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Illinois FOIA & OMA Reference

5 ILCS 120/2(c)(11)

OMA

Pending, probable, or imminent litigation

Pending, probable, or imminent litigation

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Read the full statute text on /statutes →

Jump to the 19 issues decided under this provision, with a drafting brief ↓

3 upheld (no violation found) · 9 rejected (violation found) · 4 partial violation · 2 closed / insufficient info / other, out of 18 documents.

Not legal advice, and not a per-exemption ruling — this reflects each document's overall disposition. See the FAQ disclaimer.

How the Public Access Counselor has treated 5 ILCS 120/2(c)(11)

This exception allows a public body to hold a closed session to discuss pending litigation, or litigation that is probable or imminent. It is listed as 5 ILCS 120/2(c)(11) and is raised when a council, board, or committee closes a meeting to talk about lawsuits, threatened claims, or other legal disputes.

In these decisions, the PAC has applied the exception narrowly. It found violations where bodies discussed intergovernmental agreements, ordinances, permit merits, or salary matters in closed session without showing the discussion fit the litigation exception, and where bodies failed to state and record the basis for finding litigation probable or imminent. It found no violation where closed discussion involved a pending lawsuit, property tax appeal, or resolution tied to litigation, and closed other matters without further action on minute review or verbal citation issues.

At a glance: 18 documents from 2012 to 2024(5 binding opinions, 13 determination letters). Most often cited alongside: 5 ILCS 120/2(c)(1) (Employee/contractor appointment, discipline, or performance) (2); 5 ILCS 120/2(c)(2) (Collective negotiating matters / salary schedules) (1); 5 ILCS 120/2(c)(3) (Filling a public office / removing an office-holder) (1); 5 ILCS 120/2(c)(5) (Purchase or lease of real property) (1); 5 ILCS 120/2(c)(6) (Setting a sale/lease price for public body's own property) (1).

Recurring issues

Practical points

Summary drafted from the linked decisions and checked against them; read the decisions themselves before relying on it. Not legal advice.

All 18 documents citing 5 ILCS 120/2(c)(11)

Issues decided under 5 ILCS 120/2(c)(11)

Individual questions the Public Access Bureau decided under this provision, with the rule it applied, grouped by outcome. Extracted automatically from the letters; check each source letter.

19 issues across 11 determination letters:9 violation found · 10 no violation.

Counts are per issue, not per letter, and come from automated extraction checked against sampled letters. Determination letters are not binding precedent.

Authorities the Bureau cites most on this issue

How to challenge a denial on this issue

AI-generated summary of the decisions listed on this page, with each point linked to the letters it comes from. Determination letters are not binding precedent and this is not legal advice. Open the letter and check the PDF before relying on any point.

When a challenge is strong

When the public body usually wins

Points to put in your letter

Common mistakes

Facts to gather first

  • The date of the closed session and whether the meeting minutes or recording state a finding and specific basis for probable or imminent litigation or identify a pending lawsuit.
  • What topics were actually discussed in the closed session—litigation tactics and risks, or the merits and policy options of the underlying matter.
  • Whether a lawsuit was already pending at the time, and whether the public body was a named party or would be substantially affected by the outcome.
  • Any written or verbal threats from attorneys or parties; whether they showed imminent or likely litigation or only a future possibility.
  • The body's stated exemption or explanation in the agenda or minutes, including any general attorney-client privilege or deliberative-process claim.

These notes reflect only the listed non-binding Public Access Bureau determination letters; outcomes depend on the specific closed-session record and facts, so verify the PDF and do not treat this as legal advice.

Drafting brief for an AI assistant

Copy this into your assistant to help draft a request, appeal, or challenge to a denial that turns on this issue. It carries the rules and decisions, not your facts: add those yourself. Machine-readable version: oma-2-c-11.json.

Violation found (9)

  • Improper closed session under section 2(c)(11)

    Rule: A public body may close a meeting for probable or imminent litigation only if it has reasonable, specifically identified grounds that litigation is close at hand or more likely than not to ensue.

    Violation found Closed-session discussion of a board member removal · April 26, 2024

  • March 10, 2022 closed session procedural rule changes

    Rule: No OMA exception permits closed session merely because a subject is part of the body's deliberative process, and a general attorney-client privilege claim does not authorize closure.

