Open Meetings Act
Closed Sessions
OMA requires that all meetings of public bodies be open to the public unless the subject of the meeting falls within one or more of the exceptions contained in the Act. The exceptions to OMA are limited in number and are very specific. If the subject to be discussed by a public body is covered by one of the statutory exceptions, then the public body may, at its discretion, close the meeting or a portion of the meeting to the public by following the statutory requirements. However, public bodies are not required to close any meeting to the public.
Because these exceptions are contrary to the general requirement that meetings be open to the public, they are to be “strictly construed,” which means that they will only apply to situations that are clearly within their scope. Thus, discussion in a closed session under an exception must be limited in scope to the specific exception(s) authorizing the closed session.
For example, one of the statutory exceptions allows a public body to hold a closed session for “the setting of a price for sale or lease of property owned by the public body.” Under this exception, a public body may not hold a closed session to discuss whether to sell or lease the property, or whether to accept an offer for its purchase. Those are matters that are beyond the scope of the exception, which authorizes holding a closed session only for the purpose of setting a price for the property.
The taking of any “final action” at a closed session is prohibited. Final action, which includes a vote, taken at a closed session may be voided by a court. Before taking final action, a public body must disclose to the public the substance of the action that is being taken, and whether that action has been discussed in an open or a closed meeting.
Procedures for Closing Meetings
A public body may, upon a majority vote of a quorum present, vote to go into closed session or to hold a closed session at a specified future date. The vote must be taken at an open meeting. Although additional notice is not required prior to holding a closed session when such session is part of an open meeting for which proper notice has been given, separate notice is required for all other closed sessions. The vote of each member on the question of holding a closed session, as well as a citation to the exception authorizing the closed session, must be publicly disclosed at the time of the vote and recorded and entered in the minutes of the meeting at which the vote is taken. Discussion in a closed session is limited to those matters covered by the exception specified in the vote to close; no item not expressly addressed in the open meeting vote and covered by a specific exception may be discussed in closed session.
A public body may close a series of meetings by a single vote as long as each meeting in the series involves the same particular matter and is scheduled to be held within three months of the vote. This language is designed specifically to deal with meetings involving ongoing negotiations. For example, should a public body need to conduct a series of meetings on a particular topic, it only needs to take one vote prior to the first closed meeting and then it can hold subsequent closed meetings without taking an additional vote if those meetings will be held within three months of the vote. All subsequent meetings, however, must comply with the notice requirements.
The following subjects may be discussed in a closed meeting
Employment/Appointment Matters
- The appointment, employment, compensation, discipline, performance, or dismissal of specific employees of the public body or legal counsel for the public body, including hearing testimony on a complaint lodged against an employee of the public body or against legal counsel for the public body to determine its validity.
For purposes of OMA, “employee” is defined to include “a person employed by a public body whose relationship ... constitutes an employer-employee relationship under the usual common law rules, and who is not an independent contractor.” Accordingly, this exception does not authorize a public body to hold a closed session to discuss independent contractors other than legal counsel.
Note: This exception is appropriately used only with respect to discussions concerning specific employees and not with respect to classes of employees or other employment or personnel concerns. For example, this exception cannot be used to close a meeting to discuss budgetary decisions, even if those decisions will have a direct impact on personnel.
- Collective negotiating matters between the public body and its employees or their representatives, or deliberations concerning salary schedules for one or more classes of employees.
This exception does not authorize a public body to hold a closed session to conduct unilateral deliberations on the extension of bargaining rights to a federation or other representative group. Ill. Att’y Gen. Op. No. S-1490, issued May 12, 1980.
The exception does, however, authorize a public body to hold closed unilateral sessions to discuss its negotiating response when collective bargaining negotiations are ongoing.
- The selection of a person to fill a public office ... including a vacancy in a public office, when the public body is given power to appoint under law or ordinance, or the discipline, performance or removal of the occupant of a public office, when the public body is given power to remove the occupant under law or ordinance.
