th D. Stirling Hall Art Sale is set for December 6-9th E. Dance Academy "Extrava-Dance-A" is December 15th F. Kinderhaven Open House was held G. Pro-Shop Sales @ Golf Course underway H. Fitness Center holiday hours will be posted on website X. Comments by Board Members Board Member Turelli asked Director Van Arsdale about the fundraising efforts for the Washington Tornado residents. Director Van Arsdale shared the details of the efforts. XI. Adjournment Board Member Brush moved to adjourn the meeting. Board Member Jasica seconded. The meeting was adjourned at 8:30 p.m. Respectfully Submitted Tricia Schwall Administrative Assistant ©2013 Holland & Knight LLP - 1 - HOLLAND & KNIGHT LLP 12th Biennial Seminar for Local Government Officials April 26, 2013 The Freedom of Information Act and the Open Meetings Act Part I. Freedom of Information Act Part II. Open Meetings Act Appendix A. Appropriate Closed Session Topics _______________________ I. Freedom of Information Act (“FOIA”) A. Overview of the FOIA. The Illinois Freedom of Information Act, 5 ILCS 140/1 et seq., generally requires that public records be made available to the public for inspection and copying. There are exceptions to the general rule that allow a unit of government to deny the public access to certain types of records. The Freedom of Information Act has been amended numerous times since its adoption. 1. Purpose. To promote transparency and accountability of public bodies by making public records open and accessible to the public. The purpose of the FOIA is limited to ensuring the disclosure of public records. The FOIA does not protect public records or the information contained therein from disclosure. Roehrborn v. Lambert, 660 N.E.2d 180, 183 (1st Dist. 1995) (holding that a police chief could not be held liable under the FOIA for disclosing information relating to the performance of a probationary officer on psychological and polygraph tests). 2. Presumption and Burden. All public records are presumed to be open to inspection and copying by the public. A public body has the burden of proving that a record should not be disclosed “by clear and convincing evidence.” 5 ILCS 140/1.2. 3. Applicability. Public bodies that must comply with the FOIA include all legislative, executive, administrative or advisory bodies of the state of Illinois, state universities and colleges, counties, townships, cities, villages, incorporated towns, school districts and all other municipal corporations, ©2013 Holland & Knight LLP - 2 - boards, bureaus, committees and commissions, and any subsidiary bodies thereof. 5 ILCS 140/2(a). 4. Public Access Counselor. Public Act 96-542 made the Public Access Counselor (“PAC”) a permanent position in the Illinois Attorney General’s Office, and empowered the PAC to resolve disputes involving the FOIA and the Open Meetings Act. B. Public Records. 1. Definition. Public records include all materials: (a) prepared by or for, used by, received by, in the possession of, or under the control of, a public body; (b) pertaining to the transaction of public business; (c) regardless of physical or electronic form or characteristics. 5 ILCS 140/2(c). Public records that (i) are in the possession of a person with whom the public body has contracted to perform a governmental functional on behalf of the public body and (ii) pertain to that governmental function are considered public records of the public body. 5 ILCS 140/7(2). Public records may also include electronic records that relate to the transaction of public business and are in the possession of public officials even though the records are generated and stored on officials’ personal electronic equipment and maintained on their personal accounts (e.g. text messages stored on private phones and emails sent from private accounts). Public Access Opinion No. 11-006 - City of Champaign (this Public Access Opinion is currently subject of an appeal in the appellate court). 2. Records Required to be Disclosed. The following records are public records and generally must be disclosed pursuant to a validly submitted request unless covered in whole or in part by a valid exemption. (a) Required Records. The FOIA does not generally require public bodies to create any new records in response to a FOIA request. However, the FOIA does obligate public bodies to create and make available to the public the following records: (i) a brief description of the public body, including its purpose, a block diagram showing its functional subdivisions, its total operating budget, the number and location of its offices, the ©2013 Holland & Knight LLP - 3 - approximate number of full and part-time employees, and the identification and membership of each of its boards, commissions, committees or councils. 5 ILCS 140/4(a); (ii) a brief description of the procedures for requesting public records, the names of the public body’s FOIA Officers, the address where requests should be sent to and a listing of the fees for the same. 5 ILCS 140/4(b); and (iii) a “reasonably detailed” and “reasonably current” listing of all types or categories of records under its control that have been prepared or received subsequent to July 1, 1984 (the original effective date of the Freedom of Information Act). 5 ILCS 140/5. The first and second items above must be (1) displayed prominently at each of the public body’s administrative or regional offices, (2) made available for inspection and copying, and (3) distributed by mail upon request. The third item above must be made available for inspection and copying. (b) Records Pertaining to Public Funds. All records relating the obligation, receipt and use of public funds must be disclosed. 5 ILCS 140/2.5. (c) Certified Payrolls. Certified payrolls submitted to a public body under the Illinois Prevailing Wage Act must be disclosed with the exception of employees addresses, telephone numbers and social security numbers, which may be redacted. 5 ILCS 140/2.10. (d) Arrest Reports and Criminal History Records. The following law enforcement records must be disclosed unless disclosure will interfere with an ongoing or reasonable contemplated investigation, endanger the physical safety of any person, or compromise the security of a correctional facility: (i) arrest reports including specific information regarding the arrested person and charges (must be released within 72 hours of an arrest); and (ii) criminal history records including public court records and records involving requester. 5 ILCS 140/2.15. The details of an arrest report required to be disclosed under Section 2.15 do not constitute exempt private information under Section 7(1)(d). Public Access Opinion No. 11-001 - Chicago Police Department. However, these records may be subject to ©2013 Holland & Knight LLP - 4 - redaction based on other exemptions, including the Juvenile Court Act of 1987 (705 ILCS 405/1-1 et seq.). (e) Settlement Agreements. All settlement agreements entered into by or on behalf of public body must be disclosed. 