1. Character of exemptions
The Alabama Open Meetings Act contains specific exemptions for executive sessions, discussed in detail above. See Ala. Code § 36-25A-7.
The specific exemptions in the Alabama Open Meetings Act are discretionary: "Executive sessions are not required by this act but may be held by a governmental body for the following purposes . . . ." Ala. Code § 36-25A-7.
The provisions of AS 44.62.310(d) specifying the gatherings to which the OMA does not apply are quite specific. The OMA, in section .312(b) provides that section .310(d) must be "construed narrowly in order to effectuate the policy stated in [.312(a) of the OMA] and to avoid exemptions from open meeting requirements." Section .310(c) specifies the subjects that a governmental body is permitted to discuss in executive session. Unlike those gatherings specified in .310(d), the executive sessions are subject to the Open Meetings Act, and must be conducted as part of duly noticed meetings. Like .310(d), Section .310(c) must also be construed narrowly to effectuate the policies of the OMA and avoid unnecessary executive sessions. The exemptions contained in AS 44.62.310(c) are more general, and have the potential for abuse to varying degrees in different situations. In addition, the legislature has underscored its intent that Subsection (c)(1) be construed narrowly by use of words such as "immediate" and "clearly." AS 44.62.310(c)(2) lends itself even more to abuse because of its expansive language, although the proviso that the affected individual must be allowed to require a public discussion helps provide a check. The "catchall" provision, AS 44.62.310(c)(3) is potentially broad, since it incorporates such common law notions as the attorney-client privilege. However, the Alaska Supreme Court has generally construed the OMA liberally in favor of public access, and the legislature has underscored its obligation to do so.
The statutory provision governing executive sessions in §.310(c) of the OMA is discretionary: It says that these excepted subjects "may be" discussed in executive session. Thus, the body presumably can meet publicly if it chooses, even if it would be permitted to discuss the matter privately. Note however that this may not be the case with respect to all matters that are covered by section .310(c)(3) insofar as it deals with matters that are "required to be confidential." No cases address this apparent discrepancy arising from the prefatory language apparently allowing a body to choose to discuss in public matters that are by definition "required to be confidential." Some meeting categories are not covered by the act. See Section .310(d). The act does not require those meetings to be closed, it simply provides that they are not within the scope of this law.
The FOIA itself contains only three exemptions, all specific in character. First, a governing body may hold a closed meeting “for the purpose of considering employment, appointment, promotion, demotion, disciplining, or resignation of any public officer or employee.” Ark. Code Ann. § 25-19-106(c)(1)(A). Second, state boards and commissions may meet in executive session “for purposes of preparing examination materials and answers to examination materials . . . for licensure” and to administer the examinations. Id. § 25-19-106(c)(5)(A) & (B) (added by Act 1259 of 2001). Third, “a public agency may meet in executive session for the purpose of considering, evaluating, or discussing matters pertaining to public water system security or municipally owned utility system security as described in § 25-19-105(b)(18).” Id. § 25-19-106(c)(6) (added by Act 763 of 2003). Any exemption to the open meetings provision enacted after June 30, 2009 must specifically cite the FOIA. Ark. Code Ann. § 25-19-110.
The personnel exemption is discretionary rather than mandatory, and a governing body may choose to meet in public on a personnel matter otherwise within the exemption. Ark. Code Ann. § 25-19-106(c)(1)(A); Ark. Op. Att’y Gen. Nos. 99-157, 96-009, 74-078. The exemption for licensing exam preparation and administration provides that state boards and commissions “may meet” in executive session and is thus permissive in nature. Ark. Code Ann. § 25-19-106(c)(5). Similarly, the water system security exemption provides that public agencies “may meet” in executive session and is thus permissive in nature. Id. § 25-19-106(c)(6).
