On December 1, 2023, the Public Access Counselor (“PAC”) issued opinion PAC 23-014 and held that closed session meeting minutes must be approved in open session. At issue was the Village of Skokie’s practice of approving closed session meeting minutes during a closed session meeting. A trustee on the Village Board filed an Open Meetings Act (“OMA”) Request for Review with the PAC. Ultimately, the PAC found that all action, even approval of closed session meeting minutes must be done in open session, as no final action can be taken in closed session under Section 2(e) of OMA. Therefore, the Village’s practice of approving closed session meeting minutes violated OMA.

This issue has been an open question under the OMA for many years with many governmental entities, on the advice of counsel, taking the position that approval of executive session minutes in open session could subject those minutes to production under Section 7(1)(f) of the Freedom of Information Act (“FOIA”). FOIA provides at Section 7(1)(f):

(f) Preliminary drafts, notes, recommendations, memoranda, and other records in which opinions are expressed, or policies or actions are formulated, except that a specific record or relevant portion of a record shall not be exempt when the record is publicly cited and identified by the head of the public body. The exemption provided in this paragraph (f) extends to all those records of officers and agencies of the General Assembly that pertain to the preparation of legislative documents. 5 ILCS 140/7(1)(f).

In order to avoid the application of Section 7(1)(f) of FOIA, which could plausibly be argued to require the production of draft minutes referred to by a Village President in open session, executive session minutes have been approved by many governmental bodies in closed session. Until this binding opinion, the PAC has not spoken on this issue.

Additionally, the language of Section 2(c)(21) of OMA has created confusion, which states that public bodies can go into closed session for the “discussion of minutes of meetings lawfully closed under this Act, whether for purposes of approval by the body of the minutes or semi-annual review of the minutes as mandated by Section 2.06.” 5 ICLS 120/2(c)(21).

The PAC, in reconciling the language of Section 2(c)(21) of OMA, stated:

Although Section 2(c)(21) of OMA provides that closed session minutes may be discussed in closed session for purposes of approval by the body the plain language of the exception does not state that the approval itself may occur in closed session. Sections (2)(c)(21) and 2(e) of OMA may be read together and construed harmoniously to mean public bodies may enter closed session to discuss whether to approve closed session minutes before returning to open session to take final action on the approval of those minutes. Such a construction is consistent with the plain language of each provision and gives effect to both of them.

PAC Opinion 23-014, pg. 4. As such, with this opinion, the PAC has held that Section 2(c)(21) of OMA’s “approval” language does not authorize public bodies to approve closed meeting minutes within a closed session.  Public bodies may still review and revise closed meeting minutes in closed session. In light of this opinion, if a public body was approving closed meeting minutes in closed session, the public body needs to (1) stop approving closed meeting minutes in closed session; (2) start approving closed meeting minutes in open session and (3) determine if you need to take action in open session to approve all previous closed session minutes, either as part of your semi-annual review resolution or in a separate resolution. It is recommended that a resolution listed as an action item on an agenda, be used to make the semi-annual determinations regarding the approval and release of certain closed meeting minutes and the approval and retaining as confidential of other closed meeting minutes. As such, your prior semi-annual review resolutions may have already approved your closed meeting minutes in open session. We recommend you review your procedures with your legal counsel in light of this recent opinion.

Authored by: