On December 8, 2020, a village
conducted a public hearing to consider its proposed 2021 budget. The board
voted to close a portion of the meeting pursuant to the collective negotiating exemption and the pending or imminent litigation
exemption. A union submitted a FOIA request to the
village seeking the complete video and audio recording of the village’s closed
session and all documents discussed and reviewed at the closed session. The
village denied the request citing several FOIA exemptions, including FOIA’s
attorney-client privileged exemption. 

The union sued the
village alleging that (1) it held a closed meeting in violation of the OMA and
that (2) village denied their request for records in violation of FOIA. The
circuit court ruled in favor of the union, finding that the village improperly entered closed session at its
December 2020 meeting and
ordered the village to disclose its responsive records, denying the village’s
request to redact privileged attorney-client communications from the records.

After the village appealed, the
Appellate Court upheld the circuit court’s ruling on the OMA challenge but reversed the circuit court’s ruling on the FOIA challenge. Int’l
Assoc. of Fire Fighters Local 4646 v. Vill. of Oak Brook

Because the village was not
engaged in active or imminent negotiations with a collective bargaining unit
when it conducted its closed meeting to discuss two alternative budget
proposals, the Apellate Court held that the village did not satisfy the requirements
of the collective bargaining exemption, which the Court said did not support holding a closed session to
discuss matters pertaining to anticipated or hypothetical negotiations. The Court also held that the village did not demonstrate that choosing one budget option over another would have
likely resulted in litigation at the time the village entered closed
session to satisfy the requirements of the litigation exemption. 

However, the Appellate Court found that the circuit court erred when it ordered the village to disclose its closed
session recording and transcript under FOIA without regard to whether those documents
contained attorney-client privileged information. Although the OMA does not contain an
attorney-client privileged exemption, the Appellate Court held that the circuit court had the discretion to not order the village to disclose its
privileged communications with its attorney, and that the circuit court erred in ordering the village to disclose all closed session communications in response to the union’s FOIA request without considering the applicability of the attorney-client privilege. 

Post Authored by Eugene Bolotnikov, Ancel Glink