Both Acts specifically provide that the conduct of the people's business is to be conducted in the open. It is therefore the general rule that all meetings of any body covered by either Act must be open to the public. If a meeting is to be conducted or any action taken by a covered agency in other than a public forum, a specific exemption from the general rule must be identified by the agency. Where there is no specific exemption, the meeting must remain open to the public. Meetings may be closed to the public only in accordance with the specific provisions of the Acts. Cal. Gov't Code §§ 11132 (Bagley-Keene Act), 54962 (Brown Act).
Moreover, the exemptions from the open meeting requirements are generally discretionary. Neither Act requires closures. The Bagley-Keene Act states, "Nothing in this article shall be construed to prevent a state body from holding a closed session . . ." Cal. Gov't Code § 11126. The Brown Act sets forth the minimal standards for public access and a legislative body of a local agency may impose requirements upon themselves which allow greater access to their meetings. Cal. Gov't Code § 54953.7. However, a body cannot hold an open meeting where an individual or business under discussion has a legally protected right to confidentiality.
Many cities in California have enacted "sunshine ordinances" to expand the public's access to meetings.
The Sunshine Law has been liberally construed in favor of openness and to permit non-public sessions only in specific, relatively narrowly defined circumstances. All discussions not falling within these "executive session" categories must be held in public, and in any event the discussion leading to the final decision must occur in public. See Cole v. State, 673 P.2d 345 (Colo. 1983).
Closures are discretionary, upon public announcement and public vote of two-thirds of body.
Certain meetings or gatherings are specifically excluded from the definition of meeting contained in FOIA and thus need not be open. See Meetings Outline at II.A.2.a. Other meetings are permitted to be closed as executive sessions. See Meetings Outline at I.E.3. The closure of meetings under FOIA is discretionary with the public agency.
District of Columbia
The Open Meetings Act, D.C. Code Ann. § 2-575(b), specifies fourteen reasons why a meeting, or portion of a meeting, may be closed:
(1) A law or court order requires that a particular matter or proceeding not be public;
(2) To discuss, establish, or instruct the public body's staff or negotiating agents concerning the position to be taken in negotiating the price and other material terms of a contract, including an employment contract, if an open meeting would adversely affect the bargaining position or negotiating strategy of the public body;
(3) To discuss, establish, or instruct the public body's staff or negotiating agents concerning the position to be taken in negotiating incentives relating to the location or expansion of industries or other businesses or business activities in the District;
(4) (A) To consult with an attorney to obtain legal advice and to preserve the attorney-client privilege between an attorney and a public body, or to approve settlement agreements; provided, that, upon request, the public body may decide to waive the privilege.
(B) But nothing in the Act shall be construed to permit a public body to close a meeting that would otherwise be open merely because the attorney for the public body is a participant;
(5) Planning, discussing, or conducting specific collective bargaining negotiations;
(6) Preparation, administration, or grading of scholastic, licensing, or qualifying examinations;
(7) To prevent premature disclosure of an honorary degree, scholarship, prize, or similar award;
(8) To discuss and take action regarding specific methods and procedures to protect the public from existing or potential terrorist activity or substantial dangers to public health and safety, and to receive briefings by staff members, legal counsel, law enforcement officials, or emergency service officials concerning these methods and procedures; provided, that disclosure would endanger the public and a record of the closed session is made public if and when the public would not be endangered by that disclosure;
(9) To discuss disciplinary matters;
(10) To discuss the appointment, employment, assignment, promotion, performance evaluation, compensation, discipline, demotion, removal, or resignation of government appointees, employees, or officials;
(11) To discuss trade secrets and commercial or financial information obtained from outside the government, to the extent that disclosure would result in substantial harm to the competitive position of the person from whom the information was obtained;
(12) To train and develop members of a public body and staff;
(13) To deliberate upon a decision in an adjudication action or proceeding by a public body exercising quasi-judicial functions; and
(14) To plan, discuss, or hear reports concerning ongoing or planned investigations of alleged criminal or civil misconduct or violations of law or regulations, if disclosure to the public would harm the investigation.
