dissenting:
I must respectfully dissent because I believe that the Illinois Educational Labor Relations Board (Board), rather than the circuit court, should make the in camera determination as to whether the materials protected by the qualified privilege should be disclosed.
Under the Illinois Educational Labor Relations Act (the Act) (Ill. Rev. Stat. 1987, ch. 48, par. 1705(h)), the Board is required to adopt rules and regulations regarding its procedures in accordance with the Illinois Administrative Procedure Act (the Administrative Procedure Act) (Ill. Rev. Stat. 1987, ch. 127, par. 1001 et seq.). Section 12 of the Administrative Procedure Act provides that in adjudicatory proceedings before administrative agencies, “[t]he rules of evidence and privilege as applied in civil cases in the Circuit Courts of this State shall be followed.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 127, par. 1012(a).) It is implicit from the language of section 12 of the Administrative Procedure Act that the General Assembly intended that administrative agencies themselves apply the rales of privilege in ruling on evidentiary questions. Accordingly, the Board, like many other agencies in Illinois, has promulgated rules governing privileged materials. (80 Ill. Admin. Code §1100.70 (1985); see also 32 Ill. Admin. Code §200.170 (1987) (Department of Energy and Natural Resources); 35 Ill. Admin. Code §168.270 (1985) (Environmental Protection Agency); 50 Ill. Admin. Code §2402.210 (1985) (Department of Insurance); 83 Ill. Admin. Code §200.610 (1987) (Illinois Commerce Commission).) Under each of these agency’s rules, the determination concerning the admissibility or discoverability of the allegedly privileged information is made by the agency.
Nevertheless, the majority takes the unprecedented step of holding that in this instance, the question of discoverability cannot be left to the Board, but rather must be decided by the circuit court. The basis for this decision is the majority’s fear that the Board will not be able to properly perform its adjudicatory function. According to the majority, the Board will be unable to disregard materials which it rules are inadmissible (132 Ill. 2d at 43-44), and will be unable to correctly apply the “necessity” standard in deciding whether privileged materials should be disclosed (132 Ill. 2d at 43-44).
The problem with the majority’s analysis is that it smacks of judicial snobbery. There is simply no reason to believe that the Board would be incapable of disregarding inadmissible evidence or would be likely to make incorrect decisions. More importantly, however, is that even if the majority’s fears did have some basis, it is not our role to speculate as to the competence of administrative agencies. Rather, that role belongs to the General Assembly, which, in giving administrative agencies the authority to adjudicate disputes and the responsibility to make evidentiary rulings, must have believed that agencies would be competent to perform such functions. Unless the delegation of adjudicatory powers violates the separation of powers doctrine, this court should not interfere with the General Assembly’s choice.
In this case, it is clear that in enacting the Illinois Educational Labor Relations Act, the General Assembly decided that the Board, rather than the circuit court, should adjudicate public educational labor disputes. This court has held that this delegation of adjudicatory powers to the Board does not violate the separation of powers doctrine. (See Board of Education of Warren Township High School District 121 v. Warren Township High School Federation of Teachers, Local 504 (1989), 128 Ill. 2d 155, 165-66.) It therefore must be presumed that the General Assembly believed that the Board would be able to disregard inadmissible evidence and properly rule on evidentiary questions, a belief that this court should not second-guess.
A second problem with the majority’s decision is that one of purposes of the Act is to provide for the expedítious resolution of public educational labor disputes. (Ill. Rev. Stat. 1987, ch. 48, par. 1701.) This purpose, however, will be frustrated by the majority’s approach. Under the majority’s approach, where a claim of privilege has been made, the circuit court will have to familiarize itself with the discovery that has already taken place in the case as well as the facts and issues underlying the dispute before it can determine whether there is a “com-polling necessity” for the information requested. The resulting delay, as well as “the delays inherent in the circuit court calendar” (160 Ill. App. 3d at 743 (Lund, J., specially concurring)), will only prolong the time it takes to resolve the underlying dispute. These delays would be avoided by having the Board decide whether the privileged material is discoverable, since the Board would already be familiar with the case.
The final shortcoming in the majority’s opinion is its contention that the circuit court should make the in camera determination because otherwise “a party to a labor dispute might fear that the Board would be subtly influenced if the Board were to view the privileged materials.” (132 Ill. 2d at 43.) This fact alone, it seems to me, scarcely justifies the extreme measure taken by the majority in this case. Nor does the argument, which is implicit in the majority’s opinion, that parties to collective bargaining would be reluctant to discuss bargaining strategy for fear that their statements would be used against them by the Board in reaching its decision (132 Ill. 2d at 35, 43) provide a sufficient justification for the majority’s decision. Even if we were to assume that this were true, the only way in which the Board could use privileged information against a party would be if that information indicated that the party was negotiating in bad faith. Thus, the only chilling effect that could conceivably occur would be the potential prevention of bad-faith negotiating strategizing. Such an effect, however, would further the goals of the Illinois Educational Labor Relations Act, which, among other things, imposes upon public educational employers and employees an affirmative obligation to negotiate in good faith (Ill. Rev. Stat. 1987, ch. 48, par. 1710(a)), and makes the refusal to do so an unfair labor practice (Ill. Rev. Stat. 1987, ch. 48, par. 1714(a)(5)).
The majority’s decision will have consequences reaching far beyond the context of educational labor disputes. I fail to perceive, and the majority does not explain, why the privilege in this case should be treated differently than any other privilege. Parties claiming a privilege in future administrative proceedings will seek, and under the majority’s reasoning should be entitled, to have the issue resolved in the circuit court rather than the agency, thus upsetting the heretofore well-settled procedure used to decide questions of privilege in administrative proceedings. This judicial interference in administrative proceedings whenever a claim of privilege is raised will both add to the circuit court’s already overburdened docket and cause needless delay in the agency’s resolution of the dispute which gave rise to the underlying proceeding.
Because I believe that the Board should conduct the in camera inspection and determine whether materials protected by the collective bargaining privilege should be discoverable, I respectfully dissent.
JUSTICE CALVO joins in this dissent.