by James G. Wargo (Fall 2016)

A recent amendment to the Open Meetings Act (“OMA”) intended to provide school board members greater access to closed session minutes and audiotapes could have the unintended result of making it more difficult for school boards members to review such records.
 
Section 2.06 of the OMA was amended by Public Act 99-0515, effective June 30, 2016. The legislation appears to have been adopted in response to complaints from newly elected members of the board of trustees for the College of DuPage who were denied access to the board’s closed session meeting minutes and recordings created prior to their election.
 
Section 2.06 of the OMA requires all public bodies to keep written minutes of all open and closed meetings, and to keep an audio or video verbatim record of all closed session meetings for a statutorily prescribed period of time. Generally, Section 2.06 restricts public access to closed session meeting minutes and verbatim recordings of closed session meetings. An exception exists if the public body determines that such records no longer require confidential treatment to protect the public interest or the privacy of referenced individuals, or otherwise consents to disclosure of such records.

Effective June 30, 2016, Public Act 99-0515 amends Section 2.06 of the OMA to require public bodies to provide its respective “elected officials” and “appointed officials filling a vacancy of an elected office” access to the verbatim recordings of closed meetings and closed session meeting minutes, subject to the following restrictions:

  • Access is restricted to the public body’s main office or official storage location.
  • Access must be in the presence of a records secretary, an administrative official of the public body, or any elected public official.
  • No verbatim recordings or closed session meeting minutes shall be recorded or removed from a public body’s main office or official storage location, except by vote of the public body or by court order.
  • Nothing in the statute shall be construed to limit the Public Access Counselor’s access to verbatim recordings and closed session meeting minutes necessary to address a request for administrative review under Section 7.5 of the OMA.

While Public Act 99-0515 attempts to ensure that elected officials have access to closed meeting records, the legislation may create a few practical problems that are considered below.

First, the amendment restricts the movement and handling of closed session meeting minutes and verbatim recordings, which could affect the current manner in which a public body handles and reviews its closed meeting records. Specifically, the amendment provides that no closed session meeting minutes or recordings may be removed from the public body’s main office or official storage location, except by vote of the public body or by court order.

Under this new provision, closed session meeting minutes could not be distributed to board members prior to a scheduled meeting. Similarly, board members could not review the closed session meeting minutes or recordings at a meeting location other than the school district’s main office or official storage location without a vote of the school board or by court order. To the extent that a school board’s current practices and procedures conflict with these new amendatory restrictions, the school board should consider adopting a policy to maintain its distribution and review practices for closed session meeting minutes and recordings.

Second, the amendment could also be interpreted to prohibit the distribution of closed session meeting minutes and recordings to the school board’s legal counsel or school administrators for review under various circumstances, including questions related to required statutory review or in response to an inquiry from the Public Access Counselor regarding an alleged violation of the OMA. To avoid the risk that the amendment is interpreted to limit access to closed session records by legal counsel or school administrators, a school board may also adopt a policy authorizing the handling of closed session meeting minutes and recordings by legal counsel and key school administrators.

While the legislative intent of the recent revisions may have been to create a procedure by which newly elected board members could review past closed session minutes and audiotapes, it unintentionally restricts the ability of all other board members, administrators and legal counsel to review such records in the normal course of business. To correct this oversight, school boards should adopt a policy that allows new school board members access to the records under the restrictions set forth in P.A. 99-0515, while maintaining the school board’s ability to access its closed session records without such restrictions.