D.C. Code Ann. § 2-575(b).
The statutory provision governing closure is discretionary; it states that a meeting "may" be closed pursuant to the specified reasons. Id.
Exemptions to the Sunshine Law are specific rather than general in that all exemptions must be provided for by statute. The Sunshine Law itself contains no general provision for closure in the “public interest.” An exemption from Fla. Stat. section 119.07(1) does not imply an exemption from or exception to section 286.011. Such an exception to or exemption from section 286.011 must be expressly provided. Fla. Stat. section 119.07(5). See discussion below at II.B. for other statutes which provide for the closure of certain meetings and II.C., Court Mandated Exclusions, infra.
Neither the courts nor the Legislature have addressed whether exemptions are mandatory; thus, this issue will depend on the language of the particular statutory exemption. Most of the exemptions seem to be mandatory in that they state that a meeting “shall” be exempt from the provisions of section 286.011. See, e.g., Fla. Stat. §§ 447.605(1), 655.0321 (2020). Other exemptions are triggered when a person within the class of individuals sought to be protected requests that the meeting be closed.
The Act does not require closure of any meetings. It merely permits closure in certain circumstances, provided a majority of the quorum present vote to do so. O.C.G.A. § 50-14-4(a). See Steele v. Honea, 261 Ga. 644, 647, 409 S.E.2d 652 (1991) (Fletcher, J., concurring) (because violation of the Act may be grounds for recall from office, "if there is the slightest doubt, or any question whatsoever, as to whether a matter can be the subject of a closed meeting, DO NOT CLOSE").
The open meetings law does not require all communications between board members to be conducted in public. At its discretion, a board may hold a closed executive meeting for any one or more of eight enumerated purposes. Haw. Rev. Stat. §§ 92-4, -5. In addition, certain communications among board members are characterized as "permitted interactions of members" which may be conducted in private. Id. § 92-2.5 (2005).
The Idaho Open Meeting Law expressly permits governing bodies of public agencies to conduct meetings closed to the public, but only under certain enumerated circumstances. Such closed meetings, referred to as executive sessions, may be held if, after proper notice, (1) the presiding officer has identified the authorization under the Open Meeting Law for the holding of an executive session, and (2) the members of the governing body agree by at least a two-thirds vote, recorded in the minutes of the meeting by individual vote, to hold such an executive session. Idaho Code § 74-206(1).
The Act specifies that only those portions of any meeting expressly enumerated as exceptions may be closed. See 5 ILCS 120/2a. The exceptions are to be strictly construed, and this “strict construction leaves no room for ambiguity in the announcement of exceptions.” Henry v. Anderson, 356 Ill. App. 3d 952, 957, 827 N.E.2d 522, 526, 292 Ill. Dec. 993, 997 (4th Dist. 2005).
No final action may be taken at a closed meeting. See 5 ILCS 120/2(e). All final action taken at an open meeting shall be preceded by a public recital of the nature of the matter being considered and such other information as would inform the public of business being conducted. See 5 ILCS 120/2(e). But see the decision of the Supreme Court in which it approved ‘preliminary’ action in a closed session in which 6 of 7 board members signed a settlement agreement, and delayed ‘final’ action in any open session for weeks thereafter. Board of Educ. of Springfield Sch. Dist. 186 v. Att’y Gen. of Illinois, 2017 IL 120343, 77 N.E. 3d 625.
Secret ballots, even if taken in a public meeting, are not permitted under Act. See WSDR Inc. v. Ogle County, 100 Ill. App. 3d 1008, 427 N.E.2d 603, 56 Ill. Dec. 408 (1981). In a representative democracy, voters are entitled to know how their elected officials vote on all matters coming before a public body.
