2. Description of each exemption
Some meetings or portions of meetings are considered to be outside the scope of the act altogether. See AS 44.62.310(d). Other portions of meetings are covered by the act but properly closed as executive sessions. The specific categories of meetings that can be held as executive sessions are spelled out in AS 44.62.310(c). If the meeting at issue is simply not covered by the act, then presumably the closed meeting can occur without satisfying the requirements of AS 44.62.310(b) requiring the group to first convene in a regularly noticed public session, have a roll call vote on going into closed session, and limit discussion to specific items noted in the motion for executive session. Municipal code provisions in state law that provide for a reasonable right to be heard at public meetings do not extend to the subject of an adjudication a right to participate in, or even be present at, the portion of an adjudicatory meeting closed pursuant to AS 44.62.310(d)(1) or its analogues. Griswold v. City of Homer, 55 P.3d 64, 73 (Alaska 2002).
Executive sessions are permitted only for reasons provided by law, and according to procedure set out in the OMA. There are three exceptions to the general requirement of open meetings and they are found in AS 44.62.310(c), which provides that:
The following excepted subjects may be discussed in executive session:
(1) matters, the immediate knowledge of which would clearly have an adverse effect upon the finances of the government unit;
(2) subjects that tend to prejudice the reputation and character of any person, provided the person may request a public discussion;
(3) matters which by law, municipal charter or ordinance are required to be confidential.
When a municipal government agency conducts closed meetings authorized by state law, these are permissible even if the public body is governed by a local charter or ordinance that only allows executive sessions in more limited circumstances. The Supreme Court discussed the preemption issue in Walleri v. City of Fairbanks, 964 P.2d 463, 468 (Alaska 1998). There, the plaintiff argued that the city had violated the law because it conducted an executive session regarding financial matters when the only exemption the Fairbanks Charter mentions is for discussion of questions that would tend to defame or prejudice the reputation and character of any person. The Court found that the plaintiff's claim was preempted by AS.29.10.200, a section of the state law governing municipal governments, which lists provisions that "apply to home rule municipalities as prohibitions on acting otherwise than as provided." So, the Court said, these provisions "supersede existing and prohibit future home rule enactments that provide otherwise." Id. One of the provisions mentioned in AS 29.10.200 is AS 29.20.020, which provides in part that the "meetings of all municipal bodies shall be public as provided in AS 44.62.310." Section .310(a), in turn, provides in part that "all meetings of a governmental body of a public entity of the state are open to the public except as otherwise provided by this section or another provision of law," and AS 44.62.310(c) lists the subjects that may be considered in executive session. Since this list is broader than the sole exception specified in the Fairbanks City Charter, the Fairbanks City Charter provides "otherwise," and is thus preempted. Id. Compare, Griswold v. Homer City Council, P.3d , 2018 WL 4375455, at *7 (Alaska, September 14, 2018) (noting that because the Public Records Act applies to municipalities, the municipal code “applies only to the extent it narrows the exceptions to disclosure and requires that more records be disclosed”). The Open Meetings Act also applies to municipalities, and there is no reason to assume a different approach to this question under the OMA.
It is possible for a body that is properly meeting in executive session to waive the protection of that executive session. For example, in an August 26, 1982, opinion to Natural Resources Commissioner John W. Katz, the Attorney General advised that by inviting representatives of a loan applicant into a meeting with the Agricultural Revolving Loan Fund to make a presentation during the course of an executive session, the ARLF waived any protections normally associated with executive sessions and, effectively, converted the executive session into a public hearing. When the executive session portion of the meeting reverted into a public session, the meeting became a public meeting under AS 44.62.310. Therefore, the board was required to provide to the applicant requesting it a copy of that portion of the tape recording of the board's executive session in which the applicant's representatives were invited to participate.
The types of meetings not covered by the OMA are found in AS 44.62.310(d)(1) through (7). They include the following:
(1) judicial or quasi-judicial bodies when holding a meeting solely to make a decision in an adjudicatory proceeding;
(3) parole or pardon boards;
(4) meetings of a hospital medical staff; or
(5) meetings of the governing body or any committee of a hospital when holding a meeting solely to act upon matters of professional qualifications, privileges or discipline; or
(6) staff meetings or other gatherings of the employees of a public entity, including meetings of an employee group established by policy of the Board of Regents of the University of Alaska or held while acting in an advisory capacity to the Board of Regents; or
(7) meetings held for the purpose of participating in or attending a gathering of a national, state or regional organization of which the public entity, governmental body or member of the governmental body is a member, but only if no action is taken and no business of the governmental body is conducted at the meetings, or
(8) meetings of municipal service area boards established under AS 29.35.450-20.35.490 when meeting solely to act on matters that are administrative or managerial in nature.
