Illinois Appellate Court Issues New Ruling Concerning the OMA and FOIA
Early this year, the Illinois Appellate Court issued an opinion responding to challenges asserted under the Open Meetings Act (OMA) and the Freedom of Information Act (FOIA). The Appellate Court held that the Village of Oak Brook improperly asserted the collective negotiations and probable or imminent litigation OMA exceptions to enter closed session. The Court also reversed the lower court’s finding that the public body was required to disclose potentially privileged attorney-client communications in response to a FOIA request for closed session meeting recordings.
At issue was a public hearing held by the Village to consider its proposed budget for the coming year. The Village was considering two competing budgets, one of which would have significant impact on the compensation and staffing levels for Village firefighters. The Village forecasted that one version of the budget, if approved, would be met with great objection from the firefighters’ union. The Village board entered closed session, citing the collective negotiations and the pending or imminent litigation OMA exceptions. The board then discussed specific matters in closed session with its attorney. Following the meeting, the Village received a FOIA request from the union seeking the video and audio recordings of its closed session meeting, in addition to all documents referenced during the closed session discussions. The Village denied the request, citing Section 7(1)(m) of the FOIA, which exempts records subject to the attorney-client privilege from disclosure, among other various exemptions. Following the denial, the requester filed a lawsuit against the Village, claiming the Village violated the OMA by improperly entering closed session and the FOIA by refusing to produce the requested records. The circuit court found for the requester and the Village appealed.
The Appellate Court affirmed the circuit court’s decision that the Village improperly entered closed session in violation of the OMA. The Court held that Section 2(c)(2) of the OMA, which permits closed session to discuss collective negotiations, did not apply because there was no active or imminent collective bargaining taking place when the Village held its closed meeting. The Court found it impermissible for the public body to predict that the union would demand to bargain over the budget impact and use that as a basis to enter closed session under the “collective negotiations” exemption. The Court also found the Section 2(c)(11) OMA exception, permitting closed session to discuss probable or imminent litigation, inapplicable. The Court reasoned that the Village failed to demonstrate that it had reasonable grounds to believe that a lawsuit was more likely than not to occur at the time it entered closed session. As neither of the Village’s asserted OMA exceptions applied, the Court concluded that the Village improperly entered closed session in violation of the OMA.
Significantly, however, with respect to the appropriateness of the remedy, the Appellate Court reversed the circuit court’s decision. The Appellate Court held that the circuit court erred when it ordered the Village to disclose the closed session recordings without considering whether such records included exempt privileged attorney-client communications. The Court remanded the case to the circuit court for a determination as to whether the Village properly established that the closed session recordings were exempt from release under the attorney-client privilege exemption of the FOIA.
While the decision seems rather straight forward regarding the OMA closed session matters, the decision is quite interesting as it acknowledges that a discussion, even if potentially violative of the OMA, may still be exempt from disclosure if a public body is engaged in discussions with its attorney. Historically, the Public Access Counselor has required or requested a public body to release closed session recordings if there is an OMA violation, even if the public body’s attorney is part of the discussion. This opinion at least acknowledges the import and confidential nature of attorney-client communications. Public bodies should not view this opinion as sanctioning violations of the OMA if the discussion involves the public body’s attorney; but public bodies should remain mindful that communications with their attorneys are privileged. This opinion adds an interesting nuance to OMA discussions and the attorney-client privilege. If you have any questions regarding this decision or any OMA or FOIA matters, please contact one of the authors of this alert or any Franczek attorney.