Public officials are free to discuss publicly the issues raised in closed sessions. Public bodies may not impose such limitations on their members. See Op. Att’y. Gen. 001 (1991); Swanson v. Board of Police Comm’rs, 197 Ill. App. 3d 592, 555 N.E.2d 35, 144 Ill. Dec. 138 (2d Dist. 1990).
The burden to comply with the Act is not to be balanced against the policy of openness. See Board of Regents v. Reynard, 292 Ill. App. 3d 968, 977, 686 N.E.2d 1222, 1227, 227 Ill. Dec. 66, 71 (4th Dist. 1997). As all exceptions go against the general requirement that public bodies meet in the open, “exceptions are to be strictly construed, extending only to subjects clearly within their scope.” 5 ILCS 120/2(b).
Where a specific statute requires a closed meeting, the statute prevails over the Open Meetings Act’s general provisions. For example, a 1981 provision in the Election Code, 10 ILCS 5/9-21, provided that upon investigating and rendering judgments upon complaints filed under the administrative enforcement requirements for disclosure of political campaign contributions and expenditures, the state election board shall conduct a closed preliminary hearing. The Illinois Attorney General concluded that this specific provision prevailed over any apparently conflicting general provision of the Open Meetings Act. See Op. Att’y Gen. 041 (1982), at 124-25.
Otherwise, the Act specifically states that “[n]othing in this Section or this Act shall be construed to require that any meeting be closed to the public.” 5 ILCS 120/2a (emphasis added).
Executive sessions may be closed, and the circumstances in which an executive session can be held are explicitly stated in the statute. Ind. Code § 5-14-1.5-6.1. Closure is discretionary, although typically public agencies exercise their discretion in favor of closure. Ind. Code § 5-14-1.5-6.1(b) (“[e]xecutive sessions may be held . . .”) (emphasis added).
Note also that Indiana Code Section 5-14-1.5-2.1 construes providers of goods and services as not public agencies subject to the Open Door Law if they meet the following criteria: (1) the provider receives public funds through an agreement with the public entity, in exchange for services, goods, or other benefits; (2) the amount of fees received does not involve a consideration of tax revenues of the public entity; (3) the public entity negotiates the fee; (4) the public entity is billed for services or goods actually provided; and (5) the provider is not required to be audited by the state board of accounts. Ind. Code § 5-14-1.5-2.1.
The exemptions are specific; and public interest is not a statutory factor which governmental bodies must consider in determining whether a closed session would be appropriate. See Hutchison v. Shull, 878 N.W.2d 221, 237- 38 (Iowa 2016) (noting that the district court may balance the public interest in the enforcement of the policy of chapter 21 against the public interest in upholding the validity of the closed session, but the court should determine whether the meeting complied with the open meetings requirements).
"Nothing in this section requires a governmental body to hold a closed session to discuss or act upon any matter." Iowa Code § 21.5(5).
Specific exemptions. Mandatory, not discretionary closure. See K.S.A. 75-4318(g).
The exemptions are specific in nature. Ky. Rev. Stat. 61.810(1) exempts certain categories of meetings from the requirement that they be open, but it does not explicitly require that those meetings be closed. The Attorney General has stated that the exemptions are discretionary. See 82-275. In order to go into closed session, the substance of the meeting must fall within one of the exemptions, and “[c]losed sessions may be held only after a motion is made and carried by a majority vote in open, public session.” Ky. Rev. Stat. 61.815(1)(b).
Specific exemptions are found in La. Rev. Stat. Ann. § 42:17 and 42:18.
As to discretionary exemptions, see Louisiana Debating & Literary Ass'n v. City of New Orleans, 42 F.3d 1483 (5th Cir. 1995), cert. denied 515 U.S. 1145 (1995). (Louisiana Commission on Human Rights not required to meet in executive session even where statute allows it to do so).
The Act allows public bodies to vote to deliberate in executive session “on only” certain specific enumerated matters. 1 M.R.S.A. § 405(6). The exceptions are for the most part narrow and specific. Public bodies are not required to deliberate in executive session on enumerated topics; they “may” do so upon a proper motion and vote by 3/5 of the members present and voting. 1 M.R.S.A. § 405(3)-(6).