It is possible that there may be common law or constitutional rights of access to some meetings even though the OMA itself does not require that they be open (as in the case of access to courts). See, e.g., February 3, 1981, Attorney General Opinion No. J-66-339-81, concerning closed deliberations by the Public Employees' Retirement System [PERS ] Board. After noting that the PERS Board deliberations to consider appeals are exempt from coverage by the act as quasi-judicial adjudicatory proceedings pursuant to AS 44.62.310(d)(1), the Attorney General notes:
The holding of private deliberations following a public adjudicatory hearing is consistent with the traditional practice of private deliberations by a jury or court in civil and criminal proceedings and is, we believe, consistent with the spirit as well as the letter of the Alaska public meetings law. We caution that, despite the omission of a requirement in the PERS act that your appeals hearings be public, we believe that the Alaska public meetings law interpreted in the context of the Anglo-American tradition of open trials (see K. Davis, Administrative Law Treatise §14.13 (2d ed. 1980)), requires that all but the deliberative portions of your appeals hearings be held in public.
The addition of section .310(d)(6) in 1994 reflects what was generally understood to be the law before this. See, e.g., Kila Inc. v. State, Dept. of Administration, 876 P.2d 1102, 1109-1110 (Alaska 1994) (the Supreme Court found that the OMA contemplates meetings of a governmental body, and that no "meetings" to discuss contract modifications by any official or even informal "bodies" took place where the alleged "meetings" in question consisted of two separate teleconferences held between state employees who had no power to take collective action by vote, and representatives of private company seeking an award from the Department of Corrections for operation of an adult community residential center. The court agreed with the hearing officer's finding that the meetings were "informal" and that it would be "impossible to apply [the OMA] to the everyday dealings of the public employees when they meet with each other and those outside of state government in the day-to-day conduct of the state's business").
The OML does not apply to the following:
- Any judicial proceeding of any court or any political caucus of the legislature.
- Any conference committee of the legislature, except that all such meetings shall be open to the public.
- The commissions on appellate and trial court appointments and the commission on judicial qualifications.
- Good cause exception determinations and hearings conducted by the board of fingerprinting pursuant to sections 41-619.55 and 41-619.57.
A.R.S. § 38-431.08(A). Moreover, “[e]ither house of the legislature may adopt a rule or procedure, pursuant to article IV, part 2, section 8, Constitution of Arizona, to provide an exemption to the notice and agenda requirements of [the OML] or to allow standing or conference committees to meet through technological devices rather than only in person.” A.R.S. § 38-431.08(D).
Arizona's OML does not include any provision for closure of meetings “in the public interest” or for “discretionary reasons.”
(1) The personnel exemption is limited to consideration of the matters enumerated in Ark. Code Ann. § 25-19-106(c)(1): “employment, appointment, promotion, demotion, disciplining, or resignation of any public officer or employee.”
(a) The exemption applies only to matters involving individual officers or employees. Ark. Op. Att’y Gen. Nos. 96-371, 94-339, 91-070. Thus, a body may meet in executive session to screen and review applications for a position, Ark. Op. Att’y Gen. Nos. 94-339, 93-403; to consider discharging or disciplining an employee, Ark. Op. Att’y Gen. No. 81-213; to discuss a pay raise or promotion, Ark. Op. Att’y Gen. (June 10, 1974); to review an employee’s performance, if that review may lead to promotion, demotion, or changed compensation, Ark. Op. Att’y Gen. No. 88-058; or to take a non-binding “vote of confidence” with respect to an employee, if the purpose of the meeting is to consider the person’s continued employment or other personnel action. Ark. Op. Att’y Gen. No. 91-280.
(b) By contrast, an executive session to discuss general salary matters, an across-the-board pay increase, or overall performance of employees as a group is not permissible. Ark. Op. Att’y Gen. Nos. 91-070, 77-144. Similarly, a governing body may not meet in closed session to establish criteria for a particular position or to establish procedures for filling a vacancy. Ark. Op. Att’y Gen. No. 87-080.
