OMA section 2(c)(11)
OMAPending, probable, or imminent litigation
5 ILCS 120/2(c)(11). Pending, probable, or imminent litigation
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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 Determination letters are not binding precedent.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
- Ill. Att'y Gen. Op. No. 83-026 cited 7 times
- City of Bloomington v. Raoul, 2021 IL App (4th) 190539, __ N.E.3d __ (2021) cited 6 times
- Closed-session discussion of possible litigation (Pub. Acc. Op. No. 16-007) cited 4 times
- Unrecorded closed-session landfill ordinance discussion (Pub. Acc. Op. No. 12-013) cited 3 times
- Henry v. Anderson, 356 Ill. App. 3d at 956-57 cited 2 times
- 1983 Ill. Att'y Gen. Op. No. 26 cited 2 times
- Henry v. Anderson, 356 Ill. App. 3d 952, 957 (4th Dist. 2005) cited 2 times
- A city council's closed-session discussion of a revenue-sharing agreement (Pub. Acc. Op. No. 17-004) cited 2 times
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 Determination letters are not binding precedent and this is not legal advice.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
- The closed-session minutes or recording do not show a recorded finding and specific basis that litigation was probable or imminent before the body closed the meeting. The Bureau found violations where the body did not make and record the required finding, or relied on the mere possibility of litigation.Based on: 2021 · Closed session discussion of an i… · 2018 · Closed-session discussion of pote…
- The closed discussion was about the merits, policy options, or underlying issue rather than litigation strategies, posture, theories, or consequences. The Bureau found the exception was exceeded where the session deliberated on the merits or underlying issue rather than litigation strategy.Based on: 2022 · A city council's closed-session d… · 2017 · Closed-session discussion of kind… · 2021 · Closed session discussion of an i…
- The body justified closure only by saying the subject was part of its deliberative process or by a general attorney-client privilege claim. The Bureau found no OMA exception permits closure merely for deliberative process and a general attorney-client privilege claim does not authorize closure.Based on: 2023 · Closed-session discussion of audi…
- Only a discrete portion of the closed session concerned litigation; the rest did not. The Bureau ordered disclosure of a discrete portion of a recording that did not pertain to litigation strategies, posture, theories, or consequences.Based on: 2018 · Closed-session discussion of non-…
- The body pointed to a future threat or possibility of suit, not litigation that is close at hand or more likely than not. The Bureau found a violation where the litigation exception requires reasonable grounds to believe litigation is probable or imminent, not merely a future threat.Based on: 2021 · Closed session discussion of an i… · 2024 · Closed-session discussion of a bo…
When the public body usually wins
- The body entered closed session after credible threats of litigation from attorneys on both sides. The Bureau found those threats provided reasonable grounds to believe litigation was at least probable when the Council entered closed session.Based on: 2023 · Closed-session discussion of liti…
- The closed discussion was about a resolution that was inextricably intertwined with probable litigation considerations. The Bureau accepted that discussion as permissible under the strict construction of the exception.Based on: 2023 · Closed-session discussion of liti…
- A pending action affects the public body even though it is not the named party, because the outcome substantially impacts its revenue or other interests. The Bureau found a public body may discuss a pending action that affects it, not just one in which it is a named party.Based on: 2023 · Closed-session discussion of a pr… · 2023 · A town council's closed-session d…
- The body is relying on a pending action, not probable or imminent litigation, and the discussion stays within the litigation's strategies, posture, theories, and consequences. The Bureau found section 2(c)(11) permits pending litigation as an alternative to probable or imminent litigation, so no probable-or-imminent finding is required.Based on: 2023 · Closed-session discussion of a pr… · 2023 · Closed-session discussion of a pr…
- The body had reasonable grounds to believe litigation was more likely than not to be instituted or imminent, and the closed session was mostly within litigation strategy, posture, theories, and consequences. The Bureau found no violation where entry was justified and the discussion stayed within the exception; in one case the vast majority of the session concerned probable or imminent litigation and was within scope.Based on: 2017 · Closed-session discussion of kind… · 2017 · Emergency board meeting on person… · 2018 · Closed-session discussion of non-…
Points to put in your letter
- Ask for the specific recorded finding and factual basis showing litigation was probable or imminent—or actually pending—before the closed session; a bare citation or future possibility is not enough.Based on: 2021 · Closed session discussion of an i… · 2018 · Closed-session discussion of pote… · 2021 · Closed session discussion of an i…
- Say the closed session was limited to litigation strategies, posture, theories, and consequences; deliberations on the merits or underlying policy are not covered.Based on: 2022 · A city council's closed-session d… · 2017 · Closed-session discussion of kind… · 2021 · Closed session discussion of an i…
- Reject a general deliberative-process or attorney-client privilege justification; neither, standing alone, authorized closure in the Bureau decisions.Based on: 2023 · Closed-session discussion of audi…
- If part of the closed session was outside the litigation exception, ask for the discrete portion of the recording or minutes to be disclosed even if the rest was proper.Based on: 2018 · Closed-session discussion of non-…
- If the body relies on a pending lawsuit, check whether it can show the action affects the body and that discussion stayed within the lawsuit's strategies, posture, theories, and consequences.Based on: 2023 · Closed-session discussion of a pr… · 2023 · Closed-session discussion of a pr… · 2023 · Closed-session discussion of a pr…
Common mistakes
- Assuming a closed session was improper only because the public body was not a named party in the pending lawsuit; a pending action that affects the body can qualify.Based on: 2023 · Closed-session discussion of a pr… · 2023 · A town council's closed-session d…
- Demanding a finding that litigation was probable or imminent when the public body was relying on an already pending action; pending litigation is an alternative basis.Based on: 2023 · Closed-session discussion of a pr…
- Assuming that any discussion mentioning litigation is automatically within the exception; the discussion must be limited to litigation strategies, posture, theories, and consequences.Based on: 2022 · A city council's closed-session d… · 2017 · Closed-session discussion of kind… · 2021 · Closed session discussion of an i…
- Focusing on whether entry into closed session was proper and missing that a discrete portion of the discussion may still be outside the exception and subject to disclosure.Based on: 2018 · Closed-session discussion of non-…
- Assuming a general attorney-client privilege or deliberative-process label is sufficient to uphold the closure.Based on: 2023 · Closed-session discussion of audi…
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