The Office of the Illinois Attorney General’s Public Access Counselor (PAC) has issued a decision finding that a school board violated the Open Meetings Act (OMA) when it took final action on an employment matter without identifying the employee by name.

In the case reviewed by the PAC, the school board held a dismissal hearing in closed session and then went back into open session to vote on the recommendation for the “dismissal of Employee A”.  The local media filed a request for review when the board refused to release the name of the employee.  The PAC explained that the OMA requires a public recital of the nature of the matter being considered and other information that will inform the public of the business being conducted prior to any final action by the public body.  The PAC indicated that the recital must provide sufficient information for the public to understand the effect of the board’s action before it votes on the employee discipline or dismissal.  The PAC found that the board deprived the public of meaningful information concerning the practical effect of its decision by identifying only “Employee A” and by failing to provide even basic information as to whether the board was dismissing a support staff member, a teacher, a principal, or the superintendent. This opinion is consistent with a non-binding opinion issued by the PAC in 2011, wherein the PAC found that a school board was required to identify the specific names of employees who had submitted resignations in order to provide a sufficient description of the matter being considered and the action to be taken by the board.

Because Illinois courts have yet to address this issue directly, the PAC’s interpretation of the OMA is the only guidance for school districts and special education joint agreements.  Therefore, we recommend that an employee’s name be included in the recitation when a board takes final action concerning employee discipline, resignation, or dismissal.  Also, the PAC’s decisions imply that a board may be required to name employees in other final actions that directly impact specific employees, such as hiring decisions, reclassifications, and leave requests.  If you have any questions or would like to discuss this further, contact one of our attorneys at the Flossmoor (708-799-6766) or Oak Brook (630-928-1200) office.

Effective June 19, 2013, the Illinois School Student Records Act (ISSRA) regulations are amended to provide for revised definitions of “health-related information,” “permanent record,” and “school student record,” as well as a revised definition of the responsibilities of the designated “official records custodian.”

The regulatory amendments add that “health-related information” also includes documentation regarding the acknowledgement by a student athlete and his/her parents of the school district’s concussion policy adopted pursuant to 105 ILCS 5/10-20.53 and 34-18.45.

The definition of a “permanent record” has been modified to provide that while scores on college entrance exams are included in a student’s permanent records, parents may request, in writing, the removal of any score received on college entrance examinations from the student’s academic transcript.  Accordingly, the notice requirements of the regulations have also been amended to include notification to students and their parents of the right to request removal of such scores from a transcript by submitting a written request stating the name of each examination and the date(s) of the scores to be removed.

The definition of “school student record” now also includes any information received pursuant to Section 22-20 of the School Code (report by law enforcement agency) and Sections 1-7 and 5-905 of the Juvenile Court Act of 1987 (law enforcement records transmitted to the appropriate school official by a local law enforcement agency under a reciprocal reporting system). In addition, video or other electronic recordings created and maintained by law enforcement professionals working in the school or for security or safety reasons or purposes are excluded from student records.  The regulatory amendments have revised this exclusion by providing that the content of such video or other electronic recordings may become part of a “school student record” to the extent that school officials use and maintain this content for a particular reason (e.g., disciplinary action, compliance with a student’s IEP) regarding a specific student.  Further, video or other electronic recordings which become part of a student’s records are not a public record under FOIA and will be released only in conformance with the ISSRA and FERPA.

Finally, Section 375.40(g) of the ISSRA regulations has been amended to add that the official records custodian must take all reasonable measures to protect student records through administrative, technical, and security safeguards against risks, such as unauthorized access, release or use.

In response to concerns voiced by parents and advocates about a significant decrease in Braille instruction, the U.S. Department of Education’s Office of Special Education Programs (OSEP) has issued guidance to reaffirm the importance of Braille and Braille instruction for blind and visually impaired students.

OSEP reiterates in this Dear Colleague Letter that Braille instruction is a requirement under the Individuals with Disabilities Education Act (IDEA) and that a student’s need for Braille instruction should be considered on a case-by-case basis and without undue delay.  OSEP explains that the IDEA mandates that Braille instruction be provided to a student with blindness or visual impairment unless the individualized education plan (IEP) team determines that Braille is not appropriate for that particular student.  The IEP team’s determination must be based on an evaluation, which should be thorough and rigorous and include various modalities, a data-based media assessment, and a functional visual assessment.  OSEP emphasizes that the evaluation must assess the student’s current and future needs.