    Violation found Closed-session discussion of audit status and rule changes · October 3, 2023

  • Improper use of section 2(c)(11) closed session exception

    Rule: A public body may not use the litigation exception to discuss the merits of an underlying issue unless litigation is probable or imminent and the discussion is limited to litigation strategies, postures, theories, and consequences.

    Violation found A city council's closed-session discussion of a conditional use permit · July 5, 2022

  • Section 2(c)(11) closed session finding requirement

    Rule: A public body must make and record a finding that litigation is probable or imminent before using the litigation exception.

    Violation found Closed session discussion of an intergovernmental agreement · October 25, 2021

  • Section 2(c)(11) reasonable belief in probable or imminent litigation

    Rule: The litigation exception requires reasonable grounds to believe litigation is probable or imminent, not merely a future threat.

    Violation found Closed session discussion of an intergovernmental agreement · October 25, 2021

  • Section 2(c)(11) discussion limited to litigation strategies

    Rule: Even if litigation is probable or imminent, closed session discussion must be limited to legal theories, defenses, claims, or approaches to litigation.

    Violation found Closed session discussion of an intergovernmental agreement · October 25, 2021

  • Discrete portion of closed session outside scope of section 2(c)(11)

    Rule: A discrete portion of the closed session did not pertain to litigation strategies, posture, theories, or consequences, so the Commission must disclose that portion of the recording.

    Violation found Closed-session discussion of non-litigation matters · October 5, 2018

  • Unauthorized closed session discussion under litigation exception

    Rule: A public body must find that litigation is probable or imminent and record the basis; mere possibility of litigation does not satisfy the exception.

    Violation found Closed-session discussion of potential litigation · February 1, 2018

  • Closed session discussion exceeded scope of litigation exception

    Rule: The litigation exception does not authorize deliberation on the merits of the underlying matter, only litigation strategy and related issues.

    Violation found Closed-session discussion of kindergarten programming · October 6, 2017

No violation (10)

  • Whether Board of Review is an administrative tribunal

    Rule: The Board of Review is an administrative tribunal because it is an administrative agency exercising a quasi-judiciary function.

    No violation Closed-session discussion of a property tax appeal · July 20, 2023

  • Whether pending action affected District 211

    Rule: A public body may discuss in closed session a pending action that affects it, even if it is not the named party, because the outcome substantially impacts its property tax revenue.

    No violation Closed-session discussion of a property tax appeal · July 20, 2023

  • Whether probable or imminent litigation was required

    Rule: Section 2(c)(11) permits closed session for pending litigation as an alternative to probable or imminent litigation, so no finding of probable or imminent action is required.

    No violation Closed-session discussion of a property tax appeal · July 20, 2023

  • Whether closed session discussion was within scope

    Rule: Once the litigation exception is properly invoked, only the strategies, posture, theories, and consequences of the litigation may be discussed in closed session.

    No violation Closed-session discussion of a property tax appeal · July 20, 2023

  • Whether litigation was probable or imminent for closed session

    Rule: Credible threats of litigation from attorneys for both sides provided reasonable grounds to believe litigation was at least probable when the Council entered closed session.

    No violation Closed-session discussion of litigation and a resolution · August 1, 2023

  • Whether closed session discussion improperly strayed into resolution merits

    Rule: Discussion of the resolution was inextricably intertwined with probable litigation considerations, so it was permissible under the strict construction of the exception.

    No violation Closed-session discussion of litigation and a resolution · August 1, 2023

  • Closed session discussion scope under section 2(c)(11)

    Rule: A public body may discuss in closed session a pending lawsuit that affects it, limited to the litigation's strategies, posture, theories, and consequences.

    No violation A town council's closed-session discussion of litigation strategy · January 30, 2023

  • Closed session discussion of probable litigation under section 2(c)(11)

    Rule: The vast majority of the closed session concerned probable or imminent litigation and was within the scope of the section 2(c)(11) exception.

    No violation Closed-session discussion of non-litigation matters · October 5, 2018

  • Closed session under section 2(c)(11)

    Rule: A public body may close a meeting to discuss probable or imminent litigation, limited to strategies, posture, theories, and consequences of the litigation.

    No violation Emergency board meeting on personnel and litigation · July 14, 2017

  • Improperly entering closed session under litigation exception

    Rule: A public body may enter closed session if it has reasonable grounds to believe litigation is more likely than not to be instituted or imminent.

    No violation Closed-session discussion of kindergarten programming · October 6, 2017