“First Amendment Audits” Test Boundaries at Public Institutions

Public institutions have seen a recent uptick in “First Amendment audits,” where a private citizen will enter public spaces while recording video on their cell phone and typically demand documents under the Illinois Freedom of Information Act (“FOIA”). The “auditors” also often demand that public employees identify themselves while refusing to identify themselves (which they are not required to do), and they sometimes engage in more confrontational behavior while recording employees’ responses. They often later upload videos of interactions to social media websites, such as YouTube, which may generate additional records requests or complaints to the institution.

Generally, these activities are protected by the First Amendment, as well as FOIA, unless the visitor becomes physically violent or unreasonably disruptive to an employee’s ability to serve others. However, visitors must comply with reasonable, pre-established security procedures, and they are not entitled to film without permission in private spaces, such as a private office, conference room, or any classroom.

These visitors frequently request documents to verify whether the institution will comply with various requirements under FOIA, including some requirements separate from more routine processes for responding to FOIA requests. They often use their own written FOIA request forms, which public bodies are obligated to accept, and ask to access some or all of the following:

• A form to file a complaint against the institution or an employee.

• A list of documents or categories of records that the public body must immediately disclose upon request. 5 ILCS 140/3.5(a).

• Public Access Counselor training records for the FOIA Officer. 5 ILCS 140/3.5(b).

• A display at each administrative of regional office with brief descriptions of the institution, including various details specified by FOIA Section 4, and methods for the public to request information and public records. 5 ILCS 140/4.

• An index of notices of denials under FOIA. 5 ILCS 140/9(b).

• Body camera footage of the “audit” under the Law Enforcement Officer-Worn Body Camera Act. 50 ILCS 706/10-20(b). While there are limitations on the disclosure of such footage, an auditor captured on the recording is entitled to such video, with appropriate redactions, as the subject of the encounter with law enforcement.

Finally, these visitors will often demand that the responses to their requests be certified. FOIA Section 3(b) requires that public bodies certify documents “if so requested.” 5 ILCS 140/3(b).

Visitors who conduct “First Amendment audits” can have significant impacts on public institutions and employees. Please contact your Robbins Schwartz attorney with any questions about preparing for or responding to these interactions.