OSEP explains that when Braille instruction is required to receive a free and appropriate public education (FAPE), the IEP team must ensure that systematic, regular instruction is provided by appropriately trained personnel, and that sufficient instructional time is allotted for the student to become proficient in Braille.  Further, an IEP team may not deny Braille instruction to a student due to shortages of trained personnel, availability of alternative reading media, or the amount of time needed to provide Braille instruction.  Several OSEP-funded programs and other resources available to school personnel for providing appropriate interventions, services, instruction, and materials to students with blindness and visual impairments are referenced in this Dear Colleague Letter as well.

              Over the last few months, the Illinois Appellate Court and the Illinois Attorney General have issued several opinions concerning Illinois’ Open Meetings Act (“OMA”) and Freedom of Information Act (“FOIA”).  These opinions address several important issues including the format for electronic document production, what matters may be discussed in closed session, the propriety of closed session votes on personnel matters, the interplay between the Illinois School Student Records Act and FOIA, and final action on non-agenda items.  The Appellate Court decisions are binding legal authority on other parties; the Attorney General opinions, while they may be cited as persuasive authority, are not binding upon non-parties.

             Here is a brief summary of each opinion.

ELECTRONIC DOCUMENT FORMAT

            Fagel v. Illinois Department of Transportation

             A citizen served the Illinois Department of Transportation with a FOIA request asking that it provide him with information concerning the State’s “Red Light Running Camera Enforcement System” in an electronic “Excel Format.”  The Department e-mailed a “locked” Excel document which prevented the citizen from “manipulating” the data contained in the spreadsheet.  Unsatisfied with the Department’s response, the citizen asked the Attorney General to review his request which it did.  The Attorney General sided with the Department and determined that it had complied with its obligations under FOIA. The citizen subsequently filed suit. A Circuit Court Judge determined that the Department violated FOIA and entered an order requiring the Department to provide him with an “unlocked” version of the Excel document.  The Department appealed that order.

             The Appellate Court agreed with the Circuit Court Judge and upheld the ruling noting that Section 6 of FOIA requires public bodies to respond to request by providing documents in the form requested when it is feasible to do so.  The Appellate Court decided that, because providing a locked document prevented the citizen from making full use of the Excel spreadsheet so in effect, the Department had not responded to the request.  The Court also found that it was “feasible” for the Department to provide the citizen with an unlocked version of the spreadsheet because the Department maintained the spreadsheet in an unlocked format and provided the Attorney General with an unlocked version. Finally, the Appellate Court agreed with the Circuit Court Judge that FOIA does not contain an exception to Section 6’s requirement based on a fear, real or imagined, that the information contained in the document may be “manipulated” by the recipient.

             The Department’s position was not only rejected by the Appellate Court, it proved to be expensive as well because the Appellate Court also upheld the Circuit Court judge’s award of attorney’s fees to the citizen in the amount of more than $12,000.

 THREATENED LITIGATION EXCEPTION FOR CLOSED SESSION

              Public Access Opinion 13-008

              Closed session discussions are permissible under Section 2(c)11 of OMA when a public body determines that litigation is probable or imminent.  The President of the Board of Trustees of the New Lennox Public Library District alleged that the Board violated OMA when it held a closed session to discuss three letters that it had received from the Illinois Library Employee Plan threatening to file suit if it did not receive reimbursement for claims that it had paid.  The Attorney General disagreed, determining that the letters received by the Board containing threats to file suit provided a basis for the Board to conclude that litigation was imminent or probable. Therefore, it was proper for the Board to hold a closed session meeting to discuss “strategies, postures, theories and possible consequences of potential litigation.” However, the Attorney General found that the Board violated the Act because it failed to enter into the closed session minutes the basis for its finding that litigation was probable or imminent.

               Public Access Opinion 12-013 

              A citizen alleged that the Finance Committee of the Washington County Board violated OMA when it held a closed session discussion of its landfill ordinance after receiving a letter from a company questioning the legality of the ordinance, inviting the Board to meet to discuss it and, stating that if the matter is not resolved, the company “may” file suit.

               The Attorney General concluded that the closed session discussion violated Section 2(c) 11 of the Act because the Board did not have a reasonable basis to believe that litigation was imminent or probable as the letter indicated that litigation could possibly be filed as opposed to expressing a definite intent to file a lawsuit.  The Attorney General also opined that, even if there was a reasonable basis for believing that litigation was imminent or probable, the Board did not discuss litigation strategies, theories or probable consequences.  Instead, it discussed the substance of the ordinance and whether or not it should meet with the company.

