Closed sessions “wholly dedicated” to discussion of leasing property allowed under the Open Meetings Act

On July 18, 2007, the second district appellate court held that two meetings closed to the public for the purpose of discussing the lease of property owned by a public body did not violate the Open Meetings Act.¹ Thus, the trial court erred when it required public officials to disclose minutes and tapes of the meetings that news organizations claimed were illegally closed to the public.

In Galena Gazette Publications, Inc. v. County of Jo Daviess, 375 Ill. App. 3d 338, 872 N.E.2d 1049, 313 Ill. Dec. 660 (2007), the Jo Daviess County Board, the Jo Daviess Planning and Development Committee, and the Galena City Council, all public bodies, held two meetings to discuss issues relating to a property known as the “Old Train Depot,” which the City of Galena owns. Public officials convened a special meeting on April 7, 2005, and met in “executive session” to discuss a variety of topics relating to the subject property, including a prospective arrangement for racking informational brochures and tourism materials. Four days later, a second closed meeting was held at which time the participants continued their previous discussion. After the county board refused to disclose the tapes and minutes of the two meetings, the plaintiffs filed suit seeking relief. They asked the court to order the defendants to release the records in question and to enjoin the defendants permanently from further statutory violations.

The defendants acknowledged that they were public bodies but claimed they had not violated the Act. Following discovery, both parties moved for summary judgment. The plaintiffs relied on section 2 of the Act,² which provides that closed meetings by public bodies are permissible only to consider the purchase, sale, or lease of real property. The plaintiffs argued that none of the Act’s exceptions applied to the defendants’ activities and that the public could not be legally excluded from routine business discussions about the train depot, such as the racking of promotional materials. The defendants countered that the statute protected the discussions held behind closed doors because they dealt entirely with the potential lease and sublease of the subject property and not just with the “day-to-day operations of the Train Depot.”³

The circuit court granted the plaintiffs’ motion for summary judgment holding that the discussions at the two meetings were not exempt under the Act. On appeal, the defendants claimed that summary judgment was proper for them because the records sought by the plaintiffs related entirely to exempt matters.

The second district appellate court reversed and entered summary judgment in favor of the defendants. The court said there was no real dispute that the closed meetings were held “at least in part”⁴ to consider the lease of the subject property for the use of a public body. Presiding Justice Grometer, writing for a unanimous court, found that the meetings were dedicated at least “in large measure”⁵ to the consideration of matters that were within the plain meaning of the law.

The court, however, cautioned that if the meetings were also held to consider subjects beyond any statutory exemption, then the meetings were improperly closed and disclosure of the records to the plaintiffs would be required. At this point in the opinion, the court stated that it had read the minutes of the two sessions and was convinced that “[m]ost of what was said at the first meeting, and all of what was said at the second meeting, was straightforwardly directed toward whether and on what terms”⁶ a sublease of the property could be negotiated. Thus, the second district concluded that the closed sessions were “wholly dedicated”⁷ to the discussion of the lease of the subject property for the use of Jo Daviess County. “Even when the participants discussed the racking of promotional brochures at the Old Train Depot—past, present, or future—they did so only because it was pertinent to the terms, effects, or desirability of the proposed subleasing arrangement.”⁸

In the final analysis, it seems that the courts will not get involved in matters involving closed meetings of public bodies where a discussion relates to a real estate transaction. The courts need not consider such questions on a case by case basis.
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*The author is the Assistant General Counsel of the Illinois Department of Revenue and a member of the Standing Committee on Government Lawyers. The opinions expressed herein are solely his and not those of the Department.

1. 5 ILCS 120/1 et seq. (West 2004).
2. 5 ILCS 120/2 (West 2004).
3. Galena Gazette, 375 Ill. App. 3d at 342, 872 N.E.2d at 1052, 313 Ill. Dec. at 663.
4. Galena Gazette, 375 Ill. App. 3d at 343, 872 N.E.2d at 1053, 313 Ill. Dec. at 664.
5. Galena Gazette, 375 Ill. App. 3d at 343, 872 N.E.2d at 1053, 313 Ill. Dec. at 665.
6. Galena Gazette, 375 Ill. App. 3d at 343, 872 N.E.2d at 1054, 313 Ill. Dec. at 664.
7. Galena Gazette, 375 Ill. App. 3d at 344, 872 N.E.2d at 1054, 313 Ill. Dec. at 665.
8. Galena Gazette, 375 Ill. App. 3d at 344, 872 N.E.2d at 1054, 313 Ill. Dec. at 665.