5 ILCS 140/2.20 A public body may not avoid disclosing the contents of a settlement agreement by claiming that the public body authorized another entity (e.g. an insurance carrier) to enter into an agreement on the public body’s behalf and therefore the public body never possessed the settlement agreement. Public Access Opinion No. 10-004 - Village of McCook. C. Exempt Records The FOIA divides exempt records between records that are exempt under the FOIA itself (5 ILCS 140/7) and records that are exempt under the requirements of other statutes (5 ILCS 140/7(1)(a) & 7.5). This division is not always clear as some statutory exemptions are included in Section 7. Below is a listing of many of the exemptions that may be claimed by a public body. 1. General Exemptions. (a) Disclosure Prohibited by Various Laws. Information expressly prohibited from disclosure by federal or state law or rules or regulations adopted under federal or state law. 5 ILCS 140/7(1)(a). Statutes other than the FOIA that prohibit the release of certain types on information and commonly apply to FOIA requests include: (i) the Juvenile Court Act of 1987 (705 ILCS 405/1-1 et seq.) (generally exempts law enforcement records that include information about minors who are arrested or suspects of a crime); (ii) the Abused and Neglected Child Reporting Act (305 ILCS 5/1, et seq.) (generally exempts information identifying minors who are victims of certain types of sexual and child abuse); (iii) the Privacy of Child Victims of Criminal Sexual Offenses Act (725 ILCS 190/1, et seq.) (generally exempts information identifying minors who are victims of sexual offenses); and (iv) the Health Insurance Portability and Accountability Act of 1996 (HIPAA) (42 U.S.C. § 1320d-9 (2010) & 42 CFR Part 2. §164.501 et seq.) [generally protects a person’s medical information if the public body provided the person medical care (e.g. medical care provided by a public body’s paramedics). ©2013 Holland & Knight LLP - 5 - (b) Private Information. The FOIA defines “private information” as “unique identifiers, including a person’s social security number, driver’s license number, employee identification number, biometric identifiers, personal financial information, passwords or other access codes, medical records, home or personal telephone numbers, and personal email addresses” and also includes home addresses and personal license plates if disclosure would allow their attribution to specific persons. 5 ILCS 140/7(1)(b). The PAC has advised that it considers zip codes to be private information if the corresponding name of a person has already been disclosed. (c) Personal Information. Personal Information, the disclosure of which would constitute an unwarranted invasion of personal privacy, unless the disclosure is consented to in writing by the individual who is the subject of the information. The disclosure of information that relates to the public duties of public employees and officials is not considered an invasion of privacy, even if the information is of a sensitive nature. 5 ILCS 140/7(1)(c). (d) Internal Matters/Administration. (i) Preliminary drafts, notes, recommendations and memoranda in which “opinions are expressed” or “policies or actions are formulated.” A public body may not assert this exemption for a document that has been publicly cited and identified by the head of the public body. 5 ILCS 140/7(1)(f). (ii) Minutes of closed meetings, until such minutes are made publicly available under the Open Meetings Act. 5 ILCS 140/7(1)(l). (iii) Communications between a public body and an attorney or auditor representing the public body that would not be subject to discovery in litigation. 5 ILCS 140/7(1)(m). (iv) Records relating to adjudication of employee grievances and disciplinary cases, but not including the final outcome of a case in which discipline is imposed. 5 ILCS 140/7(1)(n). (v) Documents or materials relating to collective negotiating matters between public bodies and their employees or representatives (except final contracts or agreements). 5 ILCS 140/7(1)(p). (vi) Records, documents, and information relating to real estate purchase negotiations (unless completed or otherwise terminated) and pending or contemplated eminent domain ©2013 Holland & Knight LLP - 6 - proceedings (except as permitted by the Illinois Supreme Court rules). 5 ILCS 140/7(1)(r). (vii) Any and all proprietary information and records relating to the operation of an intergovernmental risk management association or self-insurance pool or jointly administered health and accident cooperative or pool. 5 ILCS 140/7(1)(s). (viii) Test questions, scoring keys, and other examination data relating to academic exams or used to determine qualification for a license or employment. 5 ILCS 140/7(1)(q). (ix) Vulnerability assessments, security measures and response policies or plans created for protection of community’s population or systems, facilities or installations to the extend disclosure would jeopardize effectiveness of such measures. 5 ILCS 140/7(1)(v). (e) Law Enforcement. (i) Administrative or law enforcement records, but only those records that would: • interfere with pending or reasonably contemplated law enforcement proceedings by public body that received request; • interfere with active administrative proceeding by public body that received request; • create substantial likelihood a person would be deprived of a fair trial or impartial hearing; • unavoidably disclose identity of confidential source, persons who file complaints or persons who provide information to administrative, investigative, law enforcement or penal agencies with the exception of witnesses to traffic accidents and traffic accident reports; • disclose unique or specialized investigative techniques; • endanger the life or physical safety of any person; or ©2013 Holland & Knight LLP - 7 - • obstruct an ongoing criminal investigation by public body that received request. 5 ILCS 140/7(1)(d). (ii) Records of law enforcement agencies providing information to other law enforcement agencies regarding the physical or mental condition of persons. 5 ILCS 140/7(1)(b-5). (iii) Records relating to security of correctional institutions and detention facilities. 5 ILCS 140/7(1)(e). (f) Business. (i) Trade secrets and commercial and financial information obtained from a person or business where the trade secrets or information are proprietary, privileged, or confidential, or where disclosure may cause competitive harm. 5 ILCS 140/7(1)(g). (ii) Proposals and bids for any contract, grant, or agreement, until an award is made. 5 ILCS 140/7(1)(h). (iii) Valuable formulae, designs, drawings, and research data obtained or produced by any public body where disclosure could reasonably be expected to produce private gain or public loss. 5 ILCS 140/7(1)(i). (iv) Architects’ plans and engineers’ technical submissions for projects not entirely funded by public funds, and for projects funded entirely by public funds for which disclosure would jeopardize security. 5 ILCS 140/7(1)(k). (v) Administrative or technical information relating to automated data processing operations. 5 ILCS 140/7(1)(o). (vi) Operating or condition reports prepared by, on behalf of, or for the use of a public body responsible for the regulation or supervision of financial institutions or insurance companies (unless disclosure is otherwise required by state law). 5 ILCS 140/7(1)(t). (vii) Information used to create electronic or digital signatures under the Electronic Commerce Security Act. 5 ILCS 140/7(1)(t). ©2013 Holland & Knight LLP - 8 - (viii) Maps and records of utility generation, transmission, distribution, storage, gathering, treatment or switching facilities. 5 ILCS 140/7(1)(x). (ix) Information relating to proposals, bids or negotiations for electric power procurement determined to be confidential and proprietary by the Illinois Power Agency or Illinois Commerce Commission. 5 ILCS 140/7(1)(y). (g) Education. (i) Information received by a primary or secondary school, college, or university under its procedures for the evaluation of faculty. 5 ILCS 140/7(1)(j). (ii) Information concerning a university’s adjudication of student or employee grievance or disciplinary cases, to the extent that disclosure would reveal the identity of the student or employee involved. 5 ILCS 140/7(1)(j). (iii) Course material used by faculty members. 5 ILCS 140/7(1)(j). (iv) Information about students barred from disclosure by the School Code and the Illinois Credit Card Marketing Act of 2009. 5 ILCS 140/7(1)(z). (h) Miscellaneous Statutory Exemptions. (i) Information exempted under the Viatical Settlements Act of 2009. 5 ILCS 140/7(1)(aa). (ii) Information concerning burials submitted to the Cemetery Oversight Database under the Cemetery Care Act. 5 ILCS 140/7(1)(bb). (iii) Confidential information under the Technology Advancement and Development Act. 5 ILCS 140/7.5(a). (iv) Library circulation and order records under the Library Records Confidentiality Act. 5 ILCS 140/7.5(b). (v) Records received or prepared by the Experimental Organ Transplantation Procedures Board. 