 FINAL ACTION IN OPEN SESSION

             Lawrence v. Williams

            A three-member school district electoral board held a hearing on objections to candidate petitions and voted to sustain the objections.  After the meeting where this vote was taken but before the board’s next meeting, a written opinion was prepared and signed by all three members.  However, at the next and final scheduled meeting of the board where the written decision was issued, only one member was present, short of a quorum.  The Election Code requires that electoral board decisions be served upon the parties in open meetings.  The Appellate Court voided the electoral board’s decisions, not only because of the Election Code violation, but also because the issuing of the written decision was a legally mandated “final action.”  Under OMA, such a final action could only take place at a public meeting where a quorum is present.

              Public Access Opinion 13-006

              A citizen alleged that the Edgar County Airport Advisory Board violated OMA when it conducted a straw vote to determine who would fill a Board vacancy. The Advisory Board discussed filling the vacancy and identified four people who were interested in being appointed to the position. Thereafter, it distributed paper ballots with the names of the four candidates to the Advisory Board members and asked them to circle their choice and place the ballots in a coffee can. After counting the ballots the person with the most votes received the recommendation to the County Board for appointment to the Board.

              The Attorney General concluded that this process violated OMA.  The Attorney General determined that despite the fact that the Advisory Board’s straw vote was nonbinding, it still constituted a “final action” within the meaning of OMA inasmuch as the County Board adopted the recommendation. Since the straw vote was a “final action,” the Advisory Board members were obligated to reveal their choice to the public and make a record of how each of them voted.

               Public Access Opinion 13-007

               An individual alleged that the Board of Education of the Springfield Public School District violated OMA when six of its seven members signed an undated separation agreement with the District’s Superintendent in closed session without any public discussion as to its terms and before the Board publicly voted on it. The School Board contended that it acted properly because it ultimately held a public vote approving the agreement.

               The Attorney General decided that the execution of the separation agreement in closed session was a “final action” and that Section 2(e) of OMA prohibits a public body from taking final action on a matter in closed session without a public recital of the matter under consideration. The Attorney General also concluded that a violation of Section 2(e) of the Act is not cured by the fact that the Board subsequently ratified the closed session action by through a public vote.

                 Public Access Opinion 13-003

               The Illinois Federation of Teachers alleged that Western Illinois University Board of Trustees violated OMA when it voted to terminate a tenured faculty member in closed session.  Prior to the closed session vote, the Board engaged in closed session discussions during which one member questioned whether the vote had to take place in open session.  Despite these concerns, the Board’s vote took place in closed session.

               The Attorney General decided that the University did indeed violate the Act.  While the Board was entitled to discuss “appointment, employment, compensation, discipline, performance, or dismissal of specific employees,” the vote to terminate the faculty member was a “final action” that was required to take place in open session in accordance with Section 2(e) of OMA.

 AGENDA NOTICE SPECIFICITY

              Public Access Opinion 13-002

              A citizen complained that Chicago Park District Board violated OMA when it voted to increase the price of admission to the Art Institute of Chicago without any reference in its agenda to the fact that this matter would be voted on. The Attorney General agreed that it did.

              Noting that Section 2.02(c) of OMA requires public bodies to post board meeting agendas listing the items which it intends to consider at the meeting not less than 48 hours before the meeting takes place, the Attorney General determined that the vote to increase the admission fee violated OMA because the agenda failed to contain any reference to the “general subject matter” of fee increases.  The Attorney General also rejected the Park District’s contention that the fact that a District Board Committee listed the admission fee increase on its agenda constituted substantial compliance with Section 2.02(c) of the Act.

 REDACTING NAMES FROM STUDENT RECORDS

               Access Opinion 12-014

               A citizen alleged that Pleasantdale School District 107 violated FOIA when it failed to comply with her request for a “raw data for the current 4^th graders’ Math scores on the 2011 Fall Illinois Test for Basic Skills” with the names of individual students redacted. The request also asked the School District to color code the placement level of each child in an Excel or Word document.

              The Attorney General determined that the School District violated Section 3 of FOIA.  In doing so, the Attorney General rejected the School District’s claim that it did not have the records the citizen sought and that it would have to create a new document to comply with the request.  The Attorney General noted while FOIA does not require the School District to compile data that it does not ordinarily keep, redacting the names of the students and scrambling information does not constitute the creation of a new document.

              The Attorney General also rejected the School District’s contention that the requested test score data was automatically exempt from disclosure under FOIA because its release would constitute a violation of the Illinois School Student Records Act. The Attorney General concluded that once the identifying information has been redacted, the document is no longer a “student record” and must be disclosed.

