1. Deliberations closed, but not fact-finding

No pertinent authority.

Various provisions of the OMA or related statutes provide for executive sessions, or exempt a gathering from as a meeting for purposes of the act, insofar as it is judicial or “quasi-judicial” in nature, analogous to court proceedings where the fact-finding process of a trial is all open, but the deliberations of a jury or judge on those facts are not. See, e.g., AS 44.62.310(d)(1), which states that the Open Meetings Act does not apply to a governmental body performing a judicial or quasi-judicial function when holding a meeting solely to make a decision in an adjudicatory proceeding.

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Unless the FOIA or another statute permits a closed session, hearings and deliberations of an administrative body in its quasi-judicial role must be open to the public. Ark. Op. Att’y Gen. Nos. 91-175, 84-091, 79-144. But see Baxter Cnty. Newspapers Inc. v. Med. Staff of Baxter Gen. Hosp., 273 Ark. 511, 622 S.W.2d 495 (1981) (suggesting that deliberative session may be in private). If the FOIA’s personnel exemption applies, the body’s deliberation may be held in executive session, although the hearing itself must be open to the public. Ark. State Police Comm’n v. Davidson, 252 Ark. 137, 477 S.W.2d 852 (1972); Ark. Op. Att’y Gen. No. 85-181.

Under the Bagley-Keene Act, a state body conducting an administrative adjudication or making decisions relating to those proceedings may hold a closed session. Cal. Gov't Code § 11125.7. Under both Acts, a body may also deliberate in closed session on a matter that is properly the subject of a closed session. Cal. Gov't Code §§ 11126 (Bagley-Keene Act), 54952.7 (Brown Act).

Fact-Finding and Evidentiary Sessions. Although evidentiary sessions must be open, deliberation upon the evidence may be conducted at a closed executive session. See Einarsen v. City of Wheat Ridge, 43 Colo. App. 232, 604 P.2d 691 (1979); Robertson v. Board of Educ., 39 Colo. App. 462, 570 P.2d 19 (1977).

Final action, however, must be taken at a reconvened hearing. Hudspeth v. Board of Cty. Comm'rs, 667 P.2d 775 (Colo. App. 1983); Einarsen v. City of Wheat Ridge, supra.

There are no specific provisions or exemptions in FOIA on this issue. There are also no reported court decisions on this issue.

The open meeting laws cover “factfinding, deliberations and discussions.” Del. Op. Att’y Gen., No. 00-ib07 (Apr. 28, 2000). So long as “public business” is discussed, a session is open unless it falls within an exception.

Deliberations upon a decision in an adjudication action or proceeding by a public body exercising quasi-judicial functions may be closed.  D.C. Code Ann. § 2-575(b)(13).  The Act does not specifically address fact-finding.

See discussion above. There is no provision relating to the application of the Sunshine Act to administrative bodies. The application of the Act to such bodies probably will depend on whether the administrative body in question acts as an arm of the legislature or the executive branch and is an agency as defined by the statute. See discussion above at “What governments are subject to the law” and “What bodies are covered by the law?”.

The Act does not generally exempt deliberations of administrative bodies conducting adjudications. The Act does permit agencies to go into executive session when deliberating—but not to vote upon—disciplinary action or dismissal of a public officer or employee or interviewing applicants for the position of the executive head of an agency. O.C.G.A. § 50-14-3(b)(2). But the Act specifically provides that this exception does not apply to the receipt of evidence or when hearing argument. Id.

When the Office of Human Resources received a request to release a taped transcript of a fact-finding hearing involving a complaint alleging discrimination, Corporation Counsel determined that the transcript was not a public record and that disclosure would violate the privacy of persons involved in the case. Honolulu Corp. Counsel Memo. of Law No. M83-65 (Dec. 28, 1983).

See above.

Deliberations for decisions of the Illinois Gaming Board if any of the following is discussed: (i) personal, commercial, financial, or other information obtained from any source that is privileged, proprietary, confidential, or a trade secret. 5 ILCS 120/(c)(36).

Deliberations for decisions of the Concealed Carry Licensing Review Board under the Firearm Concealed Carry Act. 5 ILCS 120/2(c)(31).

Deliberations are considered “official action.” Ind. Code § 5-14-1.5-2(d)(2). However, deliberations may occur in an executive session, which is closed to the public. See Marion County Sheriff’s Merit Board v. People’s Broad., 547 N.E.2d 235 (Ind. 1989) (Merit Board could discuss evidence in executive session after taking evidence in public hearing as long as final action on disciplinary case was taken in public).

Under Iowa Code § 21.5(1)(f), the Davenport Civil Rights Commission acted lawfully when it conducted closed meetings to deliberate an employee's harassment claim. Botsko v. Davenport Civ. Rights Comm'n, 774 N.W.2d 841 (Iowa 2009). There is no procedural due process violation based solely upon the overlapping investigatory and adjudicatory roles of agency actors. Id. at 849.