(c) The exemption applies only to meetings concerning a “public officer or employee.” Elected or appointed public officials plainly fall within the definition, as do paid public employees. See, e.g., Ark. Op. Att’y Gen. Nos. 97-067 (city planning commissioner), 96-016 (appointed member of city board or commission), 85-155 (elected county officials), 81-213 (public school teachers), 79-140 (county judge), 76-141 (state employees).
(i) A doctor who has privileges at a county hospital is not an employee. Baxter Cnty. Newspapers Inc. v. Med. Staff of Baxter Gen. Hosp., 273 Ark. 511, 622 S.W.2d 495 (1981). Similarly, independent contractors and consultants are not employees. Inf. Ark. Att’y Gen. Op. (Nov. 19, 1979).
(ii) Licensed professionals, such as physicians, real estate agents, and attorneys are not within the definition, and meetings of regulatory boards with oversight of such professionals cannot be closed under the personnel exemption. Ark. Op. Att’y Gen. No. 84-091. Similarly, because persons claiming unemployment benefits are not employees of the Employment Security Department, its board of review may not invoke the exemption when considering unemployment claims. Ark. Op. Att’y Gen. No. 2001-040.
(iii) The exemption is also inapplicable to a meeting of a governing body to make appointments to an ad hoc advisory committee composed of persons who are not members of the governing body. Ark. Op. Att’y Gen. No. 74-039.
(d) If an evidentiary hearing is held in connection with a personnel matter (such as the termination or suspension of a public employee), the hearing itself must be open to the public, but the governing body may deliberate in executive session. Ark. State Police Comm’n v. Davidson, 252 Ark. 137, 477 S.W.2d 852 (1972); Ark. Op. Att’y Gen. Nos. 99-100, 85-181.
(e) All members of the governing body, including ex officio members, may attend an executive session. Ark. Op. Att’y Gen. Nos. 96-063, 95-227. In addition to the members, only those persons listed in the FOIA may attend an executive session held pursuant to the personnel exemption: the person holding the top administrative position at the agency, department or office involved: the employee’s immediate supervisor; the employee himself; and, in connection with hiring decisions, any person being interviewed for the “top administrative position” within the agency, department, or office. These persons have no right to attend, but may be present at the discretion of the governing body. Ark. Code Ann. § 25-19-106(c)(2)(A) & (B). See also Ark. Op. Att’y Gen. Nos. 2001-286, 97-130, 81-213. The governing body may elicit information from those persons permitted to attend an executive session; if that were not the case, allowing their attendance “would serve little purpose.” Ark. Op. Att’y Gen. No. 97-130.
(i) No one other than the persons included in the statutory list may attend an executive session held pursuant to the personnel exemption. See, e.g., Ark. Op. Att’y Gen. Nos. 97-130 (legal counsel for either the governing body or the employee), 97-067 (candidates for city planning commissioner), 96-269 (candidates for vacant city council position), 91-323 (county employee who could provide information about alleged misdeeds of another employee, unless he or she is that employee’s immediate supervisor or the top administrator of the agency), 88-082 (staff member who is not school superintendent or teacher’s immediate supervisor), 86-036 (discharged employee), 81-227 (police officers involved in investigation of city employees).
(ii) Although the governing body’s attorney cannot attend the executive session, Ark. Op. Att’y Gen. Nos. 97-130, 85-181, a member of the body who serves as its lawyer is entitled to be present. Inf. Att’y Gen. Op. (Feb. 19, 1985). The Attorney General has also opined that a lawyer may not attend an executive session held under the authority of another statute, such as the provision authorizing closed meetings for student disciplinary matters. Ark. Op. Att’y Gen. No. 87-478. This conclusion is highly dubious because Section 25-19-106(c)(2) deals only with those who may attend a closed meeting to discuss personnel matters. If a governing body meets in executive session pursuant to the FOIA’s licensing exemption, Ark. Code Ann. § 25-19-106(c)(5), or a specific statute that qualifies as an FOIA exemption, the body should, in its discretion, be able to permit attorneys (and others) to attend. See Ark. Op. Att’y Gen. No. 96-009 (parents may attend closed school board meeting held for the purpose of discussing a student’s expulsion).
