This month’s column discusses the recent Second District Appellate Court order in Edgar Pal v. The City of Elmhurst and Elmhurst City Council, affirming the dismissal of the plaintiff’s complaint in a matter arising out of alleged violations of the Open Meetings Act (OMA) and Freedom of Information Act (FOIA).
Plaintiff’s Complaint Alleged Violations of the OMA
Plaintiff filed a four-count complaint stating:
"The closed session included discussion about the Public Works Director retiring and that the City Manager requested permission to fill the position. There was discussion about identifying the position as a leadership role as well as the projects that would be assigned to the position. ELMHURST CITY COUNCIL proceeded to reach a consensus to recruit external and internal candidates with the possibility of appointing an interim director."...
Pal v. City of Elmhurst, 2022 IL App (2d) 210048U (Ill. App. 2022)
Plaintiff argued that OMA does not permit such generalized discussion of positions and is reserved for the discussion of specific employees. If general discussions of particular City positions occurred during the closed session, the closed meeting recordings should have been released under the OMA. Plaintiff submitted a FOIA request for recordings of the meeting and only the open meeting was produced. Plaintiff alleged both OMA and FOIA violations.
The closed meeting minutes had been accidently posted on the City’s website. Plaintiff accessed and downloaded the closed meeting minutes. Defendants claimed as an affirmative defense that Plaintiff violated their “statutory privilege” to keep the closed meeting session minutes private and that plaintiff relied upon those minutes in support of their lawsuit against defendants.
Pertinent Sections of the Open Meetings Act
· Section 2(c) limits closed sessions to discussions on the merits and conduct of particular candidates and employees. 2(c)(1) of OMA (5 ILCS 120/2(c)(1) (West 2018)).
· Section 2.06 provides that minutes of closed sessions shall be available to the public only after the relevant public body determines that it is no longer necessary to protect the public interest or the privacy of an individual by keeping them confidential. (5 ILCS 120/2.06 (West 2018.
· Section 206(d) provides that a public body shall periodically, but no less often than semi-annually, determine whether the need for confidentiality in such minutes still exists or whether the minutes no longer require confidential treatment and are available for public inspection. (5 ILCS 120/206(d) (West 2018)).
· Section 206(f) provides that “no minutes of meetings closed to the public shall be removed” from the public body’s official storage location prior to such determination, except by court order or vote of the public body. (5 ILCS 120/206(f) (West 2018)).
· Section 4 makes such removal without a court order or vote of the public body a Class C misdemeanor. (5 ILCS 120/4 (West 2018)).
Having listened to the recording of the closed meeting, the trial court found that a portion of the meeting was general discussion of the public works position. However, the court also found that a portion of the meeting was specific to individuals that the City was considering to fill the position and properly subject to the closed session.
The court determined that the matters discussed in closed session fell specifically within the exceptions that the Open Meetings Act was intended to cover. The court felt that even the portion of the meeting which may have been a broad discussion of the position were introductory and properly fell within the privilege of the closed session.
The court determined that there was no violation of FOIA or OMA. The court also stated that the proper way to handle future situations regarding allegations of an Open Meeting Act violation would be for the court to listen to such recordings in camera to make a proper determination regarding whether or not there was a violation.
Defendants’ motion to dismiss counts II, III and IV of the complaint alleging FOIA violations was granted. Defendants filed an affirmative defense to count I, claiming that plaintiff illegally downloaded the minutes of a closed session which was a statutory privilege violation. In granting defendants’ motion to dismiss counts II, III and IV, the trial court held that count I was rendered moot, and therefore, also dismissed, since the other counts relied upon count I. Plaintiff filed an appeal.
Appellate Court Discussion Of The Open Meetings Act
“OMA provides that public agencies exist to aid in the conduct of the people’s business. Gosnell v. Hogan, 179 Ill. App. 3d 161, 171 (1989). To that end, OMA’s intent is to assure that an agency’s actions be taken openly and that deliberations be conducted openly. Gosnell, 179 Ill. App. 3d at 171. Section 2(a) of OMA requires that “all meetings of public bodies shall be open to the public” unless excepted in section 2(c). 5 ILCS 120/2(a) (West 2018). Section 2(c)(1) provides that a public body may hold closed meetings to consider the “appointment, employment, compensation, discipline, performance or dismissal” of “specific employees ***.” 5 ILCS 120/2(c)(1) (West 2018). Exceptions allowing closed meetings are narrowly construed because they derogate the legislature’s general policy of open meetings. Gosnell, 179 Ill. App. 3d at 171. However, every instance in which a public body’s actions do not squarely meet the language of the exceptions will not constitute a violation of OMA. Gosnell, 179 Ill. App. 3d at 171. Rather, the statutory language and the legislature’s intent expressed therein must be “interpreted and applied on the facts of each case.” Gosnell, 179 Ill. App. 3d at 171.” Pal v. City of Elmhurst, 2022 IL App (2d) 210048U (Ill. App. 2022).
Appellate Court Discussion Of The Freedom of Information Act
“FOIA’s purpose is to open government records to public scrutiny. Chicago Tribune Co. v. Cook County Assessor’s Office, 2018 IL App (1st) 170455, ¶ 21. FOIA implements the legislature’s public policy to provide Illinois citizens full access to information regarding governmental affairs. Chicago Alliance for Neighborhood Safety v. City of Chicago, 348 Ill. App. 3d 188, 198 (2004). Public records are presumed to be open and accessible. Chicago Tribune, 2018 IL App (1st) 170455, ¶ 21. When a public body receives a request for information, it must comply unless a statutory exemption applies. Chicago Tribune, 2018 IL App (1st) 170455, ¶ 21.” Pal v. City of Elmhurst, 2022 IL App (2d) 210048U (Ill. App. 2022).
No Violation Of OMA Or FOIA
The appellate court may only reverse judgment if it finds the trial court’s ruling erroneous. Anticlimactically, the plaintiff failed to include the meeting recording or even the minutes as a part of the appellate record. Therefore, the appellate court was unable to review the meeting to determine if error had occurred. Without such a record, the appellate court will presume that the trial court had a sufficient factual basis and ruled accordingly. The appellate court denied plaintiff’s request to supplement the record stating that:
“Permitting respondent to supplement the record would set a dangerous precedent for allowing piecemeal creation of the record, with supplemental briefing and rebriefing, derogating the appellate process.” Sharp, 369 Ill. App. 3d at 275. Id.
The appellate court held that the complaint was properly dismissed with prejudice. Defendants’ counterclaim that the plaintiff had illegally downloaded the minutes was rendered moot by the dismissal of plaintiff’s complaint in its entirely. Even counsel for the city admitted that “the cat’s out of the bag” regarding the accidently released minutes. Given that plaintiff relied upon the minutes as a basis to bring his lawsuit, it is a good lesson for municipalities to ensure that closed meeting contents are not released until it is determined that there is no longer a need for confidentiality, which the public body should check periodically and no less often than semi-annually pursuant to Section 206(d). This case also validated the broad discussion of positions as an introduction to a closed session as properly protected as a part of the closed session.
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