All stages of the decision making process are subject to the Act. Coggins v. Pub. Emp. Relations Bd., 2 Kan. App. 2d 416, 581 P.2d 817 (1978); Kan. Att’y Gen. Op. 1980-197.  Deliberations by administrative bodies that are authorized by law to exercise quasi-judicial functions when such bodies are deliberating matters relating to a decision involving such quasi-judicial functions are not open.  K.S.A. 75-4318(g)(1).

Even if fact-finding session is open, deliberations may be closed. See Ky. Rev. Stat. 61.810(1)(j); Stinson v. State Bd. of Accountancy, 625 S.W.2d 589, 592 (Ky. Ct. App. 1981).

In general, administrative bodies must deliberate in open session.  The quality and nature of deliberations varies (some bodies actively discuss the subject matter before it, while others discuss very little or merely present prepared statements).  The statute does not distinguish between deliberations and fact-finding.

The Act's provisions apply to meetings of all public bodies unless they are engaging in administrative, judicial, or quasi-judicial functions. § 3-103(a). To the extent that an administrative adjudication falls within these functions, the Act does not apply. See §§ 3-101, 3-103.

Some administrative adjudications are specifically exempted in Mich. Comp. Laws Ann. § 15.263(8). In other cases, statutes governing certain administrative adjudications may render some information confidential. See Mich. Comp. Laws Ann. § 15.268(h).

The Open Meeting Law allows preliminary consideration of disciplinary matters to be conducted in closed meetings, but requires subsequent meetings to be open. Minn. Stat. § 13D.05, subd. 2(b).

N/A

There is no specific provision on this.

An entity may not close a meeting for this reason.

The Statute does not distinguish between fact-finding and nonfact-finding functions.

The deliberations of a public body considering a judge's recommended decision on imposition of a civil penalty or suspension or loss of a license or permit may be held in closed session. N.J.S.A. 10:4-12b(9). However, the final written decision of the head of the agency or the public body is a matter of public record. See N.J.S.A. 52:14B-10(d).

Deliberations are closed, but that portion of the hearing where evidence is offered or rebutted and the final action must occur in an open meeting.  § 10-15-1(H)(3), NMSA 1978.

Deliberations are open unless they fall within a specific statutory exemption.

There is no statutory or case law addressing this issue (not applicable).

The Oklahoma Administrative Procedures Act “provides for open meetings . . . up to the point the decision making is reached. The final decision, being a quasi-judicial action, is not required to be reached in an open meeting.” Stillwater Sav. & Loan Ass’n v. Oklahoma Sav. & Loan Board, 1975 OK 50, 534 P.2d 9.

See above.

In Kennedy v. Upper Milford Township Zoning Hearing Board, 834 A.2d 1104 (Pa. 2003), the Pennsylvania Supreme Court reversed a decision that the zoning hearing board, a quasi-judicial agency, was not permitted to take a recess to deliberate in private before voting on an application concerning the height of a radio-communications tower.  Notably, in Kennedy, the zoning hearing board heard testimony in public prior to the deliberations.

A public body making a decision regarding dismissal of an employee or the discipline of a regulated person or entity may discuss the decision in a meeting closed to the public, but may not make a decision outside of public view. S.C. Code Ann. § 30-4-70.

Uncertain.

No.

The definition of "meeting" in Section 551.001(4) includes "a deliberation between a quorum of a governmental body . . . during which public business or public policy over which the governmental body has supervision or control is discussed or considered or during which the governmental body takes formal action."

Deliberations of administrative bodies acting in a quasi-judicial capacity are closed, but the fact-finding portion of the quasi-judicial proceeding is open. See Andrews v. Utah Bd. of Pardons, 836 P.2d 790, 792-93 (Utah 1992); Common Cause of Utah v. Utah Pub. Serv. Comm’n, 598 P.2d 1312, 1315 (Utah 1979).

Yes. See 1 V.S.A. § 312(e) (exempting “deliberations of any public body in connection with any quasi-judicial proceeding” from coverage under the Open Meeting Law); id. at § 312(f) (“[a] written decision issued by a public body in connection with a quasi-judicial proceeding need not be adopted at an open meeting if the decision will be a public record”).

See the Administrative Process Act, Va. Code Ann. § 2.2-4000, et seq.

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Deliberations of adjudications by administrative bodies are closed, but fact finding is open. Wis. Stat. § 19.85(1)(a). The exception for deliberations applies only to a “case” that is the subject of a quasi-judicial trial or hearing. State ex rel. Hodge v. Turtle Lake, 180 Wis. 2d 62, 72, 508 N.W.2d 603, 607 (1993) (the term “case” contemplates a controversy between adverse parties; the exception does not apply to deliberations on a permit application). Adjudicative administrative hearings conducted before a hearing examiner are not expressly required to be open to the public because the Open Meetings Law only applies to “governmental bodies” i.e., multimember bodies.

Deliberations are open unless they would meet one of the exemptions allowing for executive sessions.