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WILLIAM J. SCOTT —
ATTORNEY GENERAL
STATE OF ILLINOIS
SPRINGFIELD
July 28, 1930
PILE KO. $-1501 4 \
MEETINGS :
Tapa Recordings
Honorable Dennis P. Ryan .
State's Attorney, Lake County,
County Suilding
Waukegan, Illinois 60085
Dear Mr. Ryan:
my opinider t poth Actions constitute violations of “AN 1979, ch. 102, par. 41 et seq.}, hereinafter referred to as the Open Heatings Act.
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Henorable Dennis FP. Ryan - 2.
Section 2.05 of the Act CZ11. Rev. Star. 1979, eh. 102, par. 42.05) provides:
“Subject to the provisions of ‘An Act in relation to the rights of witnesses at proceadings conducted by a court, comalesion, administrative agency or other tribunal in this Stare which are televised or broadcast or at which motions pictures are taken’, approved July 14, 1953, as amended, the procesdings at meetings required to be open by thie Act may be recorded by any representativa of any news medium as defined in ‘An Act concerning disclosure of the sources of information obtained by certaia persons in the news media’, approved September 23, 971, by tape, film or other means. The anzhoricy holding the meeting shall prascribe reasonable rules te govern the right to make such recordings.
If a wituess at any meeting required to be open by this Act which is conducted by a commission, ad- ministrative agency or other tribunal, refuses to testify on the grounds that he may not be compelled te testify if any portion of his testimony is to be broadcast or televised or if motion pictures are to be taken of him while he is testifying, the authority holding the meeting shall prohibit such recording during the testimony of the witness. Nothing tu this Section shall be construed to extend the right to refuse to testify at any meeting not subject to the provisions of ‘An Act in relation to the rights of witnesses at proceedings conducted by a court, cormission, adminfietrative agency or other tribunal in this State which are televised or broadcast or at which motion pictures ara taken’, approved July 14, 1953, as anended,”
This provigion was enacted approximately two years after I advised, in opinion No. $-867, issued February 4, 1975, that a governmental body may not prevent the tape recording ef a public meeting. (1975 TLL. Act'y Gen. Op. 17, 20.) In that oplaion, I specifically discussed the right of a private individual to bring an electrenic recording device to a public meeting.
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Honorable Pennis P. Ryan ~ 3, The lesue thus raised is whether in enacting a pro- vision which specifically graute representatives of thea news media the right to record a public meeting, the General Assembly meant to grant a public bedy the authority to prevent the tape recording of a publie meeting by any other person, There is neo language in section 2.05 which shows any intent on the part of the General Assembly to change the law or which limits the right of any individual to record a meeting; and there is no provision in the Open Meetings Act or other statute which grants a public body the authority to prevent recording (other than to praserva decorum and prevent interference with the proceedings). Section 2.93 only makes the right to record by news media representatives explicit and makes clear that the public body hae authority to prohibit recordings 1£ requested by certain witnesses.
Section 2.03 was added by, Public Act 80-862 (H.B. 796) which aise added paragraph (e) to section 14-3 of the Criminal Code af 1961 (ILL. Rev. Stat. 1979, ch. 38, par. 143), which exenpte "[xrlecording the procsedings of any meeting required to be open * * *" from the criminal provisions relating to eavesdropping. This provision applies to all recordings, not just those by representatives of the news media.
The interpretation that by adding section 2.05 the General Assembly did not intend to limit the right of any individual co record a meeting is confirmed by the debates.
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Honorable Dennis P. Ryan ~ 4.
In the Senate debates concerning House Bill 796, Senator Himrod stated:
" & te * ok * What. this bill docs, ie it provides for the confirmation to put ie i iietative Langus ge the Attorney General's skal 8 opin ie thia particu ar rigne te implicit. ¥ * Tea putting this into the law, of course, only. allows them to enforce the right thet they already have. * * * oo
EIS
wo OF ; I just want to state, Senator vonnewaid, ‘that I bave in my hend bere from the Journal Courier in. Jacksonville on May 17th, the most recent dates. that are involved, that there was a physical removal of & television crew from a nearing and in opposition to the right which they already have and I would hope that all this bill does is put the Attorney General's opiaion into Statutes. * * *" (imphasia added.) . (lilineis Senate Bebates, Jiume 27, 1977, at 1L1, 112.)
Secondly, you inquire as to the extent to which tha attorney-client privilege may be aseerted ag a basia for con- ducting deliberations of 2 public body in a closed session. The inguiry is based on a set of facts which you related as follows:
ae kee The taxpayer's association circulated a petition under §léZa cf the Revenue Act (I11L. Rev. Stat. (1977), Ch. 120, [par.] 6434), which requested that a refer- endum be conducted on 2 question of public policy vélating to the reductien of the maximum tax rate of the library district. The petition was present to the secretary of the district’s board. At the first meeting of the board subsequent to the pre- sentation of the petition, the beard met in closed session for the purpose of consulting ‘privately with the attorney in order that he might explain to the beard the petition itself and the statutory basis for it’. According to the statement of the president of the board of trustees the sole matter discussed during the clesed session was the attorney's ‘advice
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honorable Uenmis PP. Ryan .« 5, om the legal background of the petitioner 8 action ard on the library board's avallable options in considering the position’, ineluding responses by the attorney, to ‘individual board members‘ questions m the matter’
Ags you noted in your letter:
iad ee *& * # &1T]ie Open Meetinage Act dees not contain any exception for discussions between attorney and client except as they relate to pending litigation. “However, in People ex rel. To fv. Barger, 332 0.0. 649 (ind bist. (3735 the Appellate Court stated ia dieta that advance legal consultation between a pubiic bacy and its attorney on prospective litiga- tien, does not constitute a ‘meeting "SF ‘the governmental body as contemplated in the Act and thus is not covered by the Act. * * wow the court in Barger sugsested two reasons for the need to allow a public bedy to consult with its atterney in limited cir- cumstances concerning prospactive Litigation:
(1) It would not be in tha public iuterest to require a public body to discues foreseeable Litigation with its attorney iu an open meeting becauge it would give a potential | private adversary a litigious acvantaze ever the public. .
Closed sessions between a public body and . its attorney are sometimes necessary to preserve the confidentiality of confidential information which the public body must relate to ite attorney in order for him to de a pro- fessional job.
From the facts as you stated thes ta your letter end quoted above, I see nothing which indicates a legitimate reason for closing the meeting. Ne litigation was pending or reasonably foreseeable and no confidential information was _
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Honorable Deunis P. Ryan - 6.
discussed. The library board is required to place the pre- . position for lowering the tax rate Limit on the ballot if technical requirements are met, If these requirements are met, the board has uo option. The petition iteelf and the statutory basis for it are public knowledge. | } It is impossible te state precisely the extent to. Which the attorney-elLent privilege may be asserted as a basis for conducting deliberations of a public bedy in a closed session. The court in Barger, in recognizing ia dicta that advance consultacions between a publie body and its | attormmey are uot subject to the Open Meetings Act, stated at page 936:
This does not maan, of course, that con- sultations by a governing body with an attorney in private may be used as a device to thwart the liberal implementation of tha poliey that the decision-making preeesa is to be open and that confidentLality is to be strictly limited. The balance between the two must always be resolved in the public interest on a case-by-case basis, . ao . ”
(Feople ex rel. Hopf v. Lerger (1975), 30 1211.
The court in the Barger case did not find sufficient reason to justify closing the meeting. I do not find sufficient reason to clese the meeting on the facts you present.
Very truly yours,
ATTORSAEY GERERAL