For purposes of this exception, “public officer” means:
[a] position created by or under the Constitution or laws of this State, the occupant of which is charged with the exercise of some portion of the sovereign power of this State. The term “public office” shall include members of the public body, but it shall not include organizational positions filled by members thereof, whether established by law or by a public body itself, that exist to assist the body in the conduct of its business.
Because the selection of a president, chair or other officer, or the committee structure of the body, concerns “organizational positions,” these matters cannot be discussed in a closed session. See Ill. Att’y Gen. Op. No. 03-006, issued August 18, 2003, concluding that a county’s “committee on committees” could not properly hold a closed meeting to consider appointment of county board members or other persons to other committees created by the county board.
Legal Matters
- Evidence or testimony presented in open hearing, or in closed hearing where specifically authorized by law, to a quasi-adjudicative body, as defined in this Act, provided that the body prepares and makes available for public inspection a written decision setting forth its determinative reasoning.
- A quasi-adjudicative body is “an administrative body charged by law or ordinance with the responsibility to conduct hearings, receive evidence or testimony and make determinations based thereon[.]”. Electoral boards considering petition challenges are excluded from the definition of “quasi-adjudicative body.”
- The purpose of this exception is to allow bodies that function like a court, such as a Property Tax Appeal Board, Pollution Control Board, or a county board or city council when deciding on a zoning change, to close a meeting to evaluate the evidence and testimony presented to them. It promotes free discussion on issues such as the credibility of witnesses. If a public body utilizes this exception, the public body must provide a written opinion setting forth the basis for its determination on the matters reviewed under the exception.
- Litigation, when an action against, affecting or on behalf of the particular public body has been filed and is pending before a court or administrative tribunal, or when the public body finds that an action is probable or imminent, in which case the basis for the finding shall be recorded and entered into the minutes of the closed meeting.
This exception does not authorize the closing of a meeting merely because an attorney is present and/or legal issues are to be discussed. Litigation must be probable, imminent or pending before the exception can be used. The phrase “probable or imminent” means “likely to occur.” See Ill. Att’y Gen. Op. No. 83-026, issued December 23, 1983.
The term “litigation” does not encompass deliberations of a public body acting in a quasi-judicial capacity on matters before it for decision.
This exception has been described as “a forked path.” If the litigation has been filed and is pending, the public body need only announce that in the proposed closed meeting, it will discuss litigation that has been filed and is pending. If the litigation has not yet been filed, the public body must: (1) find that the litigation is probable or imminent; and (2) record and enter into the minutes the basis for that finding. Evidently, the legislature intended to prevent public bodies from using the distant possibility of litigation as a pretext for closing their meetings to the public.
- The establishment of reserves or settlement of claims as provided in the Local Governmental and Governmental Employees Tort Immunity Act, if otherwise the disposition of a claim or potential claim might be prejudiced, or the review or discussion of claims, loss or risk management information, records, data, advice or communications from or with respect to any insurer of the public body or any intergovernmental risk management association or self-insurance pool of which the public body is a member.
Business Matters
- The purchase or lease of real property for the use of the public body, including meetings held for the purpose of discussing whether a particular parcel should be acquired.
- The setting of a price for sale or lease of property owned by the public body
- The sale or purchase of securities, investments, or investment contracts.
- Security/Criminal Matters
- Security procedures and the use of personnel and equipment to respond to an actual, a threatened, or a reasonably potential danger to the safety of employees, students, staff, the public, or public property.
- Informant sources, the hiring or assignment of undercover personnel or equipment, or ongoing, prior or future criminal investigations, when discussed by a public body with criminal investigatory responsibilities.
School Matters
- Student disciplinary cases
- The placement of individual students in special education programs and other matters relating to individual students
New Exceptions for Closing Meetings
Public Act 97-318, effective January 1, 2012, allows a public body to hold closed meetings to consider meetings between internal or external auditors and governmental audit committees, finance committees, and their equivalents, when the discussion involves internal control weaknesses, identification of potential fraud risk areas, known or suspected frauds, and fraud interviews conducted in accordance with generally accepted auditing standards of the United States of America.