5 ILCS 140/7.5(c). (vi) Records held by the Department of Public Health relating to cases of sexually transmissible disease under the Illinois Sexually Transmissible Disease Control Act. 5 ILCS 140/7.5(d). ©2013 Holland & Knight LLP - 9 - (vii) Exempt information under the Radon Industry Licensing Act. 5 ILCS 140/7.5(e). (viii) Firm performance evaluations under the Architectural, Engineering, and Land Surveying Qualifications Based Selection Act. 5 ILCS 140/7.5(f). (ix) Restricted and exempted information under the Illinois Prepaid Tuition Act. 5 ILCS 140/7.5(g). (x) Exempted information under the State Officials and Employees Ethics Act, and records of any inspector general’s office that would be exempt if created or obtained under that Act. 5 ILCS 140/7.5(h). (xi) Information submitted to a municipality in accordance with a local emergency energy plan ordinance adopted under Section 11-21.5-5 of the Illinois Municipal Code. 5 ILCS 140/7.5(i). (xii) Information and data concerning the distribution of surcharge moneys collected and remitted by wireless carriers under the Wireless Emergency Telephone Safety Act. 5 ILCS 140/7.5(j). (xiii) Law enforcement officer identification information or driver identification information compiled by a law enforcement agency or the Department of Transportation under Section 11-212 of the Illinois Vehicle Code. 5 ILCS 140/7.5(k). (xiv) Records provided to resident sexual assault and death review team or the Executive Council under the Abuse Prevention Review Team Act. 5 ILCS 140/7.5(l). (xv) Information provided to the predatory lending database under the Residential Real Property Disclosure Act. 5 ILCS 140/7.5(m). (xvi) Defense budgets for court appointed trial counsel under the Capital Crimes Litigation Act until the conclusion of the trial of the case. 5 ILCS 140/7.5(n). (xvii) Restricted information under the Illinois Health and Hazardous Substances Registry Act. 5 ILCS 140/7.5(o). (xviii) System safety program plans, investigation reports, surveys, schedules, lists, data, or information compiled, collected, or prepared by or for the Regional Transportation Authority under the Regional Transportation Authority Act or the St. ©2013 Holland & Knight LLP - 10 - Clair County Transit District under the Bi-State Transit Safety Act. 5 ILCS 140/7.5(p). (xix) Information prohibited from being disclosed by the Personnel Records Review Act. 5 ILCS 140/7.5(q). (xx) Information prohibited from being disclosed by the Illinois School Student Records Act. 5 ILCS 140/7.5(r). (xxi) Information the disclosure of which is restricted under Section 5-108 of the Public Utilities Act. 5 ILCS 140/7.5(s). (xxii) All health information in the form of health data or medical records in the Illinois Health Information Exchange. 5 ILCS 140/7.5(t). D. Process. 1. FOIA Officer. Each public body is required to designate a specific person or persons as the body’s FOIA Officer. The FOIA Officer is responsible for receiving all FOIA requests, responding to all requests and keeping all records required by the FOIA. All FOIA Officers must complete an initial and annual on-line training developed by the PAC. 5 ILCS 140/3.5. 2. Requests. (a) Form. Requests for the inspection or copying of public records must be made in writing and directed to the public body. A public body may accept oral requests, but is not required to do so. 5 ILCS 140/3. (i) A public body may not require a requester to use a standardized request form. (ii) A public body may not require a requester to specify the purpose for a request, except to determine if the request is for a commercial purpose or whether a fee waiver is appropriate. (b) Record Keeping. The FOIA Officer must create a physical or electronic file for each request received by the public body containing the original request, a copy of the response, a record of written communications with the requester and a copy of other communications. 5 ILCS 140/3.5(a). Copies of all denials of requests must be kept in a single central office file. 5 ILCS 140/9. ©2013 Holland & Knight LLP - 11 - 3. Timing. (a) Response by Public Body. In general, public bodies must respond to a properly submitted request with either an approval or a denial within five business days after the receipt of the request. 5 ILCS 140/3(d). (b) Extension. Public bodies may extend the time to respond to a request in one of two ways: (i) Statutory Extension. The FOIA allows a public body to extend the time to respond to a request by an additional five business days for any one of the following reasons: • the requested records are stored in a remote location; • the request requires the collection of a substantial number of records; • the request is for a whole category of records and requires an extensive search to locate all responsive documents; • the requested records were not found during a routine search, and additional efforts are required to locate them; • the requested records need to be reviewed by trained and/or knowledgeable personnel to determine if any exemptions apply; • responding to the request in the initial five-day period would be unduly burdensome to the public body; or • the public body needs to consult with another public body that has a substantial interest in the subject of the request. 5 ILCS 140/3(e). If a public body wants to take advantage of the statutory extension, it must notify the requester in writing within the original five-day period of its intent to do so and the reason for the extension. 5 ILCS 140/3(f). (ii) Agreed Extension. The public body also has the option of asking the requester to extend its time to respond beyond the statutory compliance periods. If the requester agrees to a different compliance date in writing, the public body is no ©2013 Holland & Knight LLP - 12 - longer bound by the statutory compliance periods. 5 ILCS 140/3(e). (c) Commercial Requests. The FOIA allows public bodies a much longer response time for requests made for a “commercial purpose.” The FOIA defines “commercial purpose” as being for the “sale, resale, or solicitation or advertisement for sales or services.” 5 ILCS 140/2(c-10). A public body must respond to a request for a commercial purpose within 21 working days by providing one of the following: (i) an estimate of the amount of time the public body will require to comply, and the fees to be charged; (ii) a denial of the request pursuant to a valid exemption; (iii) notice that the request is unduly burdensome and an opportunity to narrow the request; or (iv) the requested records. If a public body does not deny the request within the initial 21-day response period, it must respond to the request within a “reasonable period considering the size and complexity of the request,” while giving priority to non-commercial requests. 5 ILCS 140/3.1. (d) Requests by Recurrent Requesters. The FOIA also allows public bodies a longer response time to respond to “recurrent requesters.” A “recurrent requester” is any person who, in the 12-month period immediately preceding a request, has submitted: (i) at least 50 requests; (ii) at least 15 requests in any 30-day period; or (iii) at least seven requests in any seven-day period. 5 ILCS 140/2(g). A public body must notify a requester that the public body is treating the requester as a recurrent requester within five business days of receiving the request. The public body must then respond to the recurrent requester within 21 working days by providing one of the following: (i) an estimate of the amount of time the public body will require to comply, and the fees to be charged; (ii) a denial of the request pursuant to a valid exemption; (iii) notice that the request is unduly burdensome and an opportunity to narrow the request; or (iv) the requested records. ©2013 Holland & Knight LLP - 13 - If a public body does not deny the request within the initial 21-day response period, it must respond to the request within a “reasonable period considering the size and complexity of the request.” 