The opinion of the court was delivered by: John F. Grady, United States District Judge
Before the court is the plaintiff's motion to compel. For the reasons explained below we grant the plaintiff's motion in part and deny it in part.
Plaintiff Linda Sronkoski alleges that the defendant Schaumburg School District, No. 54 (the "District") violated the Americans with Disabilities Act ("ADA") by failing to reasonably accommodate her diabetes and related visual impairment. She further alleges that the District fired her from her position as a special-education teacher's assistant because of her disability. The crux of the District's defense, and one of several arguments supporting its pending summary-judgment motion, is that Sronkoski refused to take reasonable steps to manage her diabetes and that in doing so she threatened the safety of her students, justifying her termination. In her motion to compel, Sronkoski argues that she is entitled to the unredacted minutes and the audio recordings of two closed-session meetings of the District's Board of Education (the "Board"), dated November 2, 2006 and November 16, 2006. We have reviewed the unredacted minutes and the audio recordings in camera and conclude that the portions of those materials concerning Sronkoski - her medical condition and her employment - are clearly relevant to her claim.*fn1 See Fed. R. Civ. P. 26 (b)(1). But the District contends that the materials are privileged under the federal deliberative-process privilege and/or Illinois's Open Meetings Act, 5 ILCS 120/1.
A. The Deliberative Process Privilege
The deliberative-process privilege, protects communications that are part of the decision-making process of a governmental agency. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150-152, 95 S.Ct. 1504, 1516-1517, 44 L.Ed.2d 29. Since frank discussion of legal and policy matters is essential to the decisionmaking process of a governmental agency, communications made prior to and as a part of an agency determination are protected from disclosure. Id. at 151, 95 S.Ct. at 1516-17. Communications made subsequent to an agency decision are, however, not similarly protected. Id. at 152, 95 S.Ct. at 1517. The deliberative process privilege may be overcome where there is a sufficient showing of a particularized need to outweigh the reasons for confidentiality. Cf. Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854, 868 (D.C.Cir.1980) (the privilege should be applied "as narrowly as consistent with efficient government operation"); Black v. Sheraton Corp. of America, 564 F.2d 531, 545 (D.C.Cir.1977).
United States Farley, 11 F.3d 1385, 1389 (7th Cir. 1993). We conduct a two-step inquiry to determine whether the privilege entitles the District to withhold relevant information. See Tumas v. Board of Educ. of Lyons Twp. High School Dist. No. 204, No. 06 C 1943, 2007 WL 2228695, *2 (N.D. Ill. July 31, 2007). First, we must decide whether the District has shown that the privilege applies. Id. If it does apply, we must then decide whether Sronkoski has demonstrated a "particularized need" for the information that outweighs the need for confidentiality. Id.
1. Whether the privilege applies.
Sronkoski does not dispute that municipal bodies may invoke the privilege in federal court, see id. at *5, but contends that the District cannot satisfy the privilege's elements. Only "predecisional" and "deliberative" matters are protected. Id. at *2.*fn2 Communications are pre-decisional if the "information was generated before the adoption of an agency policy," and deliberative if they involve the "give and take of the consultative process." Id. (citations and internal quotation marks omitted). The privilege does not apply to "purely factual material," but does apply to "factual matters inextricably intertwined with" pre-decisional policy discussions. See Enviro Tech Intern., Inc. v. United State Environmental Protection Agency, 371 F.3d 370, 374-75 (7th Cir. 2004). Sronkoski argues that the November 16, 2006 board meeting was not pre-decisional because the Board decided to terminate her at "[that] very meeting."*fn3 We disagree. The relevant discussions predate the final decision terminating Sronkoski, which was made by a unanimous vote after the Board returned to open session. (See Minutes of Board Meeting dated Nov. 16, 2007, attached as Ex. 3 to Def.'s Resp. to Pl.'s Mot. to Compel, at 10.); see, e.g., Enviro Tech, 371 F.3d at 375 (communications are pre-decisional if they are "actually [a]ntecedent to the adoption of an agency policy") (citation and internal quotation marks omitted). We also find that the meetings were "deliberative" - the Board discussed Sronkoski's situation and considered options including, but not limited to, terminating her employment. See, e.g., Rainey v. Plainfield Community Consolidated School Dist. No. 202, No. 07 C 3566, 2008 WL 4775975, *4 (N.D. Ill. Oct. 24, 2008) (concluding that the privilege applied to the defendant's closed-session meetings in which it discussed the plaintiff's allegations of racial discrimination). Although the audio recordings include factual information, it is "intertwined" with the policy matters that the Board was considering. We conclude that the deliberative-process privilege applies.
