by
Stewart H. Diamond
Keri-Lyn J. Krafthefer

Public Act 93-0523, effective January 1, 2004, requires all Illinois units of local government and school districts to audio or video record their closed sessions. This public act is an amendment to the Open Meetings Act, which previously only required that written minutes be kept of closed session meetings and that each governmental body determine, on a semi-annual basis, whether the minutes of the closed session meeting could be made available to the public. Now, that same process will need to take place with the audio or video tapes of those meetings. The only other assistance or clarification given to us by the new state law is that the recordings must be kept for a minimum of 18 months and that they cannot be destroyed thereafter unless the written minutes of the meeting are approved. That approval can take place in a closed session. The tape can then be destroyed after the governmental body approves the destruction in open session. Attached to this memorandum is a resolution to accomplish the destruction of the tapes.

Because the state legislation presents only an outline set of directions, many questions are being asked about how to implement this law. For the moment, it is quite easy to answer these questions because, without some judicial interpretations of the Act, no one knows whether these answers are right or wrong. It is probably sufficient to say that, for a while, the courts and the State=s Attorneys are likely to give governmental bodies reasonably-wide latitude as to how to implement the law and may even accept honest failures to fully perform or to guess correctly how a court will finally interpret the law.

The following answers are based upon the general way in which the courts have interpreted the Open Meetings Act in other cases, along with what can be expected of us where the law is still unclear. Ultimately, courts will look for the actions by governments to generally serve the goals of openness and disclosure as expressed in the Act.

1. When must we begin taping closed sessions? The law will take effect for meetings which occur on or after January 1, 2004. The law should not apply to audio or visual tapes which were recorded prior to the effective date of the Act.

2. Can we have the meeting transcribed by a court reporter? Amazingly, the new law seems to insist on audio or video recordings, without allowing straight transcription as a method to preserve the record. Since many court reporters use a tape recording as a back-up, this new law should not affect the ability of a municipality to retain a transcribed record along with an audio tape. In some cases, closed sessions, which previously took place in a smaller conference room may be moved to the council chamber so that the discussion can be picked up by the audio or video equipment in place for the public sessions.

3. Who has the responsibility for taping the meeting? The statute is silent on this subject. Each municipality should appoint some person who will be in charge of operating the audio or video machine and keeping the closed session tapes until they are erased. In many municipalities, the responsibility to make the recordings will probably fall to the municipal clerk. The clerk should make it clear that he or she will only be responsible for such recordings at meetings attended. Since this rule applies to closed sessions of committees of a council or board, along with any of its subsidiary bodies, there probably should be a statement by the clerk, perhaps in writing, as to those meetings for which the clerk agrees to assume responsibilities. Again, nothing in this new law specifically directs that this responsibility will be that of the clerk.

4. How fancy or professional must the recording be? One of the main arguments presented by the proponents of this legislation was that every governmental body could fully comply with it simply by providing an inexpensive audio tape recorder to record the meetings. Unless it is very easy for a government to produce a more expensive or finished product, or move to a video taping system, we should take the legislators at their word and tape with the simplest of machines. The tapes do not need to be transcribed and, if an action is brought under the Freedom of Information Act, the judge will have the tapes to listen to. The statute does not require that individuals need to identify themselves on the tape or prevent talking over one another, or to make any change in their general procedures. A simple audio tape will satisfy statutory requirement.

5. Who can listen to the tapes? Any member of the governing body should be permitted to listen to these tapes. Once saved, it may be argued in a variety of lawsuits that they are subject to discovery in civil cases as well as being available for review in cases charging a violation of the Act. This broader discovery should be resisted, since providing law enforcement officials specific evidence of what took place during a closed session was the principal reason put forward for the new law.
The Illinois Press Association, without specific examples, argued that efforts to prosecute Open Meetings Act violations were thwarted because the people present were unwilling to testify as to what took place at the meeting. Now, if there is a complaint from a citizen, or one of the council or board members, to a State=s Attorney or a private attorney, they can bring a lawsuit under the Open Meetings Act and require that the tapes be brought into court. The judge is then to review the tapes in private. If, after the review, the judge feels that contents of the tape or tapes may reveal violations of the Open Meetings Act, he or she can order them to be delivered or copies of them sent to the plaintiff bringing this action. If they do not contain evidence of a violation, the judge is to return the tapes to the government. In some cases, the tapes may be examined and offered for evidence by the plaintiffs in the suit, but the court may ultimately reject the introduction of this evidence, since it may not be probative as to the ultimate issue before the court.

