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Wednesday, April 28, 2021

Court Interprets "Probable or Imminent" Litigation Exception in OMA

We don't see a lot of cases that deal with the Open Meetings Act, and very few have addressed the "probable or imminent" exception that allows a public body to go into closed session to discuss threats of litigation. This week, the Illinois Appellate Court issued a decision interpreting that exception and finding against a public body in its use of that exception. The case is worth a read because it goes into considerable detail about the probable or imminent exception and takes a different view or interpretation of that exception than the Public Access Counselor has in recent PAC opinions. City of Bloomington v. Raoul.

The case involved a dispute between two municipalities, one of which was threatening to terminate an agreement between the two towns. One of the municipality's city councils went into closed session to discuss various issues and strategies relating to the other municipality's communications about the agreement. After the meeting, a request for review was filed with the PAC alleging the closed session violated the OMA. The PAC issued a binding opinion that the council did violate the OMA because (1)  the probable and imminent litigation exception did not apply to this discussion and (2) the council exceed the scope of the exception. The town appealed, and the circuit court reversed.

The case made its way to the Appellate Court which reversed the circuit court and upheld the PAC's opinion. The court did question the PAC's reliance on its own PAC opinions and court cases to support its opinion, finding that analysis to be unnecessary since the language in the OMA was, in the court's view, unambiguous. The court disagreed with the public body's position that litigation was imminent finding that this position ran counter to the statements made by various individuals in the closed session that there was “no clear cut road” to litigation, that possible litigation was a “minor issue,” that the other town's threat of a lawsuit could be a “negotiating tactic,” and one member expressed doubt that a lawsuit would be filed. The court concluded that because the "gist of the City Council’s discussion described elsewhere herein was not of a group that thought litigation was probable or imminent," the council improperly went into closed session. The Appellate Court also held that even if the council had properly gone into closed session, much of the discussion that took place in closed session was outside the scope of the "imminent or probable" litigation exception.

This case is a reminder to public bodies to make sure that they (1) have a legitimate and justifiable basis to go into closed session to discuss probable or imminent litigation and (2) focus their discussion in closed session on the type of topics the court said are appropriate for this exception, such as the "discussion of legal theories, defenses, claims, or possible approaches to litigation."


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