08/14/2017

By: Brittany Flaherty Theis

This summer the Attorney General issued a number of binding and advisory opinions regarding the Open Meetings Act (5 ILCS 120/1 et seq.; “the OMA”) and the Freedom of Information Act (5 ILCS 140/1 et seq.; “FOIA”). Two Attorney General opinions of particular significance to our clients will be discussed in separate blog posts. In Public Access Opinion 17-004, a city council was ordered to make available to the public the verbatim recording of one of its closed sessions pursuant to the Open Meetings Act. That opinion is discussed below.

Open Meetings Act

In Public Access Opinion 17-004, the City of Bloomington City Council closed a portion of its meeting to discuss what it deemed “probable litigation” under section 2(c)(11) of the OMA. Specifically, the City Council discussed its possible courses of action with respect to a cost and revenue sharing intergovernmental agreement between two communities.

Following that meeting, the McLean County State’s Attorney received questions from local citizens regarding the propriety of closing that portion of the meeting to the public, which he forwarded to the Public Access Bureau of the Illinois Attorney General’s Office as a request for review. The Public Access Bureau reviewed the request, correspondence with the City Council, and the verbatim recording of the closed session to determine if the City Council complied with section 2(c)(11) of the OMA.

Section 2(c)(11) allows a public body to enter closed session to discuss litigation that has been filed and is pending. It also provides that a public body may enter closed session when the public body finds that an action is probable or imminent so long as it records and enters into the minutes of the closed session its basis for that finding.

In its opinion, the Attorney General reiterated relevant case law and explained that section 2(c)(11)  is essentially a “forked path.” If litigation is filed and pending, a public body need only announce in the public meeting that it will discuss litigation that has been filed and is pending. If litigation has not been filed, however, the public body must:

  1. Find that the litigation is probable or imminent; and
  2. Record and enter into the minutes the basis for that finding.

Additionally, if a public body enters closed session under section 2(c)(11), the only matters that may be lawfully discussed are the strategies, posture, theories, and consequences of the litigation itself.

Therefore, the applicability of section 2(c)(11) to the discussion of strategies, posture, theories, and consequences of pending litigation is clear. However, in situations where litigation is not currently pending, public bodies must be certain to analyze whether potential litigation is truly “probable or imminent” to determine whether this section is applicable. Whitt Law attorneys are available to advise public bodies regarding the application of the open meetings exceptions, as well as other Open Meetings Act requirements. Please contact Whitt Law Attorney Brittany Flaherty Theis if you have any questions.

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