FOIA Changes That Were Passed
- Increased Penalties
For years, the Freedom of Information Commission (“FOIC”) had the authority to impose a maximum fine of $1,000 on public officials when it determined that the denial of FOIA rights was "without reasonable grounds." Effective October 1, 2023, Public Act 23-200 increases this maximum fine to $5,000. Moreover, Public Act 23-200 grants the FOIC additional powers to levy fines against public officials under two circumstances: 1) when a public agency engages in a "practice or pattern of conduct" that obstructs any FOIA-guaranteed right, and 2) when there is "reckless, willful, or wanton misconduct" in delaying or denying responses to public records requests. Additionally, the FOIC now has broader authority to order appropriate relief to address such obstruction or misconduct and to prevent future violations of the FOIA. The FOIC is also empowered to seek court orders compelling public agencies to comply with FOIC directives.
- Posting Agendas and Documents
One of the legal mandates places a specific obligation on school boards. Starting July 1, 2023, according to Public Act 23-160, any board of education convening a regular or special meeting must: 1) provide the meeting agenda for public inspection, including "any associated documents that board members may review during the meeting," and 2) publish both the agenda and related documents on the district’s website. Previously, agendas only needed to be posted online for special or remote/hybrid meetings, but now this requirement extends to ALL school board agendas. While the obligation to make "associated materials" available to the public prior to the meeting and online excludes records exempt from public disclosure, it essentially mandates that traditional "board members' packets" be accessible in advance to the general public.
FOIA Changes That Were Not Passed
- Remote Meetings and Member Participation
House Bill 6906 proposed that any board member participating remotely in a meeting must use electronic equipment capable of transmitting video of the member. Since the bill did not pass, board members may still participate in remote meetings without video technology, as long as their audio setup allows "real-time public access" and enables the public to monitor their participation, in accordance with any board bylaws.
- Public Addresses
The majority of residential addresses of public agency employees are subject to disclosure and must be made available to the public. Senate Bill 1157 aimed to broaden existing exemptions to make all public employee addresses exempt from disclosure. Additionally, the bill proposed that public agencies notify employees in advance of any "mass request" (i.e., a request involving 50 or more employees) before fulfilling a FOIA request. However, Senate Bill 1157 did not pass and was not enacted before the legislative session concluded.
- Public Comments
House Bill 5796 sought to modify the FOIA by mandating that public agencies incorporate public comment periods into all their regular and special meetings. Since the bill did not pass, the choice of whether to include public comments in board meetings continues to be determined locally.
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