The FOIA and the Pandemic: New (temporary?) Provisions on “Remote” and “Hybrid” Meetings for Public Agencies

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The “budget implementer” bill that was passed in June amends Connecticut’s Freedom of Information Act (“FOIA”), preserving, at least temporarily, elements of pandemic-era Executive Orders concerning “remote” and “hybrid” meetings.  Here are the highlights.

The Continued Remote/Hybrid Meetings Option: Until April 30, 2022, a public agency (such as a school board or any of its committees) can hold meetings that are accessible to the public through 1) electronic equipment only (i.e., “remote meetings”) or 2) remote participation in conjunction with an in-person meeting (i.e., hybrid meetings”).  For these meetings, boards must use technology that “facilitates real-time public access to meetings,” such as “telephonic, video or other conferencing platforms.”

Regular Meeting Notice/Posting Requirements.  If a board intends to conduct a remote or hybrid regular meeting, it must provide at least 48 hours 1) advance written or electronic notification to each board member and 2) notice to the public, posted in its office and on its website.  Boards still must post agendas for these meetings at least 24 hours in advance; the notice/agenda must include instructions for the public to access the meeting.

Special Meetings:  A notice of a special meeting must be posted 24 hours in advance and indicate whether it will be conducted solely or in part via electronic equipment (with instructions for accessing the meeting).

Public Access For Remote Regular Meetings: If a board conducts a meeting (other than an executive session or special meeting) solely by means of electronic equipment, it must 1) provide any member of the public (upon a written request at least 24 hours in advance of the meeting) with a physical location and electronic equipment necessary to attend  the meeting in real-time, 2) record or transcribe the meeting (excluding portions held in executive session), with any transcription/recording to be posted on its website and made available to the public in the board’s office no later than seven days after the meeting and for at least 45 days thereafter; and 3) if a quorum of board members attend a meeting via electronic equipment from the same physical location, permit the public to attend the meeting in that location.  NOTE: Boards are not required to provide such access/equipment for in-person or hybrid meetings, since the public can access such meetings by merely showing up.

Public Comments: Members of the public attending remotely must be provided with the same opportunity to provide comment and participate in the meeting that they would be accorded if it was in-person.  Boards are NOT required to offer persons attending a meeting remotely the opportunity for comment if they are not required by law for persons attending in-person.

Board Member Remote Participation: Board members must be provided with the opportunity to participate in meetings remotely.  Boards are not required to adjourn or postpone a meeting if a member loses the ability to participate because of issues with that member’s electronic connection, unless the member’s participation is necessary for a quorumUnless unanimous, votes taken at a meeting at which any member participates remotely shall be taken by rollcall.  Meeting minutes must identify which members attended in-person or remotely.

Identify Yourself: Any board member or member of the public participating in a meeting conducted via electronic equipment shall make a good faith effort to state one’s name and title (if applicable) at the outset of each occasion that the person participates orally during an uninterrupted dialogue or series of questions and answers.

If Technology Fails:  A board is not required to adjourn or postpone a meeting if a member of the public loses the ability to participate because of issues with the person’s connection to the meeting.  If a meeting conducted via electronic equipment is interrupted by disconnection or an unacceptable degradation of the electronic equipment, or if a board member necessary to form a quorum loses the ability to participate because of such issues with the member’s connection, the board may (at least 30 minutes – but not more than two hours – after the interruption) resume the meeting 1) in-person, if a quorum is present in-person, or 2) if a quorum is restored via electronic equipment, solely or in part by such equipment.  The board shall (if practicable) post a notification on its website and inform attendees by electronic transmission of the expected time of resumption, or the adjournment or postponement of the meeting, and may announce at the beginning of meetings what preplanned procedures exist in the event of an interruption.

What Happens After April 30, 2022? The Connecticut Advisory Commission on Intergovernmental Relations will conduct a study and issue a report to the General Assembly by February 1, 2022 with findings and recommendations that may guide further legislative action regarding remote and hybrid meetings.  Stay tuned for further developments.

Final Thoughts:  While the new law continues much of what was in prior Executive Orders, there are important distinctions, such as having to provide (upon request) a physical location with electronic equipment necessary to attend a remote regular meeting.  The law continues to provide board members with a right to attend meetings remotely (even meetings held in-person). 

A board can still choose to conduct traditional in-person meetings (and avoid some of these new issues).  The new law does not provide boards with the ability to limit attendance at in-person or hybrid meetings, so a board holding a meeting that is at least partially in-person should plan on using facilities that would accommodate its meetings in normal times (unless capacity limits for indoor meetings are reinstated due to a worsening of the pandemic).  Finally, meetings may be subject to applicable mask requirements.

Please note: this post is adapted from an article written by the author for the September 2021 edition of the CABE Journal.  

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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