FOREWORD

It is public policy in Illinois that all persons are entitled to full and complete information about the affairs of government and the official acts and policies of public officials and public employees, and that the actions and deliberations of public bodies be conducted openly. See 5 ILCS 120/1; 5 ILCS 140/1. The legislature has declared that "access [to government records] is necessary to enable the people to fulfill their duties of discussing public issues fully and freely, making informed political judgments and monitoring government to ensure that it is being conducted in the public interests." 5 ILCS 140/1. These policies are reflected in the legislative intent statements preceding Illinois' Open Meetings Act, 5 ILCS 120/1 to 6, and Freedom of Information Act, 5 ILCS 140/1 to 11.

An Open Meetings Act has existed in Illinois since 1957, and a number of amendments over the years have served to widen its scope and to effectively overrule cases that restricted notice requirements and relief available for violations. As for records, Illinois acknowledges the common law right to inspect and copy records, People ex. rel. Gibson v. Peller, 34 Ill. App. 2d 372, 374-75, 181 N.E. 2d 376, 378 (1st Dist. 1962). The state has had a State Records Act, 5 ILCS 160/1 to 26, since the late 1800s, but the 1984 FOIA was designed to serve as the focal reference statute for open records questions. The FOIA does not nullify other case and statutory law regarding records, but the Legislature declared it to be the exclusive state statute on freedom of information, except to the extent that other state statutes create additional restrictions on disclosure of information or to the extent that other state laws create additional obligations for disclosure of information. 5 ILCS 140/1.

A lengthy statement of intent precedes the FOIA: The Act is not intended to be used to violate individual privacy, to further commercial enterprise, or to disrupt the day-to-day workings of any public body. It is not intended to create an obligation on the part of any public body to maintain or prepare any public record that was not maintained and prepared by it at the time the Act became effective, except as otherwise required by applicable local state or federal law. Restraints on information access are to be regarded as limited exceptions to the general rule that the people have a right to know the decisions, policies, procedures, rules, standards and other aspects of government activity that affect the conduct of the government and the lives of its people.

The legislative history of the FOIA reflects the explicit intention that case law construing the federal Freedom of Information Act is to be used in Illinois to interpret the Illinois Act. Roulette v. Department of Central Mgmt. Servs., 141 Ill. App. 3d 394, 400, 490 N.E. 2d 60, 64, 95 Ill. Dec. 587, 591 (1st Dist. 1986). The Act applies to all disclosure requests initiated after the effective date of the Act even if the requested records were prepared or received prior to that date. See Carrigan v. Harkrader, 146 Ill. App. 3d 535, 496 N.E. 2d 1213, 100 Ill. Dec. 148 (3rd Dist. 1986).

An agency may not deny access to records on grounds that they contain confidential or non-disclosable information; the agency must delete the confidential and non-disclosable information and disclose the remainder of the record. See 5 ILCS 140/8.The first rule of thumb that every person seeking information should follow is this: Read the statutes. They are written in reasonably clear language, and most questions do not require a lawyer's help to interpret.

With respect to open meetings, city councils, county boards and school districts have a tendency to invoke the "litigation" exception to the Open Meetings Act at any opportunity. Case law and Attorney General opinions make it clear that this exception has specific limitations, which are discussed below, and persons seeking information should be sufficiently aware of those limitations to ask questions in an effort to determine whether the exemption is being invoked legitimately.

The authors, as counsel to the Illinois Press Association, Illinois Broadcasters Association and Illinois News Broadcasters Association, provide advice to journalists on a daily basis. There is no such thing as a "minor" violation of the Open Meetings Act. Each violation, no matter how "minor" or technical, can be used as a tool to educate public officials about the Act and the proper application of the Act.

This outline is intended to be a survey of the Open Meetings Act and the Illinois FOIA. The case law included here is intended to address the most important, general principles used to interpret the statutes. Illinois has a large body of case law involving disputes over open records, and a somewhat smaller collection of case law addressing open meetings. Many of the older cases are no longer good law because of subsequent amendments. This outline does not purport to be an exhaustive treatment of all case law in Illinois addressing open meetings and records questions, but it is hoped that it will provide persons seeking information with a sound knowledge of the basics and the ability to ask informed questions when faced with a closed meeting or a denial of a record request.