dissenting:
The motion for discovery in its present form should be denied. The Association argues that the Open Meetings Act does not apply to the present proceeding because it is exempted by section 18 of the Education Labor Relations Act (Act). (Ill. Rev. Stat. 1985, ch. 48, par. 1718.) The school district argues that the Open Meetings Act and the Educational Labor Relations Act be read together, are not in conflict with each other, and that pursuant to section 2a (Ill. Rev. Stat. 1985, ch. 102, par. 42a) of the Open Meetings Act, collective negotiating matters are exempt from the requirement that it be an open meeting. This argument is unnecessary. The following is my reasoning.
The Open Meetings Act as passed, approved and effective July 11, 1957, and amended subsequently thereto, provides in section 1, “[i]t is the public policy of this State that the public commissions, committees, boards and councils and the other public agencies in this State exist to aid in the conduct of the people’s business. It is the intent of this Act that their actions be taken openly and that their deliberations be conducted openly.” (Ill. Rev. Stat. 1985, ch. 102, par. 41.) Prior to the passage of the Open Meetings Act, there were no statutory controls with respect to private meetings of such boards and agencies. This act set forth the procedure which should be followed with respect to such meetings. Section 2 provides that all meetings of public bodies shall be open to the public, with specific exceptions. Collective negotiating matters between public employers and their employees or representatives is an exception. Ill. Rev. Stat. 1985, ch. 102, par. 42.
In order to better understand the legislative intent, we then go to the Educational Labor Relations Act (Ill. Rev. Stat. 1985, ch. 48, par. 1701 et seq.). Once again, the policy of that Act is to “promote orderly and constructive relationships between all education employees and their employers.” (Ill. Rev. Stat. 1985, ch. 48, par. 1701.) The purpose of the Act is to regulate labor relations between the employers and employees including the designation of representative, negotiation of wages, hours, and other conditions of employment and the resolutions of disputes arising under collective-bargaining agreements. Educational employers are required to negotiate and bargain with employee organizations representing educational employees and to enter into written agreements evidencing results of such bargaining and also to establish procedures to provide for the protection of the rights of the educational employee, the educational employer and the public.
Section 17 of the Act states “[i]n case of any conflict between the provisions of this Act and any other law * * * the provisions of this Act shall prevail and control.” (Ill. Rev. Stat. 1985, ch. 48, par. 1717.) Section 18 provides that “[t]he provisions of the Open Meetings Act shall not apply to collective bargaining negotiations and grievance arbitrations conducted pursuant to this Act.” (Ill. Rev." Stat. 1985, ch. 48, par. 1718.) Section 1 of the Freedom of Information Act (FOIA) states in part, “[t]his Act shall be the exclusive State statute on freedom of information, except to the extent *** other laws in Illinois might create additional obligations for disclosure of information to the public.” (Ill. Rev. Stat. 1985, ch. 116, par. 201.) Section 7(q) exempts “[documents or materials relating to collective negotiating matters between public bodies and their employees or representatives, except that any final contract or agreement shall be subject to inspection and copying.” (Ill. Rev. Stat. 1985, ch. 116, par. 207(q).) The Act and FOIA are not in conflict.
As stated heretofore, not only did the Open Meetings Act provide for an exception concerning collective-bargaining negotiations, but, under the provisions of the Educational Labor Relations Act, the Open Meetings Act was made inapplicable to educational labor relations problems.
The legislature has expressed a clear intent that negotiation matters conducted at board meetings should not be discoverable, are not subject to the Open Meetings Act, and are not subject to discovery under the Freedom of Information Act. The legislature did not intend to grant such authority to the Educational Labor Relations Board in the instant case. This is a matter of important public policy and the proper course for the judicial brand of government to follow is to deny the motion for discovery as requested by the Association in this case. If the legislative branch desires that the Educational Labor Relations Board should have the authority requested by the Board, it will bestow the same in unmistakable terms.
The majority stresses that the Open Meetings Act and FOIA do not involve privilege from required disclosure in litigation. Even Supreme Court Rule 201(b)(2) would not require disclosure of bargaining proposals, bargaining objections, strategy, tactics, or documents relating to discussions concerning bargaining.
Here, with respect to the Association’s discovery request, in every provision of the five paragraphs asking for discovery, the word “all” is used. Because of its “all” inclusive nature, it should be denied outright by this court and the trial court should be reversed.