In general, closed sessions are permitted for personnel matters, to protect the privacy interests of individuals, and to consider preliminary matters involving state investments, litigation matters and public security matters. See § 3-305(b).
Prior to 1991, the Act permitted closure for exceptional reasons by a two-thirds vote of the members of the public body who are present at the session. § 10-508(a)(14) (1984) (repealed 1992). This catch-all exception was eliminated in 1991, thus requiring a public body to fulfill the requirement of identifying a specific exception to justify a meeting's closure. § 3-305(b)-(c); see also OMA Manual, at 4-2.
The Act provides for closure where specific constitutional, statutory or judicial requirements prevent public disclosure regarding a particular proceeding or matter. § 3-305(b)(13). This provision appears to be mandatory. In general, however, the exemptions to open sessions are discretionary. See § 3-305(b).
Executive sessions are discretionary with the governmental body, subject to the rights of affected individuals who may request an open meeting. G.L. c. 30A, § 21(a)(1). Although executive sessions are not mandatory, at least one case has treated a failure to negotiate in executive session as a failure to negotiate in good faith. Bd. of Selectmen of Marion v. Labor Relations Comm’n, 7 Mass. App. Ct. 360, 388 N.E.2d 302 (1979) (finding that existence of exception for collective bargaining showed that executive session served a purpose, and the refusal to hold closed session damaged the bargaining process and could be seen as a failure to negotiate in good faith).
A public body may meet in closed session only for the purposes listed in Mich. Comp. Laws Ann. § 15.268. The closed session exemptions are to be construed strictly to limit the types of situations that are not open to the public. Wexford Cty. Prosecuting Attorney v. Pranger, 83 Mich. App. 197, 268 N.W.2d 344 (1978); see also Booth Newspapers, Inc. v. Univ. of Mich. Bd. of Regents, 168 Mich. App. 459, 425 N.W.2d 695 (1988).
The Open Meeting Law does not apply to meetings of the commissioner of corrections and "a state agency, board, or commission when it is exercising quasi-judicial functions involving disciplinary proceedings. " Therefore, these exemptions, and any others expressly provided by statute, are mandatory. Minn. Stat. § 13D.01, subd. 2. Any portion of a meeting must be closed if expressly required by law or if the public body plans to discuss data identifying certain crime victims, active investigative data relating to misconduct of law enforcement personnel, or non-public educational, health, medical, welfare or mental health data. Minn. Stat. § 13D.05, subd. 2(a). In addition, a public body shall close a meeting for preliminary consideration of allegations or charges against an individual subject to its authority. § 13D.05, subd. 2(b). Any further meetings or hearings relating to those charges or allegations must be open. Id. The meeting must also be open at the request of the individual who is the subject of the meeting. Id.
Exemptions are specific and exclusive. Bd. of Trs. v. Miss. Publishers Corp., 478 So. 2d 269, 277 (Miss. 1985). Exemptions are not mandatory. They are discretionary. § 25-41-7(3).
The exemptions enumerated in the Sunshine Law are specific rather than general. Mo.Rev.Stat. § 610.021.
Closed meetings are generally discretionary. Mo.Rev.Stat. § 610.022.4. (“nothing in sections 610.010 to 610.028 shall be construed to require a public governmental body to hold a closed meeting, record, or vote.”)
Closed session is allowed generally by majority vote of members of public body, "if a closed session is clearly necessary for the protection of the public interest or for the prevention of needless injury to the reputation of an individual and if such individual has not requested a public meeting." Neb. Rev. Stat. §84-1410(1). The law provides that, "[c]losed sessions may be held for, but shall not be limited to, such reasons as" those listed in the specific exemptions. Neb. Rev. Stat. §84-1410(1).