Electronic Attendance
Section 7 of OMA (5 ILCS 120/7) specifically contemplates that members of a public body may attend a meeting other than by being physically present in the meeting room. The section expressly authorizes public bodies to permit attendance at meetings by video or audio conference, but only in limited circumstances. To allow a member of a public body to attend a meeting other than by being physically present in the meeting room, the public body and the member seeking to attend by other means must meet certain statutory requirements.
- Public body must adopt rules.
Before permitting a member to attend a meeting electronically, a public body must adopt and have in place rules allowing for members to attend electronically. The rules must conform to the requirements and restrictions of OMA, may further limit the extent to which attendance by other means is allowed, and may provide for the giving of additional notice to the public or further facilitate public access to meetings.
If a public body has not adopted appropriate rules, it cannot permit a member to attend electronically.
- Quorum must be physically present at the meeting.
If a public body has adopted rules permitting electronic attendance, then a quorum of the members of a public body must be physically present at the location where the meeting is to be conducted. If a quorum is present, a majority of the public body may allow a member of that body to attend the meeting by “other means,” but only if the member is prevented from physically attending because of one of the following reasons:
- personal illness or disability;
- employment purposes or the business of the public body; or
- a family or other emergency.
“Other means” of attendance means by video or audio conference. The term does not extend, for example, to communication via email or instant messaging.
Please note that a public body is not obligated to adopt rules allowing its members to participate electronically. The decision to allow or not allow electronic participation is made at the discretion of the public body.
Public Participation
Public bodies must give citizens an opportunity to speak at public meetings. OMA requires that any person shall be permitted an opportunity to address public officials under the rules established and recorded by the public body.
A public body should adopt rules governing how public comments are to occur at meetings. These rules may include reasonable limits on commenting. Specific rules might include:
- Reasonable time limits on the length of each comment
- Requiring public comment to be limited to subjects on the meeting’s agenda
- Allowing the public body to cut off a comment if it is irrelevant, repetitious, or disruptive.
- Setting aside a specific portion of the meeting for public comments.
Public bodies may not make rules that prohibit comments based on the viewpoint expressed by the comment.
Finally, public bodies should publish these rules so that people know how they can address the public body.
Public Taping and Filming
OMA provides that “any person may record the proceedings at meetings required to be open by this Act by tape, film or other means, although the authority holding the meeting shall prescribe reasonable rules to govern the right to make such recordings. Rules concerning taping and filming should be limited to those necessary to preserve the overall decorum and proceeding of the meeting.” Ill. Att’y Gen. Op. No. S-867, issued February 4, 1975. It is not appropriate for public bodies to create rules “on the spot.” Rather, rules should be written and published after appropriate public notice and deliberation.
What is a reasonable rule?
The Attorney General’s office has concluded that a rule that prohibits the placement of video- or tape-recording equipment where it would obstruct the public from seeing or hearing the proceedings is a reasonable rule intended to preserve the decorum of the proceedings. On the other hand, the Attorney General’s office has also concluded that rules prohibiting the public from using a public body’s electrical outlet, swiveling or refocusing a recording device during a meeting, or turning a recording device on or off during the course of a meeting, were unreasonable and unenforceable. Ill. Att’y Gen. Inf. Op. No. I-94-007, issued January 27, 1997; Ill. Att'y Gen. Inf. Op. No. I-00-015, issued April 5, 2000.
There is one exception to the general principle that members of the public may record proceedings of an open meeting. If a witness at an open meeting conducted by a commission, administrative agency or other tribunal refuses to testify if any portion of his testimony is to be broadcast or televised or if motion pictures are to be taken of him while testifying, then the authority holding the meeting shall prohibit such recording during the testimony of the witness. This exception is applicable to quasi-judicial proceedings only.
Public Notice of Time and Place of Meetings
Advance notice is a part of the public policy requiring public bodies to conduct business openly.
All public bodies are required to give public notice, at the beginning of each calendar or fiscal year, of the dates, times and places of their regular meetings to be held during the year.