(f) As amended in 1999, the statutory provision covering the personnel exemption states that “[t]he specific purpose of the executive session shall be announced in public before going into executive session.” Ark. Code Ann. § 25-19-106(c)(1). By using the term “specific purpose,” the legislature made plain that the announcement must reflect why the governing body is invoking the personnel exemption. For example, “we are going into executive session to consider the promotion of an employee” would suffice, since promotion is one of the matters that can be the basis for a closed meeting. By contrast, a general statement that “we are going into executive session to consider personnel matters” would not satisfy the specificity requirement. An earlier version of the amendatory legislation would have required the governing body to disclose the name of the particular employee, officer or candidate for employment. S.B. 901, 82d General Assembly (March 15, 1999). As a practical matter, the name of the individual being considered will have to be disclosed if any action is taken by the governing body, which must reconvene in public after the executive session and take a vote. Ark. Code Ann. § 25-19-106(c)(4). See Ark. Op. Att’y Gen. No. 96-009.
(2) The licensing exam exemption was added by Act 1259 of 2001. It provides that state boards and commissions “may meet in executive session for purposes of preparing examination materials and answers to examination materials which are administered to applicants for licensure . . . .” Ark. Code Ann. § 25-19-106(c)(5)(A). Also, boards and commissions “are excluded from [the FOIA] for the administering of examinations to applicants for licensure.” Id. § 25-19-106(c)(5)(B).
(a) Similar provisions had previously been enacted with respect to particular licensing agencies. E.g., Ark. Code Ann. § 17-100-203(a)(3) (allowing executive sessions of Board of Examiners in Speech-Language Pathology and Audiology to “prepare, approve, grade, or administer examinations”).
(b) Unlike the personnel exemption, Section 25-19-106(c)(5) contains no limitations on who may attend the executive session. Therefore, state licensing boards or commissions may allow staff members, consultants, attorneys, and other persons to be present at a closed meeting held pursuant to the exemption.
(3) The water system security exemption was added by Act 763 of 2003. The exemption provides that “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).” Ark. Code Ann. § 25-19-106(c)(6)(A).
“Municipally owned utility system” was added to the exemption by Act 186 of 2015. “Municipally owned utility system” was defined as “a utility system owned or operated by a municipality that provides: (i) Electricity; (ii) Water; (iii) Wastewater; (iv) Cable television; (v) Broadband service . . . [and] includes without limitation a: (i) Consolidated waterworks system . . . ; (ii) Utility system managed or operated by a nonprofit corporation . . . ; and (iii) Utility system owned or operated by a municipality or by a consolidated utility district . . . .” Act 186 of 2015, § 2. According to the emergency clause of the enacting legislation, this exemption was necessary because “public availability of certain information held by municipally owned utility systems jeopardizes the security of the utility system and of the citizens that receive services from the system.” Act 186 of 2015, § 5.
“Public water system” was defined by the act to “mean all facilities composing a system for the collection, treatment, and delivery of water to the general public, including, but not limited to, reservoirs, pipelines, reclamation facilities, processing facilities, and distribution facilities, and regional water distribution districts under The Regional Water Distribution Act, § 14-116-101 et seq..” Ark. Code Ann. § 25-19-103(8).
(a) According to the emergency clause of the enacting legislation, this exemption was necessary because information “could be obtained for terroristic purposes, including contamination and destruction of public water systems.” Act 763 of 2003, § 4.
(b) The exemption and its companion definition of public water system were to expire on July 1, 2005 and were extended to July 1, 2013, by Act 99 of 2011. Ark. Code Ann. §§ 25-19-103(6)(B), -106(c)(6)(B).
(c) Unlike the personnel exemption, Section 25-19-105(c)(6) contains no limitations on who may attend the executive session. Therefore, public agencies may allow staff members, consultants, attorneys, and other persons to be present at a closed meeting held pursuant to the exemption.
(d) This FOIA exemption expressly overrides Ark. Code Ann. § 14-116-308(d)(1), which generally prohibits the board of directors of a regional water distribution district from entering executive session at any time. Accord Ark. Code Ann. § 14-116-308(d)(2) (added by Act 1210 of 2003). However, Ark. Code Ann. § 14-250-110(d) generally prohibits the board of directors of a wastewater treatment district from entering executive session and was not similarly amended in 2003. Thus one may infer that as a more specific provision, the prohibition on executive sessions by wastewater treatment district boards remains operative. See Ark. Op. Att’y Gen. Nos. 97-178 (recognizing principle of statutory interpretation that more specific provision controls over more general provision), 96-016 n.2 (suggesting that wastewater district prohibition controls over later-in-time FOIA exemption for personnel matters, as Attorney General earlier reasoned that regional water distribution district prohibition, before 2003 amendment, controlled over later-in-time FOIA exemption for personnel matters, Ark. Op. Att’y Gen. No. 87-470).