 *          *          *

              As you can see, the requirements of OMA and FOIA are numerous and nuanced. Nevertheless, public bodies are required to comply with them and face significant consequences should they fail to do so. If you have any questions, contact one of our attorneys at our Flossmoor Office at 708-799-6766 or our Oak Brook Office at 630-928-1200.

          Pursuant to law, every school board must hold its organizational meeting no later than 28 days after the consolidated election.  Further, new board members cannot be seated until after the official canvass of the results by the county election authority.  The deadline for the canvass is not until 21 days after the election.  Therefore, the effective window period to hold all school board organizational meetings this year begins no earlier than Tuesday, April 30, and ends no later than Tuesday, May 7.  If your Board does not have a regular meeting scheduled during that week-long period, a special meeting must be called.

          The only tasks which must be performed at the organizational meeting are these:

1)    Swear in and seat new board members.

2)    Elect board officers, including president, vice president and secretary.

3)    Set the board’s regular meeting schedule.

Other business may be, but need not be, conducted at the organizational meeting.

          If you have any questions about organizational meetings or the transition to new board terms, please contact one of our attorneys at 708/799-6766 (Flossmoor) or 630/928-1200 (Oak Brook).

NEW LEGAL GUIDANCE AND LAW ON STUDENT ISSUES

            There have been several interesting developments in student-related legal requirements in the past month that school districts and special education cooperatives need to know.  They are described below, in order of their publication.

I.          ISBE GUIDANCE ON TMC AND EARLY CHILDHOOD TRANSITION 

On January 15, 2013, the Illinois State Board of Education issued notification of revisions to the IDEA proportionate share timely and meaningful consultation (“TMC”) time lines.  In the past, school districts have been required to hold TMC meetings in the fall of each school year with representatives of private elementary and secondary schools and home schools regarding the use of proportionate share IDEA funds for services to eligible students with disabilities who attend such schools. In an attempt to better budget proportionate share expenses and to prevent delays in providing services, ISBE has revised the TMC timelines for 2013-2014 as follows:

■          April 2013:  ISBE will release estimated proportionate share calculations based on the March, 2013 FACTS child count data.

■          May 31, 2013:  Final date for districts to convene TMC.

■          June 15, 2013:  TMC documents due to ISBE.

■          July 1, 2013: Date to start filing FY 2014 IDEA grants, to include proportionate share expenses.

■          August 2013: ISBE releases final proportionate share calculations.

The ISBE also issued a guidance document titled Early Intervention to Early Childhood Transition Frequently Asked Questions (January 2013), which answers 21 questions concerning early childhood transition meetings, evaluations, services, and placement.  Some highlights from this FAQ include the following:

■          The time frame for conducting the transition planning conference for children moving from IDEA Part C (Early Intervention) to Part B programming is between two years, three months and two years, nine months.  The conference must be completed 90 calendar days before the child’s third birthday.

■          As of July 1, 2012, if a child is referred to Child and Family Connections less than 45 days before his or her third birthday, the CFC may send the child directly to the local school district for evaluation.

■          If the child’s third birthday is during the summer, the transition planning conference should take place at least 90 calendar days before the end of the school year to ensure that an IEP is in place by the child’s third birthday.

■          A child who will turn three during the school year may enter school at the beginning of the school year as a two-year-old with an IEP, but may not receive both Part C Early Intervention services and Part B IDEA services at the same time.

■          The IEP team must consider a general education preschool setting as the first option for placement, in consideration of the least restrictive environment.  General education preschool options may include park district programs, community preschools, blended programs, Head Start, child care programs and programming at home.

II.         ERIN’S LAW REQUIRES DISTRICTS TO PROVIDE SEX ABUSE AWARENESS 

Effective January 24, 2013, Public Act 97-1147, known as “Erin’s Law,” requires Illinois school districts to add age-appropriate sexual abuse and assault awareness and prevention education to the health curriculum for pre-kindergarten through 12th grade students.  The purpose of Erin’s Law is to equip children with awareness of sexual abuse so that they report abuse and, ultimately, to reduce victimization. “Erin,” the law’s namesake, was a victim of childhood sexual abuse but was unable to report her suffering until many years later.  Her public campaign for awareness has resulted in Erin’s Law being passed in numerous states.  A previous Illinois Public Act established the Erin’s Law Task Force.  The Task Force’s May 2012 Executive Summary, available on the Illinois State Board of Education website, at www.isbe.state.il.us/reports/erins-law-final0512.pdf, sets forth core components of effective and comprehensive child sexual abuse prevention programs and provides contact information for statewide resources.  The Advocacy Network of Illinois is developing a curriculum, including a “Happy Bear Mascot,” to teach young children about good and bad touch and reporting uncomfortable situations.  The Task Force Executive Summary also provides additional references and resources for building curriculum.

