 |
Web Hosting by Netfirms | Free Domain Names by Netfirms |
|
|
|
April 3, 2006
The Honorable Donald E. Green
Mayor, City of Kankakee
385 East Oak Street
Kankakee, IL 60901
Mr. Christopher W. Bohlen
Corporation Counsel
385 E. Oak Street
Kankakee, IL 60901
Dear Mr. Mayor, Members of Council and Mr. Bohlen,
I am writing regarding several complaints that that our office has received from citizens as well as public officials related to the Kankakee City Council and its application of the Illinois Open Meetings Act, 5 ILCS 120, and also its application of the Illinois Freedom of Information Act, 5 ILCS 140. I will address both of them separately here.
Illinois Open Meetings Act, 5 ILCS 120
Our office has received questions and complaints with regard to whether the public is permitted to tape record an open meeting of a public body, specifically the Kankakee City Council. Alderman Cheryl Jones and Alderman James Cox also contacted our office indicating that they have been told they would need Council permission to tape a meeting before being permitted to do so. They also have forwarded a copy of an “Ordinance Establishing Procedure of City Council Regarding Recordings of Meetings” that Council is considering adopting with regard to taping open sessions. In pertinent part, the Ordinance states:
“Section One. No person shall be authorized to record any meeting of the City Council or its committees by any means unless that person has notified the City Council and all other participants of the intent to record any or all of the proceedings. Said Notice may be provided by signing a “Notice of Intent to Record” prior to the commencement of the meeting.”
It is the view of the Office of Attorney General that this proposed Ordinance violates section 5 ILCS 120/2.05 of Illinois Open Meetings Act and its clear public policy provision that grants a citizen the right to tape record a public meeting.
The Act’s public policy provision states that, “[i]t is the public policy of this State that public bodies exist to aid in the conduct of the People’s business, and that the People have a right to be informed as to the conduct of their business.” 5 ILCS 120/1. Further, “any person may record the proceedings at meetings required to be open by this Act by tape, film or other means.” 5 ILCS 120/2.05. As our office opined more than two decades ago, if the open meeting legislation is to have any meaning, it is essential that the public be granted the right to acquire a record of what transpired at such open meetings. 1975 Atty’ Gen Op. 17.
The Act does permits public bodies to create “reasonable rules” regarding the right to make recordings. 5 ILCS 120/2.05. The general view is that making reasonable rules is designed to address the fact that a public body must be able to maintain decorum in a meeting and must be able to perform its governmental function. 1980 Ill. Att'y Gen. Op. 102; 1975 and Ill. Att’y Gen. Op.17.
“There is no language in section 2.05 which shows any intent on the part of the General Assembly to change the law or which limits the right of any individual to record a meting; and there is no provision in the Open Meetings Act, or other statute, which grants a public body the authority to prevent recording (other than to preserve decorum and prevent interference with proceedings.) 1980 Ill. Att’y Gen. Op. 102.
The Office of Attorney General requests that the City of Kankakee revise its proposed ordinance to ensure that it complies fully with the Illinois Open Meetings Act, 5 ILCS 120.
Illinois Freedom of Information Act, 5 ILCS 140
Additionally, Alderman Cheryl Jones filed a Freedom of Information Act request with the City seeking copies of a tape recording of a City Council meeting of February 28, 2006. Mr. Bohlen responded on March 2, 2006 and denied the request for information.
He stated that “[t]he tapes involved are not public record.” He indicated that they these tapes are used to assist the transcriber and “therefore do not qualify as public records pursuant to the Freedom of Information Act.” He also states that the “tapes of public meetings are specifically prohibited to be duplicated pursuant to statute. No consent has been given for the duplication of this tape and therefore your duplication is prohibited by law.”
The City of Kankakee is in violation of the Freedom of Information Act with regard to this response for the reasons outlined below.
When a public body denies a request for information it must specifically cite the section of the Act that authorizes the public body to withhold the information. 5 ILCS 140/9. The Act also requires that a public body inform the citizen that he or she has a right to appeal the denial of information by writing to the head of the public body, and must provide to the requestor the name and address of that person. 5 ILCS 140/11. Failure to do so is considered a denial for purposes of the Act.
However, the City is in violation of the Act with regard to the substance of the request as well. Subsection 2(c) of the Act specifically defines the term "public records" to include all records, reports, forms, writings, letters, memoranda, books, papers, maps, photographs, microfilms, cards, tapes, recordings, electronic data processing records, recorded information and all other documentary information having been prepared, or having been or being used, received, possessed or under the control of any public body. It is our view that the tape recording of a public meeting recorded by the Clerk or member of the public body is a public record available for inspection and copying and should be provided consistent with the provisions of this Act.
I am unclear as to what statute is referenced that would preclude an individual from duplicating a public record. I would be happy to review that if you would provide the citation to this statute.
Lastly, a public official is not required to file a FOIA to obtain a record in the performance of her official duties. Ebert v. Thompson, 282 Ill.App.3d 385, 387-388 (1st Dist. 1996). While a member of a public body is not necessarily entitled to particular documents of a public body merely because they are a member of that body, a Board member cannot be denied access to information relevant to the exercise of his or her duties, including information that would not generally be subject to public disclosure. Att’y Gen. Op. 32, 1996; Atty’Gen. Op. 36, 2001.
However, since Alderman Jones filed the request, please review this request for information and respond in accordance with the Act.
If I could offer further assistance, please contact me at 217.524.1503.
Respectfully,
Terry Mutchler
Public Access Counselor
Assistant Attorney General
cc: The Honorable Edward Smith
The Honorable Anjanitas Dumas, Clerk
The Honorable Cheryl Jones