PAC: Public Bodies May Not Approve Closed Session Minutes in Closed Session

by Michael Castaldo III

It is standard practice for public bodies to keep written minutes of all their closed session meetings, along with verbatim recording. But what is the appropriate procedure once closed session minutes are created? The Illinois Attorney General’s Public Access Counselor (“PAC”) recently took up that question in a binding opinion.

In that case, a Village Trustee filed a request for review alleging that the Village’s Board of Trustees violated Section 2(e) of the Open Meetings Act (the “Act”) by taking final action on a matter during a closed session meeting. At issue was the Village’s practice of approving—in closed session—the Board’s meeting minutes from its prior closed session meetings.

Ultimately, the PAC found that all action, even approval of closed session meeting minutes, must be done in open session to avoid violating the Act.

At first blush, the PAC’s conclusion appears obvious. The Act provides that “[n]o final action may be taken at a closed meeting.” Instead, final action must be “preceded by a public recital of the nature of the matter being considered and other information that will inform the public of the business being conducted.”

However, in its response to the PAC’s inquiry, the Village argued the Board’s actions were intended to maintain the confidentiality of the underlying closed sessions subject matter. Put another way, the Village claimed that voting to approve closed session minutes is linked with the content of the minutes, and airing out the approval process in open session may jeopardize the confidentiality of the minutes. Indeed, this issue arises periodically, as some public bodies fear that approving closed session minutes in open session could subject them to production under the Freedom of Information Act.

The PAC tried to address this argument by stating open session action “to approve closed session minutes does not compromise a public body’s ability to maintain the confidentiality of the substance of closed session discussions.” Yet, the PAC did not directly say whether the approval of closed session minutes is even required until a public body deems the content no longer requires confidential treatment.

So, what is the proper way to discuss closed session minutes? The Act says that “[d]iscussion 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” is a permitted subject for deliberation in closed session.

Once created, public bodies must periodically (but no less than every six months) meet to review minutes of all closed meetings. During these reviews, the public body must decide in open session whether (1) the need for confidentiality still exists as to all or part of those minutes, or (2) the minutes or portions thereof no longer require confidential treatment and are available for public inspection.

In attempting to resolve the apparent confusion surrounding this part of the Act, the PAC held that closed session minutes may be discussed in closed session for purposes of approval by the body, but the Act does not allow the approval itself to occur in closed session.

In light of this opinion, we recommend reviewing your current closed session and minute taking procedures with your legal counsel to ensure compliance with the Act.