III.        “DEAR COLLEAGUE LETTER” ON PARTICIPATION OF STUDENTS WITH DISABILITIES IN EXTRACURRICULAR ATHLETICS 

On January 25, 2013, the U.S. Department of Education’s Office of Civil Rights (OCR) issued guidance clarifying school districts’ responsibilities under Section 504 to afford students with disabilities an equal opportunity to participate in extracurricular athletics.  In addition to providing a summary of school districts’ obligations under Section 504 and its regulations, OCR reminded districts that the Section 504 regulations require them to provide an equal opportunity for students with disabilities to participate in nonacademic and extracurricular services and activities, which include but are not limited to, competitive athletics.  OCR clarified that a school district’s obligations under Section 504 and its regulations supersede any rule of any association (e.g., the IHSA), organization, club, or league that would render a student ineligible, or limit a student’s eligibility, to participate in any aid, benefit, or service on the basis of disability.

OCR also explained that simply because a student is a “qualified individual” protected under Section 504 does not mean that the student must be allowed to participate in any selective or competitive program offered by a school district.  Rather, a district may require that a student with disabilities meet criteria of skill level or ability in order to participate in the program, so long as such criteria are not discriminatory.  OCR reiterated the long-standing Section 504 requirement that school districts must provide reasonable accommodations, aids or services necessary for students with disabilities to have an equal opportunity to participate in athletics, unless doing so would result in a fundamental alteration to the program or activity.  While a school district may adopt legitimate safety standards for a student’s participation in an athletic program or activity, the district may do so only after considering whether a student with disabilities can participate safely if provided reasonable accommodations.

School districts were cautioned against making decisions about programs, activities and capabilities of individual students with disabilities based on presumptions, generalizations, or stereotypes about specific disabilities.  OCR also encouraged districts to work with the community and athletic associations in integrating students with disabilities to the maximum extent appropriate for a student and developing opportunities to include students with disabilities in extracurricular athletic activities.

IV.       REVISED IDEA REGULATION REGARDING PARENT CONSENT FOR ACCESS TO MEDICAID FOR IEP SERVICES 

On February 14, 2013, the U.S. Department of Education published an impending revision to the IDEA implementing regulations.  Effective March 18, 2013, 34 C.F.R. §154(d) is amended to permit parents to provide a one-time written consent for their district to access public benefits or insurance (e.g., Medicaid) to pay for certain IEP services, and to require districts to provide annual written notification of parents’ rights in this area.  Until now, school districts and special education cooperatives were required to secure parent consent every time access to public benefits or insurance was sought.  The regulatory revisions are designed to make it easier for districts and cooperatives to access public benefits while safeguarding parents’ rights at the same time.

Pursuant to the new regulations, before accessing the parents’ or child’s Medicaid benefits for the first time (if, and only if, a parent agrees to do so), a district must obtain a one-time written consent from the parents, after providing the annual written notification statement.  The one-time written consent must specify:

■          The personally identifiable information that may be disclosed (e.g.,records or information about the child’s services);

■          The purpose of the disclosure (e.g., billing for services);

■          The agency to which disclosure may be made (e.g., Medicaid); and

■          That the parent understands and agrees that the district or cooperative may access the child’s or parent’s public benefits to pay for the child’s services.

The revised regulation also requires districts to provide annual written notification to the parents (1) before accessing Medicaid for the first time and obtaining the parents’ one-time written consent, and (2) annually thereafter.  The annual written notification must be in a language understandable to the general public and in the native language of the parent unless it is clearly not feasible to do so, and must include the following:

■          A statement of the parental consent provisions in the IDEA regulations;

■          A statement of the “no cost” provisions in the IDEA regulations;

■          A statement that the parents have the right to withdraw consent to disclosure of their child’s personally identifiable information to the agency responsible for the administration of the State’s public benefits or insurance program (e.g., Medicaid) at any time; and

■          A statement that the withdrawal of consent or refusal to consent to disclose personally identifiable information to the agency responsible for the administration of the State’s public benefits or insurance program (e.g., Medicaid) does not relieve the child’s district of its responsibility to ensure that all required IEP services are provided at no cost to the parents.