6. What should be recorded? A recording must be made of all parts of a closed session, including any preliminary statements people may make, and any closing statements, including a motion to return to open session and the vote on the motion. Obviously, a suggestion by any of the participants that the tape recorder be turned off for a few minutes because embarrassing information is going to be discussed, will be a violation of the Act. The Press Association believes that many closed sessions drift off the subject which brought the parties into the closed session. Under these circumstances, the entirety of the session must be recorded.

7. What is to be done if the tape recorder breaks down, runs out of batteries, or there is no additional tape available? Under a reasonable reading of the Act, the meeting must stop at this point. Governmental officials should not risk being found to be in violation of the Open Meetings Act, since both civil and criminal penalties can apply. The closed session should simply stop. If the reaching of a decision by the governmental body is a true emergency, then the meeting can be recessed until the problem is fixed, or an open session emergency meeting may be called for the next day, which will begin with a motion being made to return to closed session. It is essential that the reason for reconvening the meeting without the normal minimum 48-hours notice be a true emergency. Another possibility, in some governmental bodies, is to return the meeting to open session. It may be that the matters that need to be discussed can be talked about with only a small number of the members of the public then in attendance at the meeting. It may also be that the remainder of the discussion can be carefully talked about in open session without revealing any secrets which would put the governmental body at a disadvantage.

8. What if the government takes a vote in the closed session? Normally, governmental bodies must return to open session to take definitive action regarding matters discussed in closed session. On the other hand, the courts have held that a government may take a binding vote in closed session to, for example, direct its attorney to make an offer of settlement in pending litigation or the purchase of land. That is because it would not help the municipality if the motion ASettle the Johnson case for up to $55,000.00, starting with an offer of $40,000.00" is made in an open session. In that case, Johnson, if he hears about it, will not settle for less than $55,000.00. The initial discussion and consensus, which resulted in the attorney being authorized to make the offer, can be reached in closed session, and should be recorded on the audio or video tape.

9. What happens if a governmental body needs to unexpectedly go into closed session and there is no audio or video tape readily available? Because the sanctions for violating the Open Meetings Act are so serious, governmental officials will need to know where a usable audio or video recorder and empty tapes are available within the governmental offices. Perhaps the person who has the responsibility for taking the minutes should be given the job of always bringing such a recording device to every public meeting where minutes will be taken.

10. Should the quality of the recording be monitored? The person who has the control over the audio or video recording should, on a periodic basis, monitor the quality and completeness of the recording. This probably does not need to be done at every meeting. If such a check is undertaken, some occasional lapse in recording may be forgiven, whereas, the court and the State=s Attorney will undoubtedly frown upon two years of garbled recordings.

11. What should be done with these recordings, and who should have access to them? The recordings should be kept in a safe place and typically under lock and key. Any member of the governing body who, for example, wishes to refresh his or her recollection by listening to a still non-released tape should sign a log showing what tape was checked out and how long it was kept. In most cases, the individual should not be able to remove the tape from the building where it is stored. The person in charge of securing the tapes might even make a copy of the tape for the individual who wishes to refresh his or her recollection, but even that copy should generally not leave the government=s custody.

12. When can tapes be erased? Tapes of closed session minutes must be retained by the governmental body for a period of at least 18 months after the meeting is recorded. After that time, the tape may be discarded and erased if two events take place. First, the destruction of the tapes must be authorized by the entity which held the meeting. We believe that this motion or resolution must be approved in open session. We have attached such a form resolution to this article. Second, the written minutes of the meeting must be Aapproved.@ The approval of the minutes can be done in closed session. The written minutes must only be Aapproved.@ They need not be released to the public in order for the tape to be erased if the requisite time has passed. The 18-month period of time was considered adequate for any lawsuit to be filed involving alleged violation of the Open Meetings Act. When such a lawsuit is filed, the court would likely prevent the erasure of the tape until a final resolution of the lawsuit.