An agenda for each regular meeting shall be posted at 1) the principal office of the public body, and 2) the location of the meeting, at least 48 hours in advance of the holding of the meeting.
A public body that has a website maintained by a full-time staff member must also post the agenda of any regular meeting of a governing body of that public body, and leave the agenda posted until the regular meeting is concluded.
Notice, including the agenda, for any special meeting, (except in the event of a bonafide emergency) rescheduled regular meeting, or reconvened meeting shall be given at least 48 hours before such meeting. However, public notice is not necessary for a meeting that is reconvened within 24 hours, or if the time and place of the reconvened meeting was announced at the original meeting and there is no change in the agenda.
For an emergency meeting, notice must be given as soon as practicable, but in any event prior to the holding of the meeting, to any news medium which has filed a request for such notice.
News media providing a local address or telephone number for notice are entitled to notice of special, emergency, rescheduled or reconvened meetings given in the same manner as it is given to members of the public body.
If a change is made in the regular meeting schedule, notice of the change must be given at least 10 days in advance by posting a notice at the public body's office or at the place of meeting and sending a notice to each news medium that filed an annual request to receive such notice. Also, notice of the change must be published “in a newspaper of general circulation in the area.” If the population served by the public body is less than 500 and there is no newspaper published there, the 10 days’ notice may be given by posting a notice in three prominent places within the area served.
Note that this requirement applies to a permanent change in the regular meeting schedule, and not to the rescheduling of a single meeting, which may be done with 48 hours' notice, and without newspaper publication.
Meeting Minutes
Public bodies are required by OMA to keep minutes of ALL meetings, whether open or closed to the public.
Minutes must include, at a minimum:
- the date, time, and place of the meeting;
- a record of whether each member of the body is present or absent, and, if present, whether physically present or present by video or audio conference; and
- a summary of discussion on all matters proposed, deliberated, or decided, and a record of any votes taken.
The “summary of discussion” in the minutes must include sufficient data so that either the public body or a court examining its minutes will be able to ascertain what, in fact, was discussed, the substance of that discussion, and what, if any, action was taken.
A public body shall approve the minutes of its open meetings within 30 days after that meeting or at the public body’s second subsequent regular meeting, whichever is later.
Open meeting minutes must be made available for public inspection within ten days of the approval of the minutes by the public body.
A public body that has a website maintained by its own full-time staff shall also post open meeting minutes on its website within ten days of the approval of such minutes, and leave the minutes posted for at least 60 days after their initial posting.
Note that minutes of closed sessions are available only after a determination by the public body that it is no longer necessary to protect the public interest or the privacy of an individual by keeping them confidential.
Minutes of closed sessions are exempt from inspection under the Freedom of Information Act “until the public body makes them available to the public.”
Review of Minutes of Closed Sessions
A closed session can be held for discussion of minutes of meetings lawfully closed under OMA, whether for purposes of approval by the body of the minutes or semi-annual review of the minutes as mandated by section 2.06 of OMA.
This exception applies in two circumstances:
- a public body may close a meeting to review and approve the minutes of a previous meeting that was properly closed to the public; and
- not less than twice yearly, a public body must meet to review minutes of all closed sessions to determine whether the need for confidentiality still exists as to all or part of those minutes, or whether the minutes or portions thereof should be made available for public inspection.
Verbatim Recordings of Closed Sessions
A public body must also keep a verbatim record of any closed session in the form of a video or audio recording. Please note that this recording is in addition to meeting minutes.
The purpose of this provision is:
- to ensure that public bodies keep accurate records of their proceedings for their own protection; and
- to provide a record for a court to examine when it is trying to ascertain whether a violation of OMA has occurred.
To comply with the verbatim recording provision, the public body must record the entire closed session.
The verbatim record of a closed session must be kept by the public body for a minimum of 18 months after the meeting and may be destroyed after the expiration of that period of time, but only if:
- the public body approves the destruction;
- the public body approves written minutes of the closed session concerned; and
- there is no legal action pending concerning the meeting.
Verbatim records of closed sessions are exempt from disclosure under the Freedom of Information Act.