The annual written notification may be mailed to the parents, e-mailed, provided at the student’s IEP meeting, or provided by some other means.  A district may determine when the annual written notification is provided to parents each year.

If a district already has written parental consent to access public benefits or insurance at the time the new regulation takes effect, the district must provide the annual written notification but need not obtain a new written consent unless and until there is a change in the services the district provides to the child.  Furthermore, the district is not required to obtain consent again when a child transfers schools within the district.

If you have any questions about these new guidance documents or legal requirements, please call one of our attorneys at 630/928-1200 (Oak Brook) or 708/799-6766 (Flossmoor).

In July 2012, Section 226.840 of the Illinois State Board of Education special education regulations was amended to revise the qualifications of school personnel who may conduct medical reviews.  Last week the ISBE issued Guidelines: Frequently Asked Questions About Qualifications Required of Personnel Conducting Medical Reviews.  The Guidance defines “medical review,” describes how a medical review should be conducted,  specifies who may conduct a medical review, clarifies the role of the certified school nurse in the IEP process, and provides suggestions on how school districts can address shortages of certified school nurses.

• Medical Review Defined:   ISBE defines a “medical review” as activities resulting in a complete review of a student’s medical and health status to determine whether a health condition is adversely affecting the student’s educational performance.  The medical review should help determine if the student requires special education or related services such as school nursing services.
• Conducting the Medical Review:  According to ISBE, a medical review should consist of:
  • Collecting parent, student and teacher perceptions and concerns about the student’s health.
  • Obtaining objective health information from medical or hospital records.
  • Reviewing the data to determine whether additional information is needed (and obtaining that information, if necessary).
  • Reviewing all data to determine what, if any, appropriate nursing services and accommodations or modifications the student requires.
  • Reporting any educationally relevant medical findings to the IEP team.  In making these determinations, the certified school nurse is exercising instructional judgment or conducting an educational evaluation.
• Qualifications to Conduct the Medical Review:   Beginning July 1, 2013, only the following personnel, including grandfathered, non-certificated personnel, may conduct a medical review:
  • A School Nurse (defined as any registered professional nurse who holds a school service personnel certificate with an endorsement in school nursing, or any non-certificated registered professional nurse who was employed in the school district of current employment before July 1, 1976); or
  • A Physician licensed to practice medication in all of its branches; or
  • A Registered Nurse with a bachelor’s degree or higher, or an Advanced Practice Nurse.
•  Role of the Certified School Nurse in the IEP Process:  ISBE indicates that the certified school nurse should participate in the IEP process as follows:
  • Assist in IEP development;
  • Integrate any needed school nursing services into the student’s academic or functional goals;
  • Recommend educational interventions, modifications or accommodations;
  • Provide or delegate (as appropriate) nursing interventions;
  • Recommend health-related goals, including frequency of progress monitoring;
  • Recommend specific school health services and school nursing services; and
  • Write progress reports and evaluate the effectiveness interventions.

The Guidelines only reference the IEP process; however, we recommend that school districts and special education cooperatives follow the amended ISBE regulation and the new Guidelines for medical reviews and planning meetings under Section 504 as well.

If you have any questions, or need assistance revising your policies or procedures to conform to the amended ISBE regulation and new Guidance, please call one of our attorneys at 630/928-1200 (Oak Brook) or 708/799-6766 (Flossmoor).

Yielding to requests from municipal clerks, school board secretaries, and other local government officials, the General Assembly has acted quickly during its fall veto session to provide one-time relief to those offices which did not wish to stay open on Christmas Eve in order to accept candidate petitions for the April 9, 2013, consolidated election.  Senate Bill 3338, signed into law by Governor Quinn as Public Act 97-1134, changes the filing deadline only for this year from the 106^th day before the election (Monday, December 24) to the 104^th day before the election (Wednesday, December 26).  Because the only day in which offices are mandated by law to stay open during the election petition filing period is the final one, district offices may now be either open or closed on Christmas Eve, according to the district’s discretion.  But the office must be open until 5:00 p.m. on December 26 to accept candidate petitions.

Of course, this change may be more beneficial to municipalities, which are generally open more days during the holiday season and were planning to have their offices open on December 26 anyway.  For school districts which may close their offices for certain days while the students are off, the effect of this legislative solution may be simply to exchange one inconvenience for another, and on short notice.  In any event, this change applies only to the current election cycle.  Whether the General Assembly comes up with a long-term solution remains to be seen.

