by Ryan R. Morton (Winter 2018)
Government officials and employees should already be trained on the requirements of the Open Meetings Act and the Freedom of Information Act (“FOIA”). Most officials and employees will also be aware, then, that public records must be preserved for a certain length of time before they can be destroyed and the destruction of public records must first be approved by the State Archivist according to the Illinois Local Records Act (“LRA”). (50 ILCS 205/7) However, many do not realize that those rules also apply to any recordings made of open meetings, even if the recording is just to help the person writing the minutes.
Open public meetings do not have to be recorded; only closed session meetings must be recorded under the Open Meetings Act. However, it is common for a board secretary, clerk, or other employee to record an open public meeting to help them revisit discussions and double-check votes, just in case they missed jotting something down during the meeting.
As soon as an official or employee presses the red circle on a recording device during an open meeting, the resulting recording becomes a public record pursuant to the LRA. (50 ILCS 205/3) Additionally, the LRA provides that public records shall not be destroyed.
The FOIA presumes that “all records in the custody or possession of a public body” can be inspected or copied. (5 ILCS 140/1.2) That means the public has a right to request and receive a copy of the recording of an open meeting. If the recording cannot be disclosed because it was improperly deleted, the public body and the person who deleted the recording have violated the LRA. A person who violates the LRA may be committing a Class 4 felony. (50 ILCS 205/4)
The Illinois Attorney General recently considered this issue. A reporter submitted a FOIA request for all audio recordings made that year during the Lake County Housing Authority’s Board of Commissioners meetings. The Housing Authority denied the request, arguing that the recordings were preliminary materials exempt from FOIA under 5 ILCS 140/7(1)(f) because the recordings were only made to help someone compose the meeting minutes. The Housing Authority contended that the recordings would reveal the deliberations of the Board before the decisions were made public through the approved minutes.
The Attorney General’s Public Access Bureau issued a binding opinion in favor of the reporter (Public Access Opinion 17-012). The opinion explained that there is no danger of preliminary deliberations being revealed in the recording, because the meeting was open to the public. Someone could have attended the meeting and heard the discussion live. The opinion also explicitly stated that because the recording “is a record in the custody or possession of a public body” it must be made available for public inspection, if requested.
Although a recording of an open meeting is a public record, it does not need to be kept forever, unlike the minutes themselves. If a public body wants to delete these recordings on a regular basis, it should follow these four steps:
Add to Records Retention Schedule
Include any records the public body seeks to dispose on the “Records Retention Schedule.” To create a schedule, contact the State Archives at (217) 782-1080. However, if the public body has a Schedule on file, apply for an add-on to the Schedule.
Obtain the Local Records Commission’s Approval
The Local Records Commission (“LRC”) will review any proposed Schedule add-ons and determine whether the additional entries should be allowed.
Annually Submit Certificate for Disposal
An entry on a Records Retention Schedule merely clears the way for records destruction. A public body still must receive permission from the Commission before destroying anything, but that permission will be granted only if the record is listed on the Schedule. For recordings, though, a public body can submit a “Multi-Event Single Disposal Certificate” at the beginning of each year. This saves the public body the hassle of submitting a separate Certificate for every recording.
This Certificate should set the dates when each open meeting recording will be deleted during that year. The State Archivist recommends waiting at least 60 days after the minutes of that meeting are approved before deleting the recording. Therefore, a public body that meets monthly could approve its January minutes in February and then delete the January recording in April. The Certificate would explain what recording will be deleted every month.
Delete A Recording Each Month
After receiving the Commission’s approval of the annual Certificate, the public body is free to delete each recording according to that schedule.
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Keep in mind that the rules are different for closed session recordings. As mentioned above, verbatim audio recordings are required by the Open Meetings Act. (5 ILCS 120/2.06(a)) Unlike other “public records,” the Open Meetings Act provides a minimum length of time those recordings must be kept. After eighteen months, closed session recordings can be deleted, as long as the minutes for that closed session have been approved and still exist. While no permission is needed from the Commission to destroy these closed session recordings, the local governmental body should approve the destruction.
If a recording device is currently being used at open meetings, make sure the resultant recordings are being kept securely. Also, remind the person making those recordings that they cannot be deleted, unless the requirements of the LRA are met. If you need help updating your Schedule or working with the Commission, please contact your attorney with any questions.