5 ILCS 140/3.2. Public bodies may not aggregate requests made by different people in the same household when determining if a requester is a “recurrent requester.” Public Access Opinion 12-0001 - Village of Smithfield. (e) Consequences of Missing the Response Deadline. If a public body does not respond to a request, the public body is deemed to have denied the request. If the public body responds to the request, but does not do so within the requisite time period, the public body is prohibited from imposing any applicable fees or from treating the request as unduly burdensome. 5 ILCS 104/3(d); see also Public Access Opinion No. 12-002 - Chicago Public Schools. Public bodies do not lose their right to withhold information or records that are exempt under the exemptions in the FOIA or other statutes if the response deadline is missed. Public Access Opinion No. 13-001 - Chicago Public Schools. 4. Electronic Format. If a public record is maintained in an electronic format, the public body must furnish it in the electronic format specified by the requester, if feasible. If it is not feasible to provide the record in the requested format, the public body should provide the record in the format in which the record is normally maintained or as a paper copy if requested. 5 ILCS 140/6(a) 5. Authorized Fees. A public body may require payment of any applicable copying fees before providing the responsive documents to a requester. (a) Paper Copies. A public body may not charge any fee for the first 50 pages of black and white legal or letter sized copies of responsive documents. A public body may not charge more than $0.15 per page for any additional black and white legal or letter sized copies required to comply with the request. The public body may charge requesters its actual per-page cost, and no more, for color or oversized copies. 5 ILCS 140/6(b). The PAC has issued two binding opinions regarding fees for photocopies: (i) Public bodies must make copies of public records upon request and payment of applicable fees; merely providing requesters with the opportunity to copy the records is not sufficient. Public Access Opinion No. 10-001 - Village of Wapella. (ii) Public bodies may not charge requesters copying fees for any additional copies that the public body is required to make for ©2013 Holland & Knight LLP - 14 - its own review or recordkeeping purposes. Public Access Opinion No. 10-002 - City of Kankakee. (b) Other. (i) A public body can charge a requester the cost it incurs purchasing recording media for a response (CD, DVD, VHS tape, etc.). 5 ILCS 140/6(a). (ii) If it public body spends more than eight hours searching for and/or retrieving public records for a particular request, the public body may charge the requester up to $10.00 per hour for any time over the initial eight hours. 5 ILCS 140/6(f). (iii) A public body may charge the requester for the actual cost of retrieving and transporting public records from an off-site storage facility when the records are maintained by a third-party storage company pursuant to a contract with the public body. The public body must provide the requester with the accounting of all such fees. 5 ILCS 140/6(f). (c) Fee Waiver. A public body is required to provide a fee reduction or waiver for requests that are deemed to be in the public interest. Requests are in the public interest if the principal purpose of the request is to “access and disseminate information regarding the health, safety and welfare of the legal rights of the general public” 5 ILCS 140/6(c). 6. Denials and Requests to Narrow. (a) Partial Denials/Redactions. Public bodies may deny requests for public records that are exempt under Sections 7 and 7.5 of the FOIA (see below). The exemptions, though numerous, must be narrowly construed. When a record contains both exempt and non-exempt information, the public body is required to delete or redact the exempt information and make the remainder of the record available. 5 ILCS 140/7. (b) Form and Requirements. All denials of requests must be in writing and include the reason for the denial, including a “detailed factual basis” for, and a specific reference to, each exemption asserted by the public body. A written denial must also inform the requester of his or her right to review of the denial by the PAC and judicial review. 5 ILCS 140/9. (c) Narrowing Categorical Requests. If a requester asks a public body to produce all records within a certain category, and the public body ©2013 Holland & Knight LLP - 15 - determines that compliance with the request would be “unduly burdensome,” it may ask that the requester meet and confer with the FOIA Officer to determine if the request can narrowed to more manageable proportions. If the requester refuses to narrow the request and the public body determines that the burden of the request outweighs the public interest in disclosure of the records, it may deny the request in writing. 5 ILCS 140/3(g). (d) Repeat Requests. A public body may deny repeated requests for the same records by the same requester on the basis that such requests are unduly burdensome so long as the public body either: (i) previously provided the requested records to the requester; or (ii) properly denied the previous request. 5 ILCS 140/3(g). If the public body improperly denied the previous request, the public body may not deem a repeated request for the same records unduly burdensome. Public Access Opinion 11-003 - University of Illinois. E. Remedies 1. Review by PAC. (a) Request for Review. After a public body denies a request, the requester may, no later than 60 days after the denial, ask the PAC to review the denial. 5 ILCS 140/9.5(a). (b) Review by PAC. The PAC then reviews the request to determine if further action is necessary. If the PAC determines further action is necessary, it may request additional documents from the public body. The PAC has the power to subpoena records. The PAC is required not to further disclose records or information that a public body asserts to be exempt to any other person or body. 5 ILCS 140/9.5(b). (c) Opinion/Determination. The PAC is obligated to issue either a binding opinion or a case-specific determination (non-binding opinion) on the request for review within 60 days (with the possibility of one 21-day extension). In practice, the PAC has issued determination letters far more often than binding opinions. Only 23 binding opinions have been issued by the PAC since January of 2010. 5 ILCS 140/9.5(b). 2. Administrative Review of PAC Decisions. A binding opinion is considered a final decision of the PAC and is reviewable in circuit court under the Administrative Review Law. 5 ILCS 140/11.5. In 2012, a judge on the Cook Circuit Court held that determination letters (non-binding opinions) are subject to review under the Administrative Review Act. See Garlick v. OPRF, 11 CH 7587 (July 17, 2012). The Fourth District Appellate Court more ©2013 Holland & Knight LLP - 16 - recently held that determination letters are not subject to review by the circuit courts. Brown v. Grosskopf, 2013 IL App. (4th) 120402. 3. Circuit Court. In addition to review by the PAC, any person denied access to a public record may file suit in circuit court for injunctive or declaratory relief. 5 ILCS 140/11. Once a suit has been filed in circuit court, any review of the denial by the PAC is stayed. 5 ILCS 140/9.5(g). (a) Attorneys Fees. If a court finds for the requester, it is supposed to award reasonable attorneys fees and costs in proportion to the relief obtained. 5 ILCS 140/11(i). (b) Fines. If a public body is found to have willfully and intentionally failed to comply with the FOIA or otherwise acted in bad faith, the circuit court is to impose a fine between $2,500 and $5,000. 5 ILCS 140/11(j). F. Recent/Proposed Amendments 1. Senate Bill 1540: Attorneys Fees. Provides requesters an expanded right to attorneys’ fees by providing them this remedy not only when requesters prevail in a court case brought to inspect or copy records, but also when the requester obtains the right to inspect or copy records (i) pursuant to an enforceable written agreement or consent decree, or (ii) if the public body changes its position as to the requester’s right to inspect or copy the records after the suit has been filed. Status: Pending before the Senate. 