            A few other things should be clarified:

• The beginning of the filing period has not been changed.  This year, the first day for filing is still Monday, December 17.
• While the office must stay open until 5:00 p.m. on December 26, there is no prescribed beginning time.  Thus, a district may not open until, say, 1:00 p.m. or even 3:00 p.m. on that final day for filing.  But we do recommend that you clearly publicize whatever those hours are at the district office and on your website.
• The time period for filing objections may be effectively pushed back.  By law, the deadline for filing objections is the fifth business day after the deadline for filing petitions and that deadline has now been pushed back.  The issue of whether the “business days” to count are those of the State or might be those of the local district has been the subject of some discussion.  Our opinion is that you count only the days when the local district is actually open for business.  In any event, we strongly advise that you clearly publicize which five days, and for what hours, the district office will be open to accept objections.

If you have questions about any of this, please contact one of our attorneys at 630/928-1200 (Oak Brook) or 708/799-6766 (Flossmoor).

On October 3, 2012, an Illinois Appellate Court issued a decision which should serve as a warning to public school districts asserting questionable objections under the Illinois Freedom of Information Act (“FOIA”).  In Rock River Times v. Rockford Public School District 205, the Appellate Court affirmed the trial court’s ruling denying the requestors’ prayer for attorney’s fees in FOIA litigation against District 205, while at the same time upholding the Circuit Court’s imposition of a civil penalty in the amount of $2,500 against the District.  The Appellate Court’s decision makes it clear that if a school district wishes to assert exemptions to document disclosure under the FOIA, it will not be afforded multiple opportunities to do so.

On August 26, 2010, the Rock River Times and its reporter, Joe McGhee, served the Rockford School District with a FOIA request for a letter written by a principal in response to the District Superintendent’s “separation of employment” letter.   The District initially claimed that the letter was exempt from disclosure because it fell within the Act’s exemptions for “personal privacy” and the “examination data for qualifications for employment”.  The State’s Freedom of Information Act Public Access Counselor (PAC) initially rejected the District’s claim under the “personal privacy” exemption but failed to address the second ground.  In a separate ruling, the PAC rejected the District’s examination data exemption claim and ordered the District to release the letter.

The District, in a September 29, 2010, letter, “expressed its willingness” to rethink its denial of the request.  In a letter dated October 8, 2010, the District acknowledged that the previously claimed exemptions did not prohibit disclosure of the letter.  However, instead of releasing the letter, the District asserted a new basis for denying the request−that the letter was exempt because it constituted an adjudication of an employee grievance or a disciplinary case.

The PAC advised the District that it would consider the new claim.  However, the newspaper and reporter disagreed with the PAC’s decision to consider new exemptions and filed suit alleging that the District willfully and deliberately violated the FOIA.  They asked that the Circuit Court impose monetary penalties and award them attorney’s fees based upon the District’s conduct.  Once the suit was filed, the PAC told the District that it would no longer consider its new grounds for exemption.  Prior to any adjudication on the complaint by the Circuit Court, the District relented and turned over the letter alleging that it was doing so based upon a “verbal opinion” it received from the PAC.   Notwithstanding the fact that the letter was disclosed, the Circuit Court decided to impose monetary sanctions against the District in the amount of $2,500 but denied the prayer for attorney’s fees.  Both sides appealed the Circuit Court’s order.

The Appellate Court affirmed the Circuit Court’s ruling.  It determined that the 2010 amendments to the FOIA made it clear that the recovery of attorney’s fees is only permissible when the disclosure of the documents sought is achieved through an order adjudicating the matter in favor of the Plaintiff.  In this case, since the Plaintiff received the documents through the voluntary action of the District, an award of attorney’s fees was not permissible as a matter of law.

The Appellate Court further determined that the Circuit Court correctly found that the District willfully and deliberately violated FOIA and, therefore, sanctions were warranted.  The Appellate Court seized upon the fact that, after the PAC rejected the District’s claims of exemption and directed release of the letter, the District asserted a brand new ground for withholding the letter.  The Appellate Court determined that nothing in FOIA permits different exemptions to be raised on numerous occasions by a public body and that the District’s attempt to do so was nothing more than an attempt to circumvent the Act.  To make matters worse, it agreed with the Circuit Court that the District’s contention that it released the letter based upon a “verbal opinion” issued by the PAC was “resoundingly unconvincing.” Given all of this, the Appellate Court concluded that the Circuit Court correctly determined that the District deliberately embarked on a course of conduct to avoid disclosure of the letter regardless of its statutory obligation to do so.