Bagley-Keene Act: A state body is exempt from the open meeting requirements of the Bagley-Keene Act in the following circumstances:
(1) to consider the appointment, employment, evaluation of performance, or dismissal of a public employee or complaints or charges against a public employee, unless the employee requests that the hearing be public. However, if notice is not given to the employee 24 hours in advance of his or her right to have a public hearing on complaints, charges or to consider dismissal, any disciplinary or other action taken at the closed session shall be null and void. Cal. Gov't Code § 11126(a)(1);
(2) where a state body administers business or professional licenses to persons, to prepare, approve, grade or administer examinations. Cal. Gov't Code § 11126(c)(1);
(3) a meeting of an advisory body to a state licensing body to discuss matters concerning a licensee or applicant that would constitute an unwarranted invasion of privacy, including a review of an applicant's qualifications or any inquiry related to the licensing body's enforcement program. Cal. Gov't Code § 11126(c)(2);
(4) to deliberate on a decision regarding evidence in an administrative hearing pursuant to Government Code Section 11500 (Administrative Adjudication Act) or similar provisions of law. Cal. Gov't Code § 11126(c)(3);
(5) to consider and act upon the determination of a term, parole, release or other disposition of a prison inmate. Cal. Gov't Code § 11126(c)(4)
(6) to consider the conferring of honorary degrees or gifts, donations, and bequests that the donor has requested in writing to be kept confidential. Cal. Gov't Code § 11126(c)(5);
(7) a deliberative conference by the Alcoholic Beverage Control Appeals Board. Cal. Gov't Code § 11126(c)(6);
(8) to meet with its negotiator prior to the purchase, sale, exchange or lease of real property by or for the state body, to give instructions regarding the price and terms of payment, provided that an open session is held prior to the closed session to identify the property at issue and the persons with whom its negotiator may negotiate. Cal. Gov't Code § 11126(c)(7);
(9) to consider the appointment or termination of the Director of the California Post-secondary Education Commission and the Executive Director of the Council for Private Post-secondary and Vocational Education. Cal. Gov't Code § 11126(c)(8) & (9);
(10) a discussion by the Franchise Tax Board of confidential tax returns or information that cannot be lawfully disclosed to the public, or from considering matters pertaining to the appointment or removal of the Executive Officer of the Franchise Tax Board. Cal. Gov't Code § 11126(c)(10);
(11) consideration by the Board of Corrections of reports of crime conditions under section 6027 of the Penal Code. Cal. Gov't Code § 11126(c)(12);
(12) consideration by the State Air Resources Board of proprietary specifications and performance data of manufacturers. Cal. Gov't Code § 11126(c)(13);
(13) a review by the State Board of Education, the Superintendent of Public Instruction, or any committee advising them, of assessment instruments pursuant to Education Code Sections 60600 et seq. (school testing programs) and 60850 et seq. (high school exit exams). Cal. Gov't Code § 11126(c)(14);
(14) a discussion by the California Integrated Waste Management Board or its committees of confidential tax returns, trade secrets or confidential or proprietary information in its possession. Cal. Gov't Code § 11126(c)(15);
(15) a meeting of a state body that invests retirement, pension or endowment funds to consider investment decisions. Cal. Gov't Code § 11126(c)(16);
(16) a meeting of a state body, or boards, commissions, administrative officers or other representatives with its labor negotiators for the purpose of discharging its responsibilities under Government Code Sections 3500, 3512, 3525, 3540 (regarding local public employee organizations, excluded employees Bill of Rights, and public educational employment) pertaining to salaries, salary schedules, and fringe benefits. Cal. Gov't Code § 11126(c)(17);
(17) a meeting to consider matters posing a threat or potential threat of criminal or terrorist activity against the personnel, property, buildings, facilities, or equipment owned, leased, or controlled by the state body where disclosure would compromise or impede their safety or security. Cal. Gov’t Code§ 11126(c)(18)(A);
(18) a meeting of the California Sex Offender Management Board for the purpose of discussing matters pertaining to the application of a sex offender treatment provider for certification pursuant to Sections 290.09 and 9003 of the Penal Code. Cal. Gov’t Code § 11126(c)(19);