Where no lawsuit is filed, it is likely that many governmental bodies, while considering the release of the minutes every six months, as required, will conclude that minutes of closed session meetings will typically not be released for a period in excess of 18 months after the meeting. So long as the written minutes of the meeting has been approved, the tapes can then be authorized to be erased and thereafter erased. We believe that the Legislature understood that audio or video tapes of these meetings would usually not become available to the general public. That is because their main audience was intended to be judges hearing cases alleging violations of the Open Meetings Act. The taping is really not being done for the purpose of acquainting the public with the specific words used by their officials when discussing matters of great sensitivity in closed sessions. Instead, this whole new process is simply to secure evidence of any improper use of the Open Meetings Act.

We think that a reasonable argument can be made that if, for example, the written minutes of a closed session are both approved and released after one year, the tape can still be held in confidence and erased after 18 months. We think that the courts may eventually hold that the audio and video tapes do not need to be released when the written minutes are released, and that they can be erased after 18 months, even if the written minutes has been approved in closed session, but not released. That is because the only real reason for the tape is to make violations of the Open Meetings Act readily provable.

Unfortunately, while not the reason for the law, these tapes can be politically potent. If, for example, a candidate for office states that he could not remember being in favor of settling a controversial zoning case, the rest of the Board or Council could order the tapes of a closed session meeting released at which that member argued that the project in question should be approved or the lawsuit settled. While historians may argue that the tapes of these meetings would provide a new source of oral history, we believe most commentators would conclude that there is more ill than good to releasing both the written minutes of a meeting and also its recorded counterpart.

13. What if tapes improperly surface? If the governmental body has an appropriate log of those individuals who listened to privately-held tapes, they may have some clue as to who might have improperly taken or re-recorded them and released them to the public. In addition to their political impact, such tapes can be hurtful to an official=s personal life. If tapes have been stolen or illegally copied, a clear violation of state law would have occurred. Under those circumstances, the theft should be reported to the police and an investigation should ensue. Unfortunately, once the tape, doctored or not, is released to the public and the newspapers, the harm may already have been done. Perhaps then the same state=s attorneys and the press who sought this legislation should step up and require and pursue criminal charges against individuals who violated the Open Meetings Act by making available the non-released tapes.

14. Should elected officials be more careful about what is said in closed sessions? Certainly, officials need to be continuously observant and avoid discussing topics in closed sessions which would not qualify under the exemptions contained within the Open Meetings Act. The courts have been tolerant where evidence came forward that a conversation briefly drifted away from a central topic for which an exemption was available to a related unprotected topic. An example of this might be the exemption under the Act for the discussion of the acquisition of a particular piece of property. After going into closed session to discuss the acquisition of a particular piece of property, one member of the governmental body may begin to talk about his or her philosophical opposition to condemning property. That subject belongs to an analysis of public policy rather than to the acquisition of a particular piece of land and should not be discussed in detail in closed session. If the comment is brief and the group returns to the matter which allowed for the closed session to take place, it is not likely that a court will turn the tape over to the attorney for the plaintiff. If, on the other hand, there is a two-minute discussion about a particular piece of property, and a 20-minute discussion of whether the Village needs more parks, or the school district needs more playgrounds, the judge will probably turn the matter over for use as evidence in an Open Meetings Act prosecution or civil suit.

Members of a governmental body which goes into closed session probably have some responsibility for keeping their fellow participants on the straight and narrow. In addition, the charge could undoubtedly be brought not only against the official who violated the Open Meeting Act, but also against those other members of the body who remained silent and listened to the material which should have been discussed only in an open session. Having a knowledgeable attorney present during closed sessions should also reduce the chances of committing an Open Meetings Act violation. The lawyer should be instructed that he or she is there in part to prevent the body or any individual member from violating the Act. If your attorney frequently goes to the bathroom during your closed sessions, you might suggest either a visit to a urologist or get a lawyer willing to take a more active role in monitoring the group=s discussions.

Those of us who strongly argued against the passage of this bill also raised the issue of whether its provisions would have a chilling effect on free discussion. It would take a very courageous elected official, when the possible employment of a new village manager was being discussed, to go into specific rumors of that manager=s problems while working for other municipalities. In addition, one or two stolen and improperly-released tapes somewhere in the state may make every official leery of being completely honest in their stated evaluations of officers or employees in a closed session.