This will, however, not terminate the discovery problems before the Board. The majority refers to Equal Employment Opportunity Com. v. University of Notre Dame Du Lac (7th Cir. 1983), 715 F.2d 331, as the principal basis of the procedure to be followed. However, in Equal Employment, which created a qualified privilege for peer evaluations and faculty evaluations of nontenured teachers, only documents were subject to review in the employment discrimination case. Names and identifying characteristics of the evaluators were deleted from the documents. No procedure for examining witnesses was set forth.
Examining party witnesses without counsel presents a due process problem. The court is in effect conducting a discovery proceeding, the outcome of which could be determinative of the unfair labor practice charge and the enforcement proceeding pending before the court.
If a party has the means to employ counsel, he has the right to be represented by a lawyer of his own choosing. (Zieger v. Manhattan Coffee Co. (1983), 112 Ill. App. 3d 518, 527, 445 N.E.2d 844, 851.) The right of a litigant to be represented by counsel is fundamental. This right exists in civil as well as in criminal cases and is a part of the process of law guaranteed by the constitution. (Magerstadt v. La Forge (Mo. 1957), 303 S.W.2d 130, 133.) This right is a valuable one, the unwarranted denial of which is held to be a fundamental error.
The in camera interrogation of witnesses with questions formulated by opposing attorneys presents a grave danger of denying the party from whom discovery is sought fundamental safeguards insured by due process. Here, the witness would potentially be providing damaging information later usable in the underlying unfair labor practice proceeding. He would not have benefit of counsel as to the legal ramifications of statements made in camera.
There should be no in camera examination of witnesses without the benefit of counsel. As to witnesses, the usual rules followed in dispositions, interrogatories and offers of proof should apply.
Secondly, the procedure sets forth no guidelines as to what constitutes a necessity for the information. The Association has not established a particularized need for the information but wishes the court to engage in a fishing expedition. Prior to the two-step procedure’s being initiated, the discovery request must be specific in scope.
If specificity is not required, the policies set forth in the Illinois Educational Labor Relations Act will not be served. Settlement of labor disputes will not be encouraged because the courts will become involved as discovery mechanisms whenever unfair labor practice charges are brought. Additionally, the added procedure will be time consuming.
With respect to motions for discovery, closed session meetings, I suggest we adopt procedures for discovery as set forth in the FOIA. The procedure set forth in section 11, FOIA, should be followed with respect to the Association’s request in the instant case. (Ill. Rev. Stat. 1985, ch. 116, par. 211.) The FOIA does not conflict with the Act. A request by the Association for specific discovery may very well be discoverable under the Educational Labor Relations Act and the Freedom of Information Act. To follow the procedures set forth in the Freedom of Information Act will provide guidance to an unbiased judge experienced in matters concerning evidence and litigation. A simple filing of a request pursuant to that act would permit the trial court to conduct an in camera examination of the request for records as it finds appropriate to determine if such records or any part thereof may be withheld under any provision of the FOIA. This of course would only apply when the request, made by either an employee, the certified bargaining representative of the employees, or the employer is appropriate, specific, and relevant to the controversy. Federal decisions certainly require such requests to be specific.
The Association argues that it feels the district is involved in unfair labor practice in that the district has made a decision not to settle the strike. If in fact this decision has been made, it is subject to discovery under the Freedom of Information Act and is appropriate in the instant case.
In summary, the Open Meetings Act with its exception for collective-bargaining negotiations, the passage of the Act, which specifically provides that the Open Meetings Act does not apply, and the availability of FOIA to both the employer and employees is adequate to indicate the legislative intent with respect to this matter. The motion for discovery in its present form should be denied. Any other motion for discovery should be specific.
This court should not find such authority in the agency or Board unless the statute under consideration confers it expressly or by unavoidable implication. The statute does not expressly confer the power sought to be exercised by the Board, the statutory reference to the Open Meetings Act and the implication of the application of the Freedom of Information Act do not justify a judicial determination that a power of such magnitude as requested by the teachers and ordered by the Educational Labor Relations Board should arise by implication.
This may very well hamper the Educational Labor Relations Board in the discharge of its function with the greatest effectiveness; however, that is a legislative consideration which this court should not be involved in.