The "public interest" under §84-1410, "is that shared by citizens in general and by the community at large concerning pecuniary or legal rights and liabilities." Grein v. Board of Education, 216 Neb. 158, 164, 343 N.W.2d 718, 723 (1984). Where public finances are involved, the "public interest" ordinarily demands an open meeting. Id. The reputation to be protected may not be that of the public body, and "slight discomfort" to an individual is insufficient to overcome the presumption of openness. Id.
Closure is discretionary with the public body, subject to the limits of the Open Meetings Act. The Open Meetings Act does not require closure. Neb. Rev. Stat. §84-1410(4).
Exemptions must be specific and will be strictly construed by the courts. McKay v. Board of Supervisors, 102 Nev. 644, 730 P.2d 438 (1986). In addition, the law itself declares that exemptions ". . . must not be used to circumvent the spirit or letter of this chapter in order to discuss or act upon a matter over which the public body has supervision, control, jurisdiction or advisory powers." NRS 241.030(4). Exemption means that certain public business may be conducted without regard to any requirement of the Open Meeting Law because the Legislature has weighed the benefits of secrecy with the OML’s policy of openness, while other statutes merely allow certain activities to be closed to the public. These statutes create exceptions to the OML, but a public body still must record and keep minutes of closed meetings under statutes allowing for exceptions.
The exemptions are specific. The Statute requires open meetings except for meetings that address specific matters that the legislature has determined should not be discussed in public to avoid potential harm to one or more individuals, the public or a governmental entity,
There are nine specific subject matter exceptions to the requirement that all meetings be open to the public. N.J.S.A. 10:4-12b(1) to (9). These exceptions are to be strictly construed in order that the broad public policy underlying OPMA is realized. Woodcock v. Calabrese, 148 N.J. Super. 526, 536-37, 372 A.2d 1178 (Dist. Ct. 1977).
A closed session to discuss any of the excepted subjects is discretionary. Closure is permitted only after adoption of a resolution setting forth (i) the "general nature" of the subject to be discussed; and (ii) the time when and the circumstances under which the discussion conducted in closed session can be disclosed to the public. N.J.S.A. 10:4-12b and 10:4-13.
The ten exemptions to the act specifically exempt certain meetings. NMSA 1978 § 10-15-1(H). Closure is discretionary under the Open Meetings Law. NMSA 1978 § 10-15-1(I).
The OML exemptions are specific in nature. The statute expressly states that specified proceedings, deliberations and matters are not subject to the provisions of the OML. N.Y. Pub. Off. Law § 108 (McKinney 1988).
The statute does not mandate closure of exempt meetings. Rather, it states that the OML is not applicable to the exempt proceedings, deliberations and matters. N.Y. Pub. Off. Law § 108 (McKinney 1988).
The Open Meetings Law contains only ten permitted purposes for going into closed session. In Advance Publications v. City of Elizabeth City, 53 N.C. App 504, 506, 281 S.E.2d 69, 70 (1981), the North Carolina Court of Appeals held that the North Carolina Public Records Law is to be liberally construed in favor of public access, and held in News & Observer Publishing Co. v. Interim Board of Education for Wake County, 29 N.C. App. 37, 47, 223 S.E.2d 580 (1976), that exceptions to the Open Meetings Law should be strictly construed. Boney Publishers Inc. v. Burlington City Council, 151 N.C. App. 651, 655, 566 S.E.2d 701, 704 (2002) (“[E]xceptions to the operation of open meetings laws must be narrowly construed.”).
The only “general” exemption is G.S. § 143-318.11(a)(1), which permits a closed session to prevent disclosure of information that is privileged or confidential under state or federal laws or information that is not considered a public record under the meaning of Chapter 132 of the General Statutes.
Most exemptions are discretionary. The only time a public body could be required to go into closed session would be to protect statutorily confidential information such as personnel or student records.