The Rock River Times decision has two important lessons for school districts, public bodies and their lawyers.  First, all claims of exemptions to disclosure must be asserted at one time and within the legally mandated time frame for responding to a FOIA request.  The courts will frown upon a “moving target” approach to the presentation of exemptions.  Second, recipients of FOIA requests should be mindful that when it comes to dealing with the PAC, honesty truly is the best policy.  It does not help to misrepresent facts to a court concerning the PAC to justify a violation of the FOIA.

If you have any questions about the case or your obligations under FOIA, please contact our attorneys at (630) 928-1200 (Oak Brook) or (708) 799-6766 (Flossmoor).

Important changes to the parameters within which public schools may acquire and use information contained in law enforcement records about students who have been arrested and/or charged with criminal offenses are on the horizon.  Public Act 97-1104, which takes effect on January 1, 2013, amends the Illinois School Code and Juvenile Court Act to allow law enforcement officials to provide school districts with information that can be used to maintain and enhance school safety and may lead to the provision of services to students who run afoul of the law.

School Code Changes

The new law amends the School Code to make it mandatory that all courts, law enforcement agencies of the State of Illinois and its political subdivisions report to the principal of any Illinois public school any time a child enrolled in that school is detained under the Juvenile Court Act, for any criminal offense, or for any violation of any municipal or county ordinance. The report to be provided to the principal must contain the following information:

• the basis for detaining the child;
• the events that led up to the child’s detention and;
• the status of the proceedings.

Law enforcement officials must update the report, as appropriate, to keep the principal aware of the status of the judicial proceedings. Principals who receive law enforcement reports under this provision must keep them separate and apart from the student’s “official school record,” and the reports do not constitute public records. The information obtained by the principal may be used only by “a school official or school officials who the school has determined have a legitimate educational or safety interest to aid the proper rehabilitation of the child and to protect the safety of students and employees in the school.”

Juvenile Court Act Changes

This new law also amends the Juvenile Court Act to comport with the changes to the School Code governing the dissemination and use of law enforcement reports. Further, the list of persons and agencies entitled to access to law enforcement reports about a child taken into custody on or before his/her 17 th birthday is expanded to include “appropriate school officials,” if a law enforcement officer or agency believes there is an imminent threat of physical harm to students, school personnel, or others who are present at the school or on school grounds. The Act makes it clear that not all school personnel may have unlimited access to these reports, however. Mirroring the changes to the School Code, the new provisions of the Juvenile Court Act restrict inspection and copying of the reports to “a school official or officials who the school has determined have a legitimate educational or safety interest by a local law enforcement agency under a reciprocal reporting system with respect to a minor arrested or taken into custody for any one of a series of serious offenses,” which include violation of the Illinois Controlled Substance Act, the Harassing and Obscene Communications Act, and “forcible felonies” under the Criminal Code.

The Act also makes other noteworthy amendments to the Juvenile Court Act. Law enforcement records related to the arrest or detention of a minor for specifically enumerated offenses before or on their 17 th birthday may be released to select school district personnel if the law enforcement agency or officer believes that there is an imminent threat of physical harm to students, school personnel or others who are present in the school or on school grounds. The reports obtained from law enforcement officers or agencies are to be kept in a separate file, shall not be made a part of the child’s school record, and are not a public record. If law enforcement agencies and appropriate school officials conclude that it is in the best interest of the arrested or detained student, referral to school- or community-based services may be made, including a determination of eligibility for special education services or drug or alcohol prevention or treatment programs. Finally, if a child is the subject of an ongoing police investigation that is directly related to school safety, law enforcement agencies or officials may share the information contained in law enforcement reports with select school officials verbally but may not provide actual copies of their reports. School officials entitled to receive verbal information from ongoing investigative reports may reduce what they have learned to writing, but must keep their written summary separate from the child’s official record and shall not consider it a part of the child’s official record or a public record.

Public Act 97-1104 presents a new and important opportunity for schools and law enforcement agencies to communicate for the purpose of ensuring that educators are kept abreast of the status of school children involved in the juvenile or criminal justice systems. These amendments to the School Code and Juvenile Court Act seek to strike a balance between the need to better protect safety in schools, the maintenance of confidentiality of student records, and the interests of court-involved students. We recommend that these new provisions be incorporated into any reciprocal reporting agreements your district has with local law enforcement.

If you have questions concerning these impending changes to the law or their impact on your policies and procedures on reciprocal reporting or student records, please contact one of our attorneys in Flossmoor (708-799-6766) or Oak Brook (630-928-1200).