(19) a meeting of the Public Utilities Commission on the institution of proceedings or disciplinary actions against any person or entity under the commission's jurisdiction. However, any meeting to change the rates of entities under the commission's jurisdiction shall be open and public. Cal. Gov't Code § 11126(d)(1) & (2);
(20) to confer with or receive advice from its legal counsel regarding pending litigation when discussion in open session would prejudice the state body's position in the litigation. This subdivision is the exclusive expression of lawyer-client privilege in the Bagley-Keene Act and all other expressions of attorney-client privilege are specifically abrogated. Cal. Gov't Code § 11126(e)(1);
(21) a meeting of a state body operating under a joint powers agreement for insurance pooling of a claim for the payment of tort liability or public liability losses incurred by the state body or a member agency. Cal. Gov't Code § 11126(f)(1);
(22) consideration by the examining committee of the Board of Forestry of disciplinary action against an individual professional forester prior to filing an accusation against the forester. Cal. Gov't Code § 11126(f)(2);
(23) consideration by an administrative committee of the State Board of Accountancy of disciplinary action against an individual accountant prior to filing an accusation against the accountant, or to interview an individual applicant or accountant regarding his or her qualifications. Cal. Gov't Code § 11126(f)(3);
(24) a meeting of a state body, as defined by Government Code Sections 11121.2, 11121.7, 11121.8, to consider any matter that properly could be considered in a closed session. Cal. Gov't Code § 11126(f)(4),(5)&(6);
(25) consideration by the State Board of Equalization of the appointment or removal of the executive secretary of the Board or confidential taxpayer appeals or data, which is prohibited from public disclosure. Cal. Gov't Code § 11126(f)(7);
(26) consideration by the California Earthquake Prediction Evaluation Council, or other body appointed to advise the Director of the Office of Emergency Services or the Governor of matters relating to volcanic or earthquake predictions. Cal. Gov't Code § 11126(f)(9);
(27) consideration by the Teachers' Retirement Board or the Board of Administration of the Public Employees' Retirement System of matters pertaining to the recruitment, appointment, employment or removal of the chief executive officer or the Chief Investment Officer of the State Teachers' Retirement System or the Public Employees' Retirement System. Cal. Gov't Code § 11126(g)(1);
(28) consideration by the Commission on Teacher Credentialing of matters relating to recruitment, appointment or removal of its executive director. Cal. Gov't Code § 11126(g)(2);
(29) consideration by the Board of Administration of the Public Employees’ Retirement System of matters relating to the development of rates and competitive strategy for plans offered pursuant to Section 21660 of the Government Code. Cal. Gov’t Code § 11126(h);
(30) consideration by the Managed Risk Medical Insurance Board of matters relating to the development of rates and strategy for entities contracting or seeking to contract with the board, or any other arrangement the board is considering pursuant to specified provisions of the Government Code. Cal. Gov’t Code § 11126(i);
(31) consideration by the State Compensation Insurance Fund of specified claims where individual identifiable information would be disclosed, matters relating to audits and investigations which are not complete, and internal audits containing proprietary information, rates, contracting strategy, underwriting, or competitive strategy, pursuant to specified provisions of the Government Code. Cal. Gov’t Code § 11126(j);
(32) to discuss a state body’s response to a confidential final draft audit report from the Bureau of State Audits. Cal. Gov’t Code § 11126.2; and,
(33) to discuss matters involving trade secrets, nonpublic financial data, confidential or proprietary information, and other data and information by the California Gambling Control Commission where disclosure is otherwise prohibited by law or a tribal-state gaming compact. Cal. Gov’t Code § 11126.4.
Brown Act: A legislative body of a local agency is exempt from the open meeting requirements of the Brown Act in the following circumstances:
(1) to discuss and determine whether an applicant for a license or license renewal, who has a criminal record, is sufficiently rehabilitated to obtain a license. Cal. Gov't Code § 54956.7;
(2) to discuss the agency's response to a confidential final draft audit report from the Bureau of State Audits. Cal. Gov't Code § 54956.75 (a). However, the body must meet in public to discuss the audit report after it is publicly released by the Bureau of State Audits. Cal. Gov't Code § 54956.75(b).
