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Illinois School Board Journal - ARCHIVES
November-December, 2003
ASK THE STAFF:
School boards should prepare for verbatim recording
By Melinda Selbee
Melinda Selbee, IASB general counsel, answers this issue's "Ask the staff" question. Contact her at mselbee@iasb.com
Question: Our board knows that the new verbatim record legislation takes effect January 1, 2004, but what exactly will we need to do?
Answer: The recent amendment to the Open Meetings Act (5 ILCS 120/2.06, as amended by P.A. 93-523) requires all public bodies to keep a verbatim record of their closed meetings in the form of an audio or video recording. It also mandates a semi-annual review of these recordings and specifies when they can be destroyed.
To comply, school boards should disaggregate the recording requirements and assign the steps to specific officials, either in board policy and/or board procedure, rather than informal practice. For example, the IASB sample policy and procedure assign the superintendent to have a recording device at every closed board meeting and to find a secure storage location. They also assign the board president the task of convening the closed meeting and limiting discussion to the topics in the motion to go into a closed meeting. The board secretary is responsible for recording all closed meetings and, after a closed meeting, for labeling the recording and placing it in the secure location.
School boards also need to decide how to produce their verbatim record - audio or video. The IASB sample policy and procedure use audio recording because audio is less invasive than video recording. In addition, producing an audio recording is generally less complicated and less expensive.
Because the recordings contain confidential material, they must be protected against intentional and unintentional disclosure. Secure, locked storage is essential; for efficiency, storage should be somewhere close to the board's usual meeting room. In addition, whoever is assigned to the recording task, must avoid any delay in getting it into storage. For instance, having a tape travel around in the backseat of a car is dangerous.
At least semi-annually, boards must review the closed session minutes and verbatim recordings and decide whether a need for confidentiality still exists. Verbatim recordings should remain confidential if disclosure would violate state or federal privacy or confidentiality requirements. While no one law contains all these privacy or confidentiality requirements, the Illinois Freedom of Information Act (5 ILCS 140/1) is a good starting place. The section exempting records from public disclosure is a partial list of those interests. Closed meeting verbatim recordings concerning the following should not be disclosed: a named student; an employee's or applicant's personnel file and personal information; school security plans; and communications between the board and its attorney.
In deciding continued confidentiality status, board members should consider: the superintendent's recommendation; the recommendation of the attorney representing the district; opinions of other board members; and whether the recording, if transcribed, would be exempt from public disclosure under the Illinois Freedom of Information Act.
Verbatim recordings of closed meetings may be destroyed after: 18 months have passed since they were made; and the board approves the destruction of the particular recording; and minutes of the particular closed meeting have been approved. The decision to destroy a recording does not depend on the recording's confidentiality status. Boards are not required to listen to the verbatim recordings before determining whether to destroy them. If these conditions are fulfilled, verbatim recordings may be destroyed without notifying a records commission or the state archivist.
The amended Open Meetings Act does not limit how a board may use the verbatim recordings of its closed meetings. But board members should not use the recordings to confirm or dispute the accuracy of recollections. This may only escalate intra-board disputes of who-said-what.
Even though a school board believes a recording requires confidential treatment, it may be subject to disclosure. Although the verbatim record is not open to public inspection, nothing in the amended Act protects public bodies from having to disclose closed meeting verbatim records in a lawsuit, like a challenge to a student expulsion or a competitive bid selection. In a civil or criminal action to enforce the Act, a judge may examine the verbatim recording privately to determine whether a public body violated the Act and/or what portions, if any, may be used as evidence. In actions brought for noncompliance, a court may edit any information that qualifies under attorney-client privilege.
The penalties for failing to comply with the Open Meetings Act remain unchanged. A civil action may be brought and, if the court finds a violation, relief may be granted as the court deems appropriate, including ordering the public body to make minutes available, declaring null and void any final action taken at a closed meeting, and attorney fees. In addition, a criminal action may be brought charging "any person" with violating the Act punishable as a Class C misdemeanor.
Board members may feel uncomfortable being recorded during closed school board meetings. Some may feel more inhibited expressing themselves. But limiting open, frank discussion was not the intention of the verbatim recording requirement. Hopefully board members will continue to feel comfortable expressing their preliminary thoughts and opinions.