15. What is an elected official to do if he or she wants to advise fellow board members that a new employee should not be hired because he left his last job just before being fired for charges of sexual harassment? Prior to the requirement that meetings be recorded, that information could have been shared fairly easily. I am afraid that we will have many instances in which officials will say: AThis is my opinion, but I can=t really tell you why.@ That is not very healthy or conducive to good government. The officials could also speak with other board members individually outside of closed session.

16. Do written minutes of closed sessions need to be more inclusive to pick up all details heard on the tape? No. The passage of this unfortunate amendment should not in any way change the nature of closed session minutes. Under law, those minutes only need state the time and place of the meeting, who was present, what matters were discussed, and a summary of discussions on all matters proposed, deliberated or decided and a record of any votes taken.

17. What should be done if an inadvertent failure to follow the law takes place? Some effort should be made to correct the failure, to publicly admit the failure and to state how a correction has taken place. For example, if it was discovered after a closed session meeting that the tape recorder jammed in the middle of the session, an effort should be made to call another closed session as quickly as possible after the first one, where the officials could attempt from memory to re-discuss the items that had previously been discussed. If good written minutes were taken of the meeting, then those general discussions should be recallable and reproducable. If, by mistake, a tape of one closed session, not yet released, is taped over at a later closed session, it would probably be a good idea to admit that this problem had taken place publicly, along with an attempt to see to it that this particular type of problem did not occur again.

18. What about releasing part of the minutes of a meeting? Sometimes, the corporate authorities will review the written minutes of a meeting and decide that part of the minutes of a closed session can be released, while the other part of the minutes must still be held. In that case, if the decision is made at least 18 months after the date of the meeting, and the written minutes have been approved, the entire tap can be erased if publically authorized.

19. Must the corporate authorities listen to or watch the tapes every six months when they review the minutes of closed meetings to rule on their release? No. The corporate authorities can surely tell from the written minutes of the meeting whether holding the minutes from public view is or is not Anecessary to protect the public interest or the privacy of an individual.@ Making the public officials also listen to or watch the tapes every six months would probably be a form of Acruel and unusual punishment@ prohibited by the United States Constitution.

20. What are the penalties for violating this new law? Public Act 93-0523 is an amendment to the Open Meetings Act. As such, all of the penalties contained within the Open Meetings Act apply to a failure to fulfill these new obligations. Those penalties are quite severe. First, a court can order a governmental body and any of its officials to fully comply in the future with the provisions of the Open Meetings Act. The court can grant an injunction against future violations of the Act and can enforce such an injunction through contempt of court proceedings. The court can order the public body to make available to the plaintiff in the case the tapes of closed meetings after he or she has reviewed them in private. The court can declare null and void any final action taken at a closed meeting in violation of the Open Meetings Act. If, for example, in a closed session, a governmental body discusses whether or not to enter into a contract, the subject of which could not be discussed in a closed session, the court may be able to invalidate a later public action taken to authorize this contract if the public did not have a right to hear the pro and con arguments made by the parties in the closed session.

A violation of the Open Meetings Act can be punished by conviction of a AClass C@ misdemeanor. A person convicted of a violation of a AClass C@ misdemeanor is subject to a fine of up to $500.00 and imprisonment for up to 30 days. Finally, attempts to correct violations of the Open Meetings Act can be brought by the state=s attorney of the county in which the municipality is located or by any person. In the event that the lawsuit to enforce rights under the Open Meetings Act is brought by a private person who is successful in that litigation, the Court may assess reasonable attorneys fees and other litigation costs against the party who substantially prevailed in the lawsuit. Therefore, a private party can recover his or her attorney=s fees. A government, which battles against and prevails in a lawsuit filed by a private party may make an application to have its attorney=s fees and other litigation costs paid, but the court is only to assess such costs where the actions of the private party were malicious or frivolous in nature.

If we have more litigation in this State arising out of the Open Meetings Act, we will probably learn whether, as a practical matter, public officials who simply attended a meeting which was not recorded will be held responsible. The decision as to whether to prosecute only the individuals who failed in their assigned responsibility to record or decided not to record, or, to prosecute all in attendance, will likely be left up to state=s attorneys in the various counties. Another interesting issue is whether a person can escape prosecution by speaking up at a closed session which is not being taped and objecting to a continuation of the meeting. Obviously, the safest thing for a person attending a closed session, which is either being conducted in an improper way or, in addition, is not being taped, is to leave the meeting and report the potential violation of the Act in writing to the state=s attorney in writing.

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