(3) to meet with its negotiator prior to the purchase, sale, exchange or lease of real property by or for the local agency, to grant authority to its negotiator regarding the price and terms of payment. However, prior to the closed session, the legislative body must hold an open session in which it identifies its negotiators, the real property that is the subject of negotiations and the persons with whom its negotiators may negotiate. Cal. Gov't Code § 54956.8;
(4) to consider the purchase or sale of particular, specific pension fund investments, for those legislative bodies that invest pension funds. Cal. Gov't Code § 54956.81;
(5) when the agency provides services pursuant to a contract with health care providers for services to Medi-Cal providers (Welfare and Institutions Code Section 14087.3), to hear a charge or complaint from a member enrolled in its health plan if the member does not want his or her name, medical status or other information that is protected by federal law publicly disclosed. However, prior to the closed session, the legislative body must inform the member in writing of his or her right to have an open session. Cal. Gov't Code § 54956.86;
(6) the records of a health plan that is licensed under the Knox-Keene Health Care Service Plan Act of 1975 (Health and Safety Code section 1340) and governed by a county board of supervisors, that relate to provider rate or payment determinations, allocation or distribution methodologies for provider payments, formulas or calculations for these payments, and contract negotiations with providers of health care for alternative rates, are exempt from disclosure for three years after the contract is fully executed. Notwithstanding any other provision of law, the governing board of a health plan that is licensed under the Knox-Keene Health Care Service Plan Act of 1975 and that is governed by a county board of supervisors may order that a meeting held solely to discuss or act on health plan trade secrets, as defined in the statute, shall be held in closed session. Additionally, the governing board of a health plan may meet in closed session to consider and take action on matters pertaining to contracts and contract negotiations by the health plan with providers of health care service concerning all matters related to rates of payment. Cal. Gov't Code § 54956.87;
(7) to meet to confer with, or receive advice from, its legal counsel regarding pending litigation when discussion in open session concerning those matters would prejudice the local agency's position in the litigation. This subdivision is the exclusive expression of lawyer-client privilege in the Brown Act and all other expressions of attorney-client privilege are specifically abrogated. Cal. Gov't Code § 54956.9;
(8) a meeting of a joint powers agency formed for the purposes of insurance pooling, or a local agency member of the joint powers agency, to discuss a claim for the payment of tort liability losses, public liability losses, or workers' compensation liability incurred by the joint powers agency or a local agency member thereof. Cal. Gov't Code § 54956.95;
(9) a meeting of a joint powers agency formed for the purposes of insurance pooling to receive, discuss or take action concerning information obtained in closed session of the joint powers agency, provided the agency has adopted a policy or bylaw, or included in its joint powers agreement provisions that authorize the designation of confidential documents received in a closed session. Cal. Gov't Code § 54956.96;
(10) to meet with the Attorney General, district attorney, agency counsel, sheriff, chief of police or their respective deputies, security consultant or security operations manager on matters posing a threat to the security of public buildings, a threat to the security of essential public services, including water, drinking water, wastewater treatment, natural gas service and electric service, or a threat to the public's right of access to public services or public facilities. Cal. Gov't Code § 54957;
(11) to consider the appointment, employment, evaluation of performance, discipline or dismissal of a public employee or to hear complaints or charges brought against the employee by another person or employee. However, the employee must be given 24 hours’ notice of his or her right to have complaints or charges heard in an open session, otherwise any action taken against the employee is null and void. Any closed session held pursuant to this provision shall not include discussion or action on proposed compensation except for a reduction of compensation that results from the imposition of discipline. Cal. Gov't Code § 54957;
(12) to meet with its designated representative (negotiator) regarding salaries, salary schedules, or compensation paid in the form of fringe benefits of its represented and unrepresented employees, and, for represented employees, any other matter within the statutorily provided scope of representation. However, prior to the closed session, the body must identify its designated representatives in an open and public session. Cal. Gov't Code § 54957.6;
(13) a meeting of a multijurisdictional drug law enforcement agency, or an advisory body of such an agency, to discuss case records of any ongoing criminal investigation of the multijurisdictional drug law enforcement agency or of any party to the joint powers agreement, to hear testimony from persons involved in the investigation, and to discuss courses of action in particular cases. Cal. Gov't Code § 54957.8;
(14) to discuss a local agency employee’s application for early withdrawal of funds in a deferred compensation plan when the application is based on financial hardship due to an unforeseeable emergency due to illness, accident, casualty, or other extraordinary event as specified in the deferred compensation plan. Cal. Gov’t Code § 54957.10.
(15) for an educational body to hold a closed session for any purpose authorized under the Education Code. Cal. Gov’t Code § 54962. The Education Code authorizes a school board, county board of education or community college district board to consider discipline, suspension or expulsion of a student unless the student or his or her parent requests an open hearing. See, e.g., Cal. Educ. Code §§ 35146 (suspension and discipline by school board); 48912 (suspension and discipline by county school board); 48918(c) (expulsion by county school board); 72122 (suspension and discipline by community college district). Under the Education Code, the body’s final action is to be in open session. Cal. Educ. Code § 48918(j); but see Rim of the World Unified School Dist. v. Superior Court, 104 Cal. App. 4th 1393, 129 Cal. Rptr. 2d 11 (2002) (holding that the federal Family Education Rights and Privacy Act preempts Section 48918 to the extent it requires disclosure of pupil expulsion records). The Education Code also authorizes a closed session of a pupil’s challenge of the accuracy or completeness of his or her student records. Cal. Educ. Code § 49070.