2. House Bill 2326: Commercial Requests and Fees. Requires persons who file a request for a commercial purpose to provide a statement setting forth the commercial purpose. Authorizes public bodies to charge a fee to commercial requesters for time, materials, equipment, and personnel in copying or producing the record. Provides that if a requester does not disclose that its request is for a commercial purpose, the requester is liable to the public body for damages in the amount of 3 times the amount of the fee that the public body could have charged the requester if its commercial purpose had been disclosed, plus costs and reasonable attorneys’ fees. Also allows public bodies to provide electronic records in a format that is generally accessible to the public (as opposed to the specific format requested). Removes requirement that first 50 black and white copies be provided at no charge. Allows public bodies to make records available electronically (via web and email) and direct requesters to those records in lieu of providing copies. Status: Pending before the House. ©2013 Holland & Knight LLP - 17 - 3. House Bill 2747: Requests Made By E-mail. Provides that a public body shall respond to any request for inspection or copies that is made by electronic mail. Provides that public bodies must post an e-mail address where requests for records can be made. Status: Passed House March 22, 2013; Pending before the Senate. 4. House Bill 2930: Exemption. Clarifies that public bodies can reach an agreement by e-mail with the requester if the request was made by e-mail to narrow requests or extend the time in which the public body has to respond to a request. Further clarifies that a public body can deny a request by e-mail if the request is received by e-mail. Status: Passed House March 22, 2013; referred to Senate Assignments Committee April 11, 2013. ©2013 Holland & Knight LLP - 18 - Part II. Open Meetings Act A. Overview of the Open Meetings Act. The Illinois Open Meetings Act, 5 ILCS 120/1 et seq., generally requires that all meetings of municipal bodies be open to the public. There are exceptions to this general rule, pursuant to which certain meetings or portions of meetings may be closed to the public. The Open Meetings Act also sets out notice and minute taking requirements for meetings of public bodies. Just as with the Freedom of Information Act, the Attorney General’s Public Access Counselor has the authority to review possible violations of the Open Meetings Act. 1. Purpose. To ensure that public bodies deliberate and act openly. 2. Applicability. All meetings of all public bodies (subject to the exceptions listed below). (a) Meetings. A gathering of a majority of a quorum for the purpose of discussing public business. 5 ILCS 120/1.02. (i) Gathering. A gathering may occur either in person, by telephone, electronic chat, or other means of contemporaneous communications. Meetings of public bodies may be conducted by audio or video conference, provided that the public is able to hear such conference by means of a speaker phone or other device and all rules governing electronic attendance are followed. (ii) Majority of a Quorum. A “quorum” is the minimum number of members required to take action on behalf of the public body. The number of members constituting a “majority of a quorum” depends on the number of members of the public body. • 9-member public bodies - When a public body consists of nine members, a quorum of that body is five members. Therefore a majority of that quorum is three members • 7-member public bodies - When a public body consists of seven members, a quorum of that body is four members. Therefore a majority of that quorum is three members. • 5-member public bodies - When a public body consists of five members, a quorum of that body is three members. Therefore a majority of that quorum is two members. The Open Meetings Act was amended in 2007 to provide that two members of a five-member board may talk about public ©2013 Holland & Knight LLP - 19 - business outside of a meeting even though a quorum for a five-member board is three members and two is a majority of that quorum. However, this exception does not apply to boards with less than five members. (iii) Public Business. The Open Meetings Act applies only to gatherings held for the purpose of discussing public business. The Open Meetings Act does not apply to purely social or to political gatherings. (b) Public Bodies. The Open Meetings Act applies to all legislative, executive, administrative, and advisory bodies of the State. It also applies to all political subdivisions of the states, including counties, townships, cities, villages, other municipal corporations, and all subsidiary bodies of such entities (5 ILCS 120/1.02), including city councils, boards of trustees, boards of commissioners, zoning boards of appeals, plan commissions, police and fire pension boards, boards of fire and police commissioners, and standing committees. To determine whether an entity is a subsidiary body of a municipal corporation, the courts look to (i) whether the entity has a legal existence independent of government resolution, (ii) the nature of the functions performed, and (iii) the degree of governmental control over the entity. Hopf v. Topcorp, Inc., 628 N.E.2d 311, 314-15 (1st Dist. 1993). The Open Meetings Act does not apply to the following types of gatherings: (i) staff meetings (unless a majority of a quorum of a public body attends the staff meeting and public business is discussed); (ii) informal committees not formally appointed by, or accountable to, any public body. B. Locations of Meetings. The Open Meetings Act provides that all meetings required by the Open Meetings Act to be open to the public shall be held in “places which are convenient and open to the public.” 5 ILCS 120/2.01. Public bodies have latitude on where to hold their public meetings, but the location must be reasonably convenient for the public to attend. Meetings in a private residence may not be reasonably convenient or accessible to the public to satisfy the requirements of the Open Meetings Act. Public Access Opinion 12-008 - Whiteside School District No. 115. ©2013 Holland & Knight LLP - 20 - C. Notices of Meetings. The Open Meetings Act requires that a public body must provide advanced notice of its meetings, whether the meetings are open or closed. 5 ILCS 120/2.02. 1. Timing of Notice. 5 ILCS 120/2.02(a). (a) Regular Meetings. At the beginning of each calendar or fiscal year, every public body must give notice of the date, time, and place of its regular meetings. In addition, the public body must post the agenda for each regular meeting at least 48 hours prior to the meeting at the public body’s principal office and at the location of the meeting. (b) Special Meetings, Rescheduled Regular Meetings, and Reconvened Meetings. (i) Notice of special meetings, rescheduled regular meetings, and reconvened meetings must be given at least 48 hours in advance of such meetings. However, the requirement of public notice of reconvened meetings does not apply to any case in which the meeting was open to the public and: • the meeting is reconvened within 24 hours; or • an announcement of the time and place of the reconvened meeting was made at the original meeting and there is no change in the agenda. 5 ILCS 120/2.02(a). (ii) Notices for special meetings, rescheduled regular meetings, and reconvened meetings must include an agenda. Errors and omissions in agenda will not affect validity of actions taken, but a “catch-all” category, such as agenda items titled “other business,” on a special meeting agenda is generally invalid. (c) Emergency Meetings. Notice of emergency meetings shall be given as soon as practicable before holding the meeting to any news medium that has filed an annual request for notice. 5 ILCS 120/2.02(a). 2. Manner of Posting of Notice. 