North Dakota law provides that all public meetings are open meetings, unless there is a specific statutory exemption of a particular type of meeting.
Public bodies exempt in whole or in part from the statute are specifically enumerated in the statute or in other parts of the Revised Code of Ohio.
Executive sessions are discretionary, except for veterans service commissions, which are required to hold executive sessions when interviewing or considering applicants for financial assistance. Ohio Rev. Code § 121.22(J) (veterans service commission).
The Oklahoma Open Meeting Act states that no public body shall go into executive session unless specifically authorized in 25 O.S. § 307. Despite that language, however, there are a limited number of statutes outside the Act that authorize executive sessions. See, e.g., 59 O.S. §1609(B) (Board of Examiners for Speech-Language Pathology and Audiology may go into executive session to approve, grade or administer examination); 74 O.S. 5060.7(C) (Oklahoma Science and Technology Research and Development Board may go into executive session to discuss proprietary information); 74 O.S. § 5062.6(G) (Oklahoma Development Finance Authority may go into executive session to discuss proprietary information); 74 O.S. § 5085.6(C) (Oklahoma Capital Investment Board may go into executive session to discuss proprietary information).
The requirement to go into executive session is discretionary. See 25 O.S. § 307.B-C. A public body may remove itself from a public meeting to discuss specified matters set forth in the legislature. 25 O.S. § 307. However, the executive session provisions of the Act do not themselves create any legal privileges that require matters to be kept confidential and therefore, in any given instance in which an executive session may be held, the public body must determine whether an executive session is warranted. 1992 OK AG 23.
Under ORS 192.660, closures of public meetings for executive session purposes are limited to specific situations.
There are certain specified agencies and types of proceedings which are exempt from all requirements of the Public Meetings Law, pursuant to ORS 192.690. Open meetings are required unless a specific exemption is applicable.
If permitted by statute, closure decisions are generally discretionary by the governing body except in personnel and labor negotiation matters.
The Act contains three general and discretionary exceptions to the open meeting requirement: executive sessions, conferences, and certain working sessions. See 65 Pa. C.S.A. §§ 707, 708(c).
OML lists ten specific purposes for which a meeting may be closed to the public. R.I. Gen. Laws § 42-46-5(a)(l)-(10). The language of the OML, that a public body “may” close a meeting, indicates that the exemptions are discretionary. R.I. Gen. Laws § 42-46-5(a).
The language of the OML, that a public body “may” close a meeting, indicates that the exemptions are discretionary. R.I. Gen. Laws § 42-46-5(a).
Exemptions are for discussion of specific matters.
Closure is discretionary as the act states a public body may hold a meeting closed to the public for one or more of the specified purposes. S.C. Code Ann. § 30-4-70(a).
If a governmental body is subject to the Act, there is a presumption that all meetings will be open unless some exception applies. The exceptions are found in various provisions of the Act. To be sure, these exceptions are not "magic talismans that can be dragged out every time a body subject to the [Act] wants to have a secret meeting." Finlan, 888 F. Supp. at 790. Further, these exceptions are narrowly drawn. Save Our Springs Alliance v. Austin Indep. Sch. Dist., 973 S.W.2d 378, 381 (Tex. App-Austin 1998, no writ).
A handful of exceptions apply generally to all governmental bodies. The most common are the exception for consulting with an attorney (Tex. Gov’t Code§ 551.071), the exception concerning certain matters pertaining to real property (Id. § 551.072), and the personnel matters exception (Id. § 551.074). Less common exceptions allow governmental bodies to deliberate in private regarding prospective gifts (Id. § 551.073), Texas growth fund discussions to obtain information on investments (Id. § 551.075), security devices (Id. Tex. Gov’t Code § 551.076), licensing test items (Id. § 551.088), and certain economic development negotiations (Id. § 551.087). Several other exceptions apply only to certain specified governmental bodies. Also, Section 551.084 of the Act permits a governmental body that is investigating a matter to exclude a witness from a hearing during examination of another witness in the investigation. Id. § 551.084.
