Joliet Township (ECWd) -
Information gleaned from the June 11, 2019, Joliet Township Board of Trustees closed session audio recording is shocking.
This is the first time we have an irrefutable witness to the township's attorney essentially demanding the board violate the Open Meetings Act by receiving legal advice in a closed session and demanding they stop recording the meeting in order for such advice to be given.
One of the key requirements of entering a closed meeting is that a verbatim recording be made and maintained of the entire closed session, from beginning to end. This means every word spoken outside of the public's view be audio or video recorded by the clerk. No exceptions.
**Section 2.06(a) "All public bodies shall keep written minutes of all their meetings, whether open or closed, and a verbatim record of all their closed meetings in the form of an audio or video recording."
In this recording, we can hear the township's attorney explain that he will give them legal advice only after the audio recorder is turned off. Citing current events in Washington D.C., he tells the board that his legal advice is subject to attorney-client privilege and he will not render the advice if it is being recorded. Interesting position since it is the client that determines what they want to keep privileged, not the attorney.
According to the Illinois State Bar Association's Media Law Handbook, Chapter 3, (page 3 here), a public body may not close a meeting to "simply hear legal advice from an attorney."
There are other legal mechanisms to protect attorney-client privileged information from becoming public, such as redactions, should the recording be released or ordered to be released but such redactions are under the control of the public body, not the attorney.
In this particular recording, the attorney insisted he give his advice only after the recorder was turned off. The Township Clerk attempted an argument that the attorney has, in the past, provided his advice while the meeting was being recorded. She even tried to get him to acknowledge, on the record, that he wanted to give his advice to the board "off the record." But the attorney was hearing nothing of that argument and didn't want to discuss it with her.
Listen to it here:
Federal Courts have determined that attorney-client privileged information and advice given in closed session may be redacted prior to releasing the audio recording under court order. Additionally, the Attorney General is prohibited from releasing closed session recordings and minutes, which maintains any privileges asserted, however, a public body may not redact the privileged information (see page 2) prior to giving it to the Attorney General's PAC under a request for review, but at the same time providing it to the AG does not waive any privilege asserted.