5 ILCS 120/2.02(a) and (b). (a) Posting at Principal Office. If the public body has a principal office (such as a city or village hall), then the notice must be posted at that office. If the public body has no principal office, then the notice shall be posted at the building in which the meeting is to be held. In addition, a schedule of the regular meetings must be made available to the public. ©2013 Holland & Knight LLP - 21 - (b) News Media. The public body must provide a copy of the notice of its regular meetings and the notice of any special, emergency, rescheduled, or reconvened meetings to any news medium that has made an annual request for such notices. Notices of special, emergency, rescheduled, or reconvened meetings shall be given to news media in the same manner as such notices are given to members of the public body. (c) Websites. If a public body has a website that is maintained by the full-time staff of the public body, then the public body must post the notices and agendas for its meetings on its website. 3. Agendas. 5 ILCS 120/2.02(a). (a) Posting of Agenda. Section 2.02 of the Open Meetings Act requires public bodies to post agendas for each regular meeting at the principal office of the public body and at the location of the meeting at least 48 hours in advance of the meeting. In addition, if a public body has a website maintained by the public body’s full-time staff, the public body must post the agenda on the website. (b) Consideration of Items Not Listed on Agenda. Section 2.02 further provides that the agenda requirement “shall not preclude the consideration of items not specifically set forth in the agenda.” See 5 ILCS 120/2.02(a). However, a public body is precluded from taking final action on items not listed on the agenda. Rice v. Board of Trustees of Adams County, 765 N.E.2d (4th Dist. 2002). Accordingly, City councils, village boards, county boards, and other public bodies should ensure that all items the public body desires to vote on at a meeting are specifically identified on that meetings agenda prior to the meeting. General descriptions on an agenda of items that do not specifically identify the type of final action the public body may take may be insufficient to satisfy the requirements of the Open Meetings Act. See Public Access Opinion 12-002 - Chicago Park District (holding that the District could use an agenda item titled “Communications and reports - Committee on Programs and Recreation” to take final action on raising fees). D. Public Comment. The Open Meetings Act was amended in 2011 to add a requirement that “[a]ny person shall be permitted an opportunity to address public officials under the rules established and recorded by the public body.” 5 ILCS 120/2.06(g). As indicated in this provision, a public body can define the manner and extent of public comments in its rules. See City of Champaign v. Williams, 13 Ill. App. 3d 418, 420-21 (4th Dist. 1973) (rules preventing disturbance of assemblage are enforceable, but mere ©2013 Holland & Knight LLP - 22 - attendance without creating noise or engaging in disruptive conduct did not constitute a disturbance under the rule does not create a disturbance even if such attendance is objected to by the chair). 1. Scope of Public Comment. Notwithstanding the requirement that all persons who attend a public meeting open to the public have the right to address the public body, the meeting still takes on the status of a “limited public forum.” The public body can place limitations on the scope of the forum. See Collinson v. Gott, 895 F.2d 994, 999 (4th Cir. 1990) (Phillips, J., concurrence)(there is “considerable latitude … in imposing subject matter restrictions on scheduled public meeting discussions”), citing City of Madison Joint School Dist. No. 8 v. Wisconsin Employ. Rel. Comm’n, 429 U.S. 167, 175 n. 8 (“Plainly … may confine … meetings to a specified subject matter…”); Vergara v. City of Waukegan, 590 F. Supp. 2d 1024, 1036 (N.D. Ill. 2008) (the “audience time” portion of the City Council meeting held a designated public forum). 2. Rules Relating to Public Comment. The 2011 amendment offers no direction with respect to the rules that public bodies may adopt to regulate public comment. Courts, however, have favorably reviewed various types of public comment rules that are consistent with constitutional requirements. Some examples include: (a) Public comment rules requiring the speaker (a) to sign up on a master list, (b) limit comments two minutes, (c) confine remarks to the re-organization of county government, and (d) “avoid discussion of personalities.” See Collinson v. Gott, 895 F.2d 994, 996 (4th Cir. 1990)(Phillips, J., concurrence). (b) Rules prohibiting speakers from using “obscene or profane language, physical violence or threats thereof, or other loud and boisterous behavior which the presiding officer …shall determine is intended as a disruption of the meeting and a failure to comply with any lawful decision or order of the presiding officer….” Jones v. City of Key West, 679 F. Supp. 1547, 1551 (S.D. Fla. 1988) (court found rules constitutional, but their implementation unconstitutional; plaintiff awarded $31,500.00). (c) Courts have further observed that regulations requiring “that speakers stay on the topic of discussion and speak within their allotted time” are constitutionally acceptable. Thompson v. Huntington, 69 F. Supp. 2d 1071, 1076 (S.D. Ind. 1999). While a government may not “regulate speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction […] content based restraints are permitted, so long as they are designed to confine the forum to the limited and legitimate ©2013 Holland & Knight LLP - 23 - purpose for which it was created.” Galena v. Leone, No. 10-1914 (3d Cir. April 13, 2011). E. Minutes. 1. Keeping of Minutes. The Open Meetings Act requires that minutes be kept of all meetings of public bodies, whether open or closed. The minutes must include the date, time, and place of the meeting, the members of the public body present and absent, a summary of the discussion on all matters proposed, deliberated, or decided, and a record of votes taken. 5 ILCS 120/2.06. 2. Approval of Minutes. A public body is required to approve the minutes of an open meeting within 30 days after the meeting or at the public body’s second subsequent regular meeting, whichever is later. Within ten days after minutes are approved by the public body, minutes of all open meetings are required to be made available for public inspection. Minutes of closed meetings are required to be made available to the public only after the public body determines that it is no longer necessary to keep such minutes confidential. If a public body has a website that is maintained by the full-time staff of the public body, then the public body must post the minutes of regular meetings of its governing body on the website no later than ten days after approval. 5 ILCS 120/2.06. 3. Recordings Made by Third-Parties. The Open Meetings Act provides that any person may tape, film, or otherwise record any meeting open to the public unless a witness does not want his testimony before the public body to be televised. If a witness does not want his or her testimony televised, then the public body may prohibit taping, filming, or recording during the testimony. 5 ILCS 120/2.05. Public bodies may impose reasonable rules to govern third parties’ rights to make recordings of open meetings. Public Access Opinion 12-010 - Lake County Board of Review. F. Exceptions to Open Meetings Requirement (Closed Sessions). A meeting, or a portion of a meeting, may be closed to the public upon a majority roll call vote of a quorum present at a meeting open to the public that was properly noticed. (See Appendix A quick reference sheet titled “Appropriate Closed Session Topics”) The motion to close a meeting must state the specific exception(s) of the Open Meetings Act that authorize the public body to discuss the item on the agenda at issue in a closed session. 