Appellate Court Says Privilege Can Apply When Narrow OMA Exceptions Do Not

The Third District Appellate Court’s decision in International Association of Fire Fighters Local 4646 v. Village of Oak Brook provides important guidance for municipalities and other public bodies that want to consider the legal and labor relations implications of potential decisions. Because the court determined that there was no “active or imminent” collective bargaining or “imminent or probable” litigation when the Village discussed budget options in a December 2020 closed session, it concluded that the Village’s discussions did not fall within exceptions provided by the Open Meetings Act (OMA). However, the appellate court also found that the lower court was wrong to order the disclosure of the Village’s closed session recording, transcript, and minutes without considering what parts might be attorney-client privileged.

During the closed session discussion, the Village considered two alternate budget proposals. The firefighters’ union and other unions had refused the Village’s requests to engage in mid-term bargaining earlier in 2020, and the Village had determined that it needed to make budget cuts as a result. Noting that the Village had only argued that one of the budget proposals would “definitely” lead to litigation based on a breach of the collective bargaining agreement, the appellate court focused on the fact that litigation was not imminent or probable at the time of the meeting, before the Village made its budget decision. The court also gave deference to a narrow interpretation of “collective negotiating matters” by the Illinois Attorney General’s Public Access Counselor, which has said that the relevant OMA exemption does not extend to a discussion of unilateral budgetary actions that would affect union members outside of active or imminent collective bargaining.

Despite finding that the Village had violated the OMA, the appellate court found that the Village should not be required to disclose the entire closed session recording. The decision notes that the OMA gives courts discretion to determine what relief to grant, and privileged attorney-client communications are not subject to disclosure under the Freedom of Information Act or discovery. As a result, the appellate court reversed the lower court’s denial of the Village’s request to redact privileged communications.

For questions about this decision and any matters regarding closed meeting discussions, please contact your Robbins Schwartz attorney.

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