Attorney-client privilege may protect from FOIA disclosure
On December 8, 2020, the Village of Oak Brook (Village) conducted a public hearing for its 2021 budget. During that meeting, the Village entered closed session for almost three hours to discuss a proposal that included breaching a collective bargaining agreement (CBA) with the International Association of Fire Fighters Local 4646 (Union). The Village’s regular attorney and its labor counsel attended the closed session.
The Union brought suit against the Village, alleging that the Village violated the Open Meetings Act (OMA) for improperly entering closed session and that the Village violated the Freedom of Information Act (FOIA) for failing to provide transcripts and recordings when requested.
The trial court granted summary judgment for the Union, holding that the Village violated both OMA and FOIA. In addition, the trial court denied the Village’s request to redact closed sessions records that contained attorney-client privileged communications. On appeal, the appellate court affirmed the OMA and FOIA violations, but it held that the Village may be permitted to redact privileged communications from the record.
The Village claimed that Section 2(c)(2) of OMA, allowing closed session to discuss collective negotiating matters, and Section 2(c)(11), allowing closed session to discuss probable or imminent litigation. applied. The Village argued that the closed session involved adopting a budget that would breach the CBA, and breaching the CBA would likely lead to litigation.
The appellate court held that neither Sections 2(c)(2) nor 2(c)(11) applied. The court noted that there were no active negotiations with the Union. Section 2(c)(2) only allows closed sessions to discuss matters related to an active negotiation, not an anticipated or hypothetical negotiation. Similarly, Section 2(c)(11)’s “probable or imminent litigation” requires that there are reasonable grounds to believe that litigation is more likely than not. The court noted that when the Village entered closed session, it had not yet decided to breach the CBA.
Since the Village improperly entered closed session under OMA, it was obligated to provide transcripts and recordings when requested under FOIA. While neither OMA nor FOIA has explicit exceptions for attorney-client privilege, both specify that the trial court has discretion to order the production of improperly withheld public records. The appellate court noted that privileged communications are generally not subject to disclosure in discovery and it extended that general principle to hold that the trial court was not required to compel disclosure of privileged communications under FOIA. The appellate court remanded the case to the trial court to determine whether the Village met its burden of proving any of its communications were exempt under FOIA.
While this case is not specific to education law, the holdings regarding closed session under OMA and required disclosures under FOIA are applicable to school boards.
Michelle Yang, IASB Law Clerk