5 ILCS 120/2a. This statement does not need to reference the specific statutory basis for the executive session so long as the basis is ascertainable from the motion to close a meeting. See Harvey v. Anderson et al., No. 4-04-0867 (4th Dist. 2005). ©2013 Holland & Knight LLP - 24 - Meetings or portions thereof relating to the topics listed below may be closed to the public. Note that the exceptions are to be narrowly construed. People ex rel. Ryan v. Village of Villa Park, 570 N.E.2d 882, 885 (2d Dist. 1991). 1 Employment/Appointment Issues. (a) Appointment, employment, compensation, discipline, performance, and dismissal of individual employees. (b) Testimony relating to complaints lodged against individual employees. (c) Collective negotiations and salary schedules for classes of employees (applies only to pending collective bargaining negotiations). (d) Appointment of members to fill public offices (but only if the public body has power to appoint). (e) Discipline or removal of public officers (but only if the public body has the power to remove). 2. Legal Matters. (a) Evidence or testimony in public or closed hearing when a written decision is subsequently made available. (b) Litigation that is pending in court affecting or on behalf of the public body (c) Probable or imminent litigation affecting or on behalf of the public body. Note - If a public body enters into closed session to discuss probable or imminent litigation, the public body is required to record and enter into the minutes the basis for the finding that litigation is probable or imminent. 5 ILCS 120.2(c)(11); see also Public Access Opinion 12-013 - Washington County. (d) Establishment of reserves or settlement of claims (if the disposition of claims or potential claims otherwise would be prejudiced) and communications with any insurer of the public body. (e) Discussion of minutes of meetings lawfully closed under OMA for the purposes of approval or semi-annual review of the body. ©2013 Holland & Knight LLP - 25 - 3. Business Matters. (a) Purchase or lease of real property for use by the public body. (b) Setting a price for the sale or lease of real property owned by the public body. (i) Note - Public bodies can only discuss the setting of a price, and not issues generally related to the sale or development of a property, such as potential zoning or uses for the property. February 26, 2013 Public Access Letter 2012 PAC 21961 - City of Elmhurst. (c) Selling or purchasing securities, investments, or investment contracts. (Note that this exception does not apply to the issuance of bonds by a public body.) (d) Matters involving the operation of a municipal utility, municipal power agency or municipal natural gas agency specific to (i) contracts relating the purchase, sale or delivery or electricity or natural gas, or (ii) the results of load forecast studies. (e) Meetings between internal and or 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 of the United States of America. 4. Security/Criminal Matters. (a) Emergency security procedures. (b) Informants, undercover personnel or equipment, and criminal investigations (only when the public body has criminal investigatory responsibilities). (c) Deliberations of the Prisoner Review Board. 5. School Matters. (a) Student discipline. (b) Matters relating to individual students, including the placement of individual students in special education programs. ©2013 Holland & Knight LLP - 26 - 6. Health Care Matters. (a) Recruitment, credentialing, discipline, or formal peer review of physicians and other health care professionals (only when the public body operates a hospital). (b) Applications received under the Experimental Organ Transplantation Procedures Act. (c) Operations of the State Emergency Medical Services Disciplinary Review Board. (d) Meetings of an independent team of experts under Brian’s Law. (e) Meetings of a residential health care facility resident sexual assault and death review team under the Abuse Prevention Review Team Act. (f) Meetings of a mortality review team under the Juvenile Justice Mortality Review Team Act. (g) Confidential information discussed with a fatality review team under the Elder Abuse and Neglect Act. 7. Miscellaneous Matters. (a) Conciliation of complaints relating to housing discrimination (only when closed meetings regarding fair housing practices are authorized by law or ordinance and a committee or agency is created for enforcement of such practices). (b) Professional ethics or performance (only when the public body has been appointed to advise a licensing or regulatory agency). (c) Self evaluation, practices and procedures, and professional ethics (only when the meeting is with a statewide association of which the public body is a member). (d) Matters classified as confidential or continued confidential by the State Employees Suggestion Award Board. (e) Correspondence and records (i) that may not be disclosed under Section 11-9 of the Public Aid Code or (ii) that pertain to appeals under Section 11-8 of the Public Aid Code. ©2013 Holland & Knight LLP - 27 - G. Recording Closed Sessions. The Open Meetings Act requires written minutes of closed sessions just as it does for open sessions. All public bodies must create a verbatim recording of any closed meetings, in the form of an audio or video recording. 5 ILCS 120/2.06(a). 1. Verbatim Record Requirements. (a) Verbatim recordings of closed meeting may be kept in the form of an audio or video recording. 5 ILCS 120/2.06(a). (b) Eighteen months after the closed meeting, the public body may destroy the verbatim recording if the public body approves the destruction of the recording and has approved the written minutes of the closed meeting. 5 ILCS 120/2.06(c). 2. Protections From Disclosure. (a) Verbatim recordings are exempt from production under the Local Records Act, the State Records Act, and the Illinois Freedom of Information Act. See 5 ILCS 140/7(a) & (m). Further, the verbatim recording is not subject to public inspection or to discovery unless a court determines otherwise. (b) A court may conduct an in camera review of the verbatim recording in cases brought to enforce the Open Meetings Act and in criminal proceedings. Any portion of the verbatim recording released may be redacted to protect the attorney-client privilege. (c) The Public Access Counselor has the same right to examine a verbatim recording as a court would, but is not permitted to disclose the recording to the public. 5 ILCS 120/3.5(b) and (g). (d) In a non-home rule municipality, a public body may not sanction one of its members for disclosing information or issues discussed in a closed meeting. 1991 Ill. Att’y Gen. Op. 1. Similarly, no cause of action exists against a public body for disclosing information from a closed meeting. Swanson v. Board of Police Commissioners, 555 N.E.2d 35, 47 (2d Dist. 1990). 3. Creating and Maintaining a Verbatim Recording. (a) Each verbatim recording should be properly labeled and immediately catalogued in a safe storage area at the conclusion of the meeting. ©2013 Holland & Knight LLP - 28 - (b) Recording should commence as soon as the closed session convenes, with the presiding officer stating the purpose for the closed session, and identifying everyone in attendance. (c) Control of the verbatim recording should rest with the member of the public body responsible for preparing the minutes of the meeting. For instance, in city council or village board meetings, the city or village clerk should be the individual responsible for ensuring that the closed meeting are properly recorded. (d) Due to its confidential nature, access to the verbatim recording should be limited to as few individuals as possible, and should only be approved by majority vote of the corporate authorities. H. Electronic Communications. The emergence and widespread use of e-mail and other electronic communications have presented challenging questions regarding compliance with the Open Meetings Act. The General Assembly amended the Open Meetings Act in 2009 to address electronic communications, adding a new Section 7 which allows members of the public body to attend meetings via audio or video conference in the following circumstances: • personal illness or disability; • employment purposes or the business of the public body; or • a family or other emergency. 