2. Whether Sronkoski has shown a particularized need for the materials that outweighs the District's need for confidentiality.
"Under the ADA, two distinct categories of disability discrimination claims exist: failure to accommodate and disparate treatment." Foster v. Arthur Andersen, LLP, 168 F.3d 1029, 1032 (7th Cir. 1999). Sronkoski's complaint could be construed to allege both, (see Compl. ¶¶ 14-16), and the District's memorandum in support of its summary-judgment motion addresses both. See Timmons v. General Motors Corp., 469 F.3d 1122, 1125 (7th Cir. 2006) ("It is important for plaintiffs to be clear about whether they are pressing disparate treatment or failure-to-accommodate claims (or both) because the two are analyzed differently."). Applying the analytical framework established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973), the District argues that it has articulated a legitimate, non-discriminatory reason for her termination: inattentiveness and erratic behavior stemming from her alleged refusal to treat her diabetes. See Hoffman v. Caterpillar, Inc., 256 F.3d 568, 572 (7th Cir. 2001) ("As with other federal anti-discrimination statutes, an ADA plaintiff may prove disparate treatment either by presenting direct evidence of discrimination, or she may prove it indirectly using the McDonnell Douglas burden-shifting method."); cf. id. ("In failure to accommodate claims, unlike disparate treatment claims, the McDonnell Douglas burden-shifting approach is not necessary or appropriate."). Sronkoski must show, in response, that the District's stated reasons for terminating her are pretextual. See Lloyd v. Swifty Transp., Inc., 552 F.3d 594, 601 (7th Cir. 2009) (If the ADA defendant articulates a legitimate, non-discriminatory reason for an adverse employment action, the "plaintiff must then prove by a preponderance of the evidence that the defendant's reasons are pretextual."). The District makes a similar argument with respect to Sronkoski's reasonable-accommodation claim, in support of which she must show that the District fired her "because of" her disability. Foster, 168 F.3d at 1032-33. According to the District, it did not fire Sronkoski because she had diabetes; it fired her because she failed to take steps to control it. See Siefken v. Village of Arlington Heights, 65 F.3d 664, 666 (7th Cir. 1995).
Sronkoski contends that she has a "particularized need" for the closed-session materials, which may reflect the District's true "motive and basis" for terminating her. See Kodish v. Oakbrook Terrace Fire Protection District, 235 F.R.D. 447, 452 (N.D. Ill. 2006) ("[I]n order for Plaintiff to pursue his § 1983 civil rights claim, he must attempt to ascertain the motive and basis for the Fire District's decision to terminate him."). We agree, and we are not persuaded under the circumstances that other available evidence is adequate. The District argues, for example, that Sronkoski was told why she was fired and therefore she does not "need" any additional information. (Id. at 5.) But Sronkoski is not required to accept the District's representations at face value. See McDonnell Douglas, 411 U.S. at 804. It is true, as the District points out, that Sronkoski has deposed some of the individuals involved in the decision-making process. See Rainey, 2008 WL 4775975, at *3 ("The pertinent decisionmakers are available to be deposed, so plaintiff has other means of obtaining the pertinent information."). But we respectfully disagree with the court in Rainey insofar as it concluded that deposition testimony is an adequate substitute for contemporaneous evidence in a discrimination case. Cf. Alvarado v. Board of Trustees of Montgomery Community College, 928 F.2d 118, 122-23 (4th Cir. 1991) (a contradiction between post hoc and contemporaneous explanations for an employment action is evidence of pretext). The District also argues that disclosure would "inhibit Board members from having frank discussions about other employment matters in the future." Our Court of Appeals has acknowledged that this is an important interest, but one which must give way in the ...