All states, the District of Columbia and the federal government have open meeting laws, often referred to as “sunshine laws,” requiring agency officials to hold certain meetings in public. These laws do not necessarily ensure that members of the public will be allowed to address the agency, but they do guarantee that the public and the media can attend the meetings.
The ability to record a meeting, either through audio or visual recording has generally been viewed as implicit in sunshine laws if not explicitly written into the state law. For example, Utah and Oklahoma statutorily permit the recording of meetings.6 Similarly, states like New York and New Jersey have recognized a right to recordings through judicial decisions.7 Other states have no provisions guaranteeing the right to recording meetings, but sometimes the practice is generally allowed anyway if it does not disrupt the proceedings.
At the federal level, these laws cover only agencies with collegial, multi-member leadership (such as commissions) and federal advisory committees. State laws apply to a variety of commissions, boards and councils. Generally, sunshine laws guarantee public access to meetings only when a quorum of a group meets to discuss public business. Chance social or ceremonial gatherings of agency officials usually do not fall within the scope of these laws. However, merely having food at a meeting does not make it a social gathering if the agency is meeting to discuss public issues and make decisions.8
Some states have addressed the issue of whether electronic communications would constitute a meeting subject to open meetings laws mandates. For example, using e-mail or telephone conversations to circumvent state open meetings laws is a violation of the law in Alabama and Louisiana. Utah, Florida and Texas are among those additional states that have established legal procedures and limitations on when and how electronic meetings can occur.9
Sunshine laws usually require agencies to give advance notice of all meetings, even emergency ones, and to publish or post agendas in advance, listing items to be discussed. Usually, agencies must keep minutes and/or transcripts of all meetings, even those that agencies can legally close to the public.
Every state allows agencies to conduct certain discussions in closed or “executive” sessions. However, agencies usually must refrain from formal action unless in public session. The kinds of meetings the agencies may close vary somewhat from state to state. Most — but not all — laws permit them to conduct the following discussions in secret:
• Personnel matters — particularly where the agency is firing, hiring or disciplining an individual employee (in some cases, the employee has the right to request a public hearing).
• Collective bargaining sessions.
• Discussions with agency attorneys.
• Discussion of the acquisition or sale of public property.
Meetings of specialized agencies frequently are closed under special legislation. For instance, meetings of parole boards often are not public. Open meetings statutes usually specify the procedures agency officials must follow to close a meeting. In some states, votes to close meetings must take place in open session. In others, simply giving notice of the intent and reasons for holding a closed meeting is sufficient.
As under freedom of information laws, the public and media may seek redress in court for violations of open meeting laws. In some states, actions taken in violation of the open meetings law are nullified, requiring the agency to take the action again in an open meeting. In other states, government officials may be liable for criminal or civil fines, or recall, for deliberate violations.
This discussion provides only a brief outline of these statutes. If you need further assistance concerning the state or federal law, the The Reporters Committee for Freedom of the Press will help you without charge.
The Reporters Committee publishes “Federal Open Government Guide,” which explains the law and how to use it. It is available at www.rcfp.org/fogg. The Reporters Committee has also compiled a comprehensive guide to open meetings and records laws in the 50 states and the District of Columbia, including analysis of the statutes and cases interpreting them. The Open Government Guide is available as a compendium of guides to all states or individually by state. It also is available at www.rcfp.org/ogg.
6. Utah Code Ann. § 52-4-203(5) (2010), 25 Okl.St.Ann. § 312(C) (2010). Both of these statutes allow for the recordings of meetings as long as the meeting is not disrupted.
7. People v. Ystueta, 418 N.Y.S.2d 508 (Dist. Ct., Suffolk County, June 5, 1979) (by-law prohibiting tape recording of meeting violated open meetings law); Maurice River Board of Education v. Maurice River Teachers Ass’n, 455 A.2d 563 (Ch. 1982), aff’d 475 A.2d 59 (App. Div. 1984) (finding there was a right to videotape the meeting, subject to limited restrictions).
8. Ohio ex rel. Plain Dealer Publishing Co. v. Barnes, 527 N.E.2d 807 (1988).
9. The Alabama Open Meetings Act explicitly says that “[e]lectronic communications shall not be utilized to circumvent any of the provisions of this chapter.” Ala. Code § 36-25A-1(a) (2010). Louisiana’s Attorney General has stated that the use of telephones to circumvent in-person attendance at government meetings would be violation of the open meetings law, La. Op. Att’y Gen 93-137. Utah establishes specific requirements for electronic meetings, including when an electronic meeting will not be allowed and how to allow public participation. Utah Code Ann. § 52-4-207 (2010). A Florida Attorney General Opinion permits the use of e-mails communications so long as the communications are not related to issues requiring council action. Fl. Op. Att’y Gen. 2001-20 (2001). In Texas, the Attorney General held e-mail exchanges subject to the Open Meeting Act’s definition of deliberation. Tex. Op. Att’y Gen. JC-0307.