Entering Executive Session and Attorney-Client Privilege During Executive Session

A recent case presented an interesting analysis of the Illinois Open Meetings Act (“OMA”) and Freedom of Information Act (“FOIA”). In International Ass’n of Fire Fighters Local 4646 v. Village of Oak Brook., 2024 IL App (3rd) 220466 in December 2020, the Village of Oak Brook (“Village”) conducted its 2021 budget hearing. During the hearing, the Village Trustees voted to go into closed session to discuss collective negotiating and probable or imminent litigation. After resuming open session, the Village adopted its 2021 budget.

The International Association of Fire Fighters Local 4646 (“Union”), which represented the Village’s firefighters, filed a lawsuit asserting that the Village violated the OMA and the FOIA. As to the OMA, the Union argued that the Village did not properly satisfy the exceptions which would have permitted it to hold closed session because there was no collective bargaining going on or any probable or imminent litigation at the time of the meeting.

As to the FOIA, the Union argued that the Village’s denial of its subsequent FOIA request for the closed session recording, minutes, and documents reviewed during the closed session violated the FOIA because there is no exemption for attorney-client privileged communication in the FOIA, or any other exemption which allowed the Village to withhold the requested items. Therefore, the Village should have produced those items under FOIA.

The Village argued that due to reduced revenues resulting from the COVID-19 pandemic, it had approached the Union during 2020 to request mid-year bargaining and concessions, which the Union refused. Because of this refusal, the Village determined that it needed to make budget cuts for 2021. Thus, two proposed 2021 budgets were discussed during the closed session. One of the budgets would have implicated collective negotiating matters in that it would have eliminated the Village’s private paramedic services and thus required Union members to perform paramedic services. This also would have allowed for the layoff of Union members. The Village Board also discussed potential litigation which could result from that budget. As such, the collective negotiating and probable or imminent litigation exceptions to the OMA were satisfied, the Village argued.

As to the FOIA, the Village’s position was that if it properly went into closed session, then all of the requested documents would be automatically exempt from disclosure under Section 7(1)(l) of the FOIA, which exempts “[m]inutes of meetings of public bodies closed to the public as provided in the Open Meetings Act until the public body makes the minutes available to the public under Section 2.06 of the Open Meetings Act.” As to the recording, the Village argued that the recording contained privileged attorney-client communications and was therefore exempt from disclosure under Section 7(1)(m) of the FOIA, which exempts “[c]ommunications between a public body and an attorney or auditor representing the public body that would not be subject to discovery in litigation.”

The trial court granted summary judgment in favor of the Union. The Third District appellate court affirmed most of the trial court’s ruling. As to the OMA, the appellate court agreed with the Union’s position that anticipated or hypothetical negotiations do not satisfy the OMA exemption. The court reasoned that to allow that would allow municipalities to make an “end-run” around the OMA because a municipality could always discuss a budget in closed session so long as it discusses whether the Union might demand collective negotiations in response.

As to the probable or imminent litigation exemption, the appellate court acknowledged that whether litigation is probable or imminent must be determined by “examining the surrounding circumstances in light of logic, experience, and reason.” However, in this case, the Village had failed to argue that it had “reasonable grounds to believe that a lawsuit was more likely than not at the time it entered the closed session.” There was no argument raised that at the time the Village entered closed session, the Union intended to file suit. And, importantly to the court, the Village had not even yet chosen the budget which the Village believed could have led to litigation.

The appellate court, however, did not fully agree with the trial court on the issue of the closed session recordings. Even though the trial court acknowledged that there were attorney-client privileged communications in the recording, the trial court ordered the disclosure of the communications under FOIA anyway, because it could not see a basis for withholding them. The appellate court disagreed with that, holding that privileged communications are exempt from disclosure under FOIA because Section 7(1)(m) of the FOIA is an “attorney-client exemption” to the FOIA.

Per the appellate court, communications fall under this exemption where legal advice of any kind is sought from a professional legal adviser in his capacity as such, the communications relate to that purpose, the communications are made in confidence by the client, and are at the client’s insistence permanently protected from disclosure by himself or by the legal adviser. A person has no right to access privileged communications, even if they prevail in a FOIA case.

However, the appellate court held that the public body has the burden to establish that information is exempt under FOIA by clear and convincing evidence under Section 11(f) of the FOIA. Thus, the appellate court remanded the case to the trial court for the trial court to determine whether the Village met that burden.

This case presents a couple of key cautionary tales to Illinois units of government. First, before going into closed session, the public body should always be certain that an exemption applies and that it is specifically announced to the public before adjourning into closed session. The commonly used litigation exemption is more precise than many assume and only applies to probable or imminent litigation, not theoretical or potential litigation. Discussions about collective bargaining should only occur when there is actual collective negotiating in progress.

If the public body does not have a proper basis for going into closed session, then the non-privileged portions of the minutes and recordings will not be protected under Section 2.06(e) of the OMA and Section 7(1)(l) of the FOIA and will need to be disclosed.

Second, members of a public body should always be mindful that just because they are in closed session and their attorney is present, that does not mean that everything said there will be privileged. The privilege only applies to communications where legal advice is sought. Courts, and the Illinois Attorney General’s Public Access Bureau, will go through a closed session recording and will only allow the public body to redact the parts which are privileged, and will order the public body to produce the rest. As such, members of the public body should always be careful about what they say in closed session, regardless of whether their attorney is present.

(DuPage County Case No. 21-MR-284) Trial Court Judge: Honorable James D. Orel; Appellate Justices: Justice Brennan delivered judgment w/ opinion; Justices McDade and Albrecht concur. Read the full opinion here.