5 ILCS 120/7. Electronic attendance is only allowed if (i) a quorum of the public body will be physically present at the meeting and (ii) a majority of the members of the public body approve of the electronic attendance. Section 7 requires the public body to adopt rules consistent with the section before a member may be allowed to attend a meeting electronically. Many municipalities have done so and Holland & Knight has prepared model rules for this purpose. In light of the purpose of the Open Meetings Act (the open deliberation and action of public bodies) and the risk of criminal penalties for its violation, we urge restraint when using any electronic communications outside the context of a public meeting for exchanging views on public issues among members of a public body. We also offer the following rules of thumb: • Avoid chat rooms. • If members of a public body wish to discuss matters of public business informally via e-mail, then the e-mail messages should be confined to fewer than a majority of a quorum of the public body’s membership. ©2013 Holland & Knight LLP - 29 - Thus, for a seven-member board, not more than two members of the public body should be exchanging such e-mails. • If e-mail is used to distribute information to members of the public body, be sure to limit any replies to the original sender of the e-mail. Do not “reply to all.” I. Training. Every public body is required to designate specific employees, officers, or members to successfully complete the electronic Open Meetings Act training offered by the Illinois Attorney General’s Public Access Counselor. In addition, every elected or appointed official of a public body that is subject to the Open Meetings Act and who was elected or appointed prior to January 1, 2012 was required to successfully complete the electronic Open Meetings Act training offered by the Illinois Attorney General’s Public Access Counselor prior to January 1, 2013. Every elected or appointed official of a public body that is subject to the Open Meetings Act and who 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. The Illinois Attorney General’s Public Access Counselor’s Open Meetings Act Training is at: http://foia.ilattorneygeneral.net. Once the training is completed, the elected or appointed official is required to file a copy of the certificate of completion with the public body. 5 ILCS 120/1.05. J. Enforcement. 1. Civil. Any person (including the State’s Attorney of the relevant county) may sue a public body for failure to comply with the Open Meetings Act. 5 ILCS 120/3. Note that the term “any person” has been held to include public bodies. Paxson v. Board of Education of School District No. 87, 658 N.E.2d 1309, 1314 (1st Dist. 1995). If the PAC is reviewing an alleged violation of the Open Meetings Act at the time the complainant files a suit in circuit court, the PAC’s review is stayed. A person cannot seek punitive damages for violations of the Open Meetings Act. Parker v. Nichting, 966 N.E.2d 63 (Ill. 3d. 2012). 2. Criminal. A violation of the Open Meetings Act is a Class C Misdemeanor, punishable by a fine of up to $1,500 and imprisonment for up to 30 days. 5 ILCS 120/4; 730 ILCS 5/5-9-1; 730 ILCS 5/5-8-3. ©2013 Holland & Knight LLP - 30 - 3. Review by Public Access Counselor. 5 ILCS 120/3.5. (a) Request for Review. Any person who believes that a violation of the OMA has occurred may, no later than 60 days after the alleged violation, ask the PAC to review the alleged violation. (b) Review by PAC. The PAC then reviews the request to determine if further action is necessary. If the PAC determines further action is necessary, it may request additional records or documents from the public body. The PAC has the power to subpoena records. (c) Opinion/Determination. The PAC is obligated to issue either a binding opinion or a case-specific determination on the request for review within 60 days (with the possibility of one 21-day extension). 4. Administrative Review of PAC Decision. A binding opinion is considered a final decision of the PAC and is reviewable in circuit court under the Administrative Review Law. 5 ILCS 120/11.5. K. Posting of Information About Employees Compensation Packages A recent amendment to the Open Meetings Act expanded the scope of the Open Meetings Act to require Illinois Municipal Retirement Fund (IMRF) employers to 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. 5 ILCS 120/7.3(b). In addition, each IMRF employer, within six days after approving its annual budget, must post notice of the total compensation package of any employee whose total yearly compensation exceeds $75,000. 5 ILCS 120/7.3(a). 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. ©2013 Holland & Knight LLP - 31 - APPENDIX A Quick Reference Sheet for Commonly Used Closed Session Topics  Personnel Appointment/employment/compensation of an employee. 5 ILCS 120/2(c)(1). Discipline/dismissal of an employee. 5 ILCS 120/2(c)(1). Hearing complaints against an employee. 5 ILCS 120/2(c)(1). Collective bargaining negotiations. 5 ILCS 120/2(c)(2). Appointments to public offices (if the body has power to adopt). 5 ILCS 120/2(c)(3). Discipline/removal of officers (if the body has power to remove). 5 ILCS 120/2(c)(3).  Litigation Pending litigation against, affecting, or on behalf of public body. 5 ILCS 120/2(c)(11). Probable or imminent litigation against, affecting, or on behalf of public body. 5 ILCS 120/2(c)(1).  Property Purchase/lease of real property for use by public body. 5 ILCS 120/2(c)(5). Setting price for sale/lease of real property owned by public body. 5 ILCS 120/2(c)(6).  Securities Selling/purchasing securities, investments, or investment contracts (does not apply to issuance of bonds). 5 ILCS 120/2(c)(7).  Emergency Security Procedures. 5 ILCS 120/2(c)(8).  Investigations (if public body has investigatory responsibilities). 5 ILCS 120/2(c)(14).  Closed Meeting Minutes. 5 ILCS 120/2(c)(21). SUBJECT: Park Board Meeting Spotlights PRESENTED BY: Mary Van Arsdale, Director, 810-3918 PURPOSE AND ACTION REQUESTED: Staff is seeking input from the Parks and Recreation Board on program areas or services that they would like to see as a Spotlight agenda item at our 2014 meetings. BACKGROUND/DISCUSSION: Over the past several years, staff has included on the monthly meeting agenda various spotlight presentations. The presentations were focused on providing background about various services offered by the department. Content has typically included the scope of services offered, enrollment numbers, staffing, outstanding accomplishments and financial performance. On occasion we have also invited outside organizations that we partner with such as NSSRA, Lake Forest Open Lands Association, and the Environmental Collaborative to present information. We have tried to schedule the presentations with what is timely information for the community or will provide seasonal reporting that will be beneficial for the board (i.e. beach information approaching summer, Kinderhaven after significant enrollment period, etcetera). As we begin to layout the 2014 meeting calendar, staff thought it would be good to ask the Park Board members if they have any specific areas or groups they would like us to schedule. In addition, with alternating untelevised Committee of the Whole meetings, the number of presentations has been reduced. As a result, staff is also seeking Park Board direction on whether they wish to have spotlights on the non-televised meetings. Outlined below is an overview of the past two years of spotlight presentations for your reference. Park Board Spotlights 2012 January – Fitness Center March – Sailing April – Summer Camps May – Forest Park 25th Anniversary Beach Bash August – Kinderhaven Preschool Academy September – Wildlife Discovery Center December – Stirling Hall Art Center Park Board Action: None, discussion only. 2013 February – Fitness Center April – Baseball & Basketball June – Summer Camps July – Environmental Collaborative September—NSSRA (also an action item) November – Lake Forest Open Lands