Peter Friedman is a Partner in our Chicago office.
Recent media reports have described potential violations of the Illinois Open Meetings Act resulting from the use of e-mails by members of Illinois public bodies. Specifically, in the context of the recent consideration and vote in Buffalo Grove on approval of an off-track betting parlor (see story), a spokeswoman for the Illinois Attorney General's Office stated that "if three or more members of that [seven-member] board are discussing business via email, it could be a problem."
Section 1.02 of the Illinois Open Meetings Act defines a "meeting" (for which public notice is required) as "any gathering, whether in person or by . . . electronic means (such as, without limitation, electronic mail, electronic chat, and instant messaging), or other means of contemporaneous interactive communication, of a majority of a quorum of the members of the public body held for the purpose of discussing public business."
There are vastly different opinions as to when an e-mail exchange triggers the requirements of the Act, and the statute lacks precision on how to define "contemporaneous" and "interactive." However, in light of the purpose of the Act (the open deliberation and action of public bodies) and the risk of criminal penalties and adverse media exposure, we continue to urge restraint when using any electronic communications outside the context of a public meeting for exchanging views on public issues among public body members.
As we outlined at our Local Government Seminar in May, we recommend following these rules of thumb:
- Avoid chat rooms.
- Confine e-mail messages to fewer than a majority of a quorum of the public body's membership when members of a public body want to discuss matters of public business informally via e-email. Thus, for a seven-member board, not more than two members of the public body should be exchanging these e-mails.
- If e-mail is used to distribute information to members of the public body, replies should be limited to the original sender of the e-mail. Do not "reply to all."
- Do not rely on the confidentiality of e-mails, in light of the broad disclosure requirements of the Illinois Freedom of Information Act, and the investigatory powers and reach of the Illinois Attorney General's office and other enforcement officials.
Holland & Knight's local government attorneys will continue to monitor the Buffalo Grove case and other developments impacting Open Meetings Act compliance issues and disputes.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
