Question: How are the Open Meetings Act and FOIA impacted by municipal elections?

There is little specific mention, either in the Open Meetings Act or in the Freedom of Information Act ("FOIA"), about how the administration of these laws may be impacted during an active municipal election season. The prompt and fair application of these laws can be severely tested during a hard fought local government election.

Non-incumbent candidates for a governmental office are not subject to either of these Acts except to the extent that they interact with persons already in office. There is a general exemption under the Open Meetings Act for gatherings of either incumbent or non-incumbent individuals who are meeting to discuss issues relating to a forthcoming election. Discussions about the raising of campaign funds, campaign appearances, or general election strategy are simply not subject to the Open Meetings Act. If, however, a majority of a quorum of already elected officials were to meet to discuss campaign strategy and how they would vote on a controversial matter, the second part of that discussion would have to take place in compliance with the Open Meetings Act.

The courts are likely to give incumbent officials some leeway in discussions of the political implications of their actions if they can somehow demonstrate that it was politics, not policy, which was the central element of their meeting. Obviously, wide-ranging meetings of this nature, when "exposed" by a political opponent or a media outlet, can be used against incumbent candidates even if the officials can justify holding non-public meetings on political grounds. While not required to do so, participants at such meetings may find it advisable to take outline minutes at such meetings to demonstrate that the vast majority of the meeting was centered on discussing the course and strategy of the campaign.


Campaign literature or preliminary policy statements not publicly cited and identified by the head of the public body, are private and political rather than public documents, and would not need to be disclosed under a Freedom of Information Act request. If, however, such documents come into the possession of the municipality in final, rather than preliminary versions, they become public records subject to the requirements of the FOIA.

Probably the most significant potential for an increase in the use of the statutory "sunshine law" processes are requests by opposition candidates and their supporters for documents under the Freedom of Information Act. Any person, whether a resident of the governmental body or not, may seek a great variety of documents under the Freedom of Information Act. The governmental body is required to search out and make these documents available without being able to charge a fee for the staff time involved in the search. The only charge which can be imposed is for the cost of mechanical reproduction if the requestor asks for actual copies of documents. In order to protect against a request for the reproduction of multiple documents, a public body, hopefully under rules and procedures already in place, can require a requesting citizen to pay a deposit or even the entire reasonably anticipated charge for reproductions at the time that a request is made.

The public body should take care that requestors who ask to examine the originals of documents do not carry them away. Some security procedures should also be put in place to make certain that documents are not defaced, removed or modified.

Governmental bodies should know that a person, while being entitled to review existing public records, cannot demand that a government create new records based upon information otherwise available to the public body. For example, a citizen can ask to review all contracts for vehicles purchased by the municipality in the previous five years. That same citizen cannot demand that a list be produced of all vehicle purchases bought from out-of-state vendors if no such list exists. In short, a governmental body is obligated to share with the public documents that are in existence, but it is not required to prepare a new document containing information from other records, although the requestor is certainly entitled to go through the documents in the possession and to prepare his or her own report or compilation.

A governmental body may require that the person requesting the records clarify the nature of the request with an eye towards possibly narrowing its scope. Finally, a governmental body, usually after consultation with its attorney, is entitled to deny the request if the records requested are either subject to one of the exemptions under the Act or are categorical in nature and would be unduly burdensome to produce. Obviously, record requests cannot be prepared for one citizens group and ignored for another and all requests must be responded to within the time periods set forth in the statute. Where a request is denied, the governmental body must inform the requestor of the specific basis for the denial and of the right to appeal the denial to the head of the public body.

The last area where these statutory provisions tend to be tested during an election cycle is with regard to public comments during governmental meetings. The non "closed-session" portion of governmental meetings, where there is no statutory requirement for a public hearing, are required to be open to the public, but the public has no absolute right to speak at the meetings. Nonetheless, most governmental bodies have historically established some time during meetings when the public is allowed to address the members of the presiding board. The presiding officer of the governmental body, and the majority of the corporate authorities have the right to limit or stop such comments which exceed time limits or are abusive. Care should be taken, however, that it is not only the public comments of one's political opponents that are limited. This practice has resulted in successful lawsuits against governmental bodies and their elected officials.

Although persons attending public meetings are only given a limited opportunity to address the corporate authorities, they are permitted, under the Open Meetings Act, to take audio or video tapes of the public portions of the meetings of the governmental body. The government can establish reasonable rules and procedures for the way in which such recording is accomplished to assure that the recording does not unreasonably interfere with the operation of the public meeting. Where members of the public are permitted to address the public body in a public hearing which is required either by statute or by ordinance, the courts have held that such individuals must be given a reasonable period of time to speak and, within limits, to cross-examine witnesses who have offered actual testimony at the public hearing. A case raising these issues is now before the Illinois Supreme Court.

Violations of the Open Meetings Act can result in a criminal penalty, fine or forfeiture from office along with the invalidation of actions taken in violation of the Act. Violations of the Freedom of Information Act can result in a lawsuit filed by the State's Attorney to remove violators from office and a requirement that the legal fees of the citizen improperly deprived of access to the public information will be paid by the government which is at fault.