Although these exceptions are discretionary, they are routinely invoked by governmental bodies.
The exemptions are specific. “A closed meeting is not allowed unless each matter discussed in the closed meeting is permitted under [Utah Code section] 52-4-205.” Utah Code § 52-4-204(2). “Except as provided in [Utah Code section] 52-4-205(2), nothing in this chapter shall be construed to require any meeting to be closed to the public.” Id. § 52-4-204(5).
The Vermont open meeting law does not apply to “the Judicial Branch of the Government of Vermont or of any part of the same or to the Public Utility Commission.” 1 V.S.A. § 312(e). Similarly, the law does not “extend to the deliberations of any public body in connection with a quasi-judicial proceeding.” Id. Finally, the law shall not “be construed to require the making public of any proceedings, records, or acts which are specifically made confidential by the laws of the United States of America or of this State.” Id.
The law further provides that it shall not be “construed to prohibit the Parole Board from meeting at correctional facilities, with attendance at the meeting subject to rules regarding access and security established by the superintendent of the facility.” 1 V.S.A. § 312(i).
The grounds on which a public body “may” hold a closed meeting are specified in Va. Code Ann. § 2.2-3711.A. These exclusions are to be narrowly construed "in order that no thing which should be public may be hidden from any person." Hale v. Washington County Sch. Bd., 241 Va. 76, 79, 400 S.E.2d 175, 176 (1991) (quoting Va. Code Ann. § § 2.2-3700); Danville v. Laird, 223 Va. 271, 288 S.E.2d 429 (1982).
The OPMA provides for closed meetings in two circumstances. First, certain meetings may be closed because the OPMA is deemed not to apply to such meetings. Second, agencies are permitted, under certain circumstances, to have a closed executive session.
The areas not covered by the Act and the executive session exemptions are all discretionary. In other words, there is no requirement that such meetings be closed. The only other exemption to the OPMA is that in the event of a public disturbance, the governing body may order the room cleared of the public and the meeting may continue; however, members of the media who were not involved in the disturbance are allowed to remain. RCW 42.30.050.
The Open Meetings Act does not permit the closing of a meeting simply because the public agency believes closure would serve the public interest. To the contrary, the statute mandates that "except as expressly and specifically otherwise provided by law . . . all meetings of any governing body shall be open to the public." W. Va. Code § 6-9A-3 (emphasis added).
Unfortunately, many of the exemptions (called "exceptions") specified in the Open Meetings Act are so broad that they are subject to abuse and, even though a public agency cannot make a decision while in executive session, it is possible that everything but the actual decision will be made in an executive session and the reasons behind the decision will not be disclosed. The recent decisions of Common Cause of W. Va. v. Tomblin, 186 W. Va. 537, 413 S.E.2d 358 (1991), and McComas Fayette County Board of Education, 197 W. Va. 88, 475 S.E.2d 280 (1996), may offer some protection against this practice.
There is no general exception to the Open Meetings Act, but there are nine specific exceptions that are deemed reasons for which a governing body may go into "executive session." These exceptions merely authorize a closed session at the discretion of the governing body; a majority vote is required to invoke the provisions that permit executive sessions. Note that in the case of the five exemptions directed toward protecting individual privacy, the individual involved may demand a public meeting.
In contrast to the Open Records Law, exemptions to the Open Meetings Law are specific. Unless a meeting falls within one of the specific categories of exemption, it may not be closed. Wis. Stat. § 19.85(1). The exemptions are narrowly construed. Cf. Chvala v. Bubolz, 204 Wis. 2d 82, 552 N.W.2d 892 (Wis. Ct. App. 1996) (exemptions to the Open Records law are to be construed narrowly). Closure is discretionary. State ex rel. Bilder v. Delavan Twp., 112 Wis. 2d 539, 334 N.W.2d 252 (1983).