(16) as expressly authorized under specific provisions of the California Health and Safety Code and Government Code for a hospital board to consider whether to grant privileges to a physician or to conduct hearings on the reports or medical audits or quality assurance committees that may reflect adversely on physicians with privileges and to discuss or deliberate on hospital district trade secrets. Cal. Gov’t Code § 54962 (citing §§ 1461, 1462, 32106 and 32155 of the Health & Safety Code and 37606, 37606.1 and 37624.3 of the Government Code).
No general provision for closure of meetings "in the public interest" is provided for in the Open Meetings Law.
Chance Meetings and Social Gatherings. The requirements of the Open Meetings Law do not apply to any chance meeting or social gathering at which discussion of public business is not the central purpose. Colo. Rev. Stat. § 24-6-402(2)(e).
a. Non-Meetings — FOIA states that a "meeting" does not include: "[a]ny meeting of a personnel search committee for executive level employment candidates; any chance meeting, or a social meeting neither planned nor intended for the purpose of discussing matters related to official business; strategy or negotiations with respect to collective bargaining; a caucus of members of a single political party notwithstanding that such members also constitute a quorum of a public agency; an administrative or staff meeting of a single-member public agency; and communication limited to notice of meetings of any public agency or the agendas thereof." "'Caucus' means a convening or assembly of the enrolled members of a single political party who are members of a public agency within the state or a political subdivision." Conn. Gen. Stat. §1-200(2). These "non-meetings" are exempt entirely from the requirements of the FOIA. In Giordano v. FOIC, 36 Conn. Supp. 117, 413 A.2d 493 (1979), the Connecticut Superior Court held that a "caucus" cannot include individuals who are not members of the public agency and that the purpose of a caucus is to discuss and decide on positions to be taken by the caucusing members of the public agency at a subsequent meeting.
b. Executive Sessions — See Meetings Outline at I.E.3.
a. Nine discretionary exemptions:
1. 29 Del. C. § 10004(b)(1): "Discussion of an individual citizen's qualification to hold a job or pursue training unless the citizen requests that such a meeting be open." This exception is limited to discussions of whether to hire a new employee such as a town manager or police chief. Del. Op. Att'y Gen., No. 01-ib01 (Jan. 16, 2001).
2. 29 Del. C. § 10004(b)(2): "Preliminary discussions on site acquisitions for any publicly funded capital improvements."
3. 29 Del. C. § 10004(b)(3): "Activities of any law-enforcement agency in its efforts to collect information leading to criminal apprehension."
4. 29 Del. C. § 10004(b)(4): "Strategy sessions, including those involving legal advice or opinion from an attorney-at-law, with respect to collective bargaining or pending or potential litigation, but only when an open meeting would have an adverse effect on the bargaining or litigation position of the public body." See Oberly v. Red Clay Consol. Sch. Dist., 1985 Del. Ch. LEXIS 399 (Del. Ch. Mar. 6, 1985) (cannot use meeting with attorney as device to avoid public discussion of merits of plan); Chem. Indus. Council of Del., Inc. v. State Coastal Zone Indus. Control Bd., 1994 WL 274295 (Del. Ch. May 19, 1994) (cannot use to discuss views on regulations and to draft new regulations); Common Cause of Del. v. Red Clay Consol. Sch. Dist., 1995 WL 733401 (Del. Ch. Dec. 5, 1995); Beebe Med. Ctr. v. Certificate of Need Appeals Bd., 1995 WL 465318 (Del. Super. June 30, 1995), aff'd, 676 A.2d 900 (Del. 1996). This exemption applies to a "question and answer" session/meeting between a county attorney and members of a public body who have been named in their individual capacity as defendants in a lawsuit. Del. Op. Att'y Gen., No. 05-ib28 (Sept. 7, 2005). Potential litigation under this exemption applies only when there is a realistic or tangible threat based on objective factors, such as a written demand letter, notice of intent to sue, etc. Del. Op. Att'y Gen., No. 05-ib24 (Aug. 18, 2005).
5. 29 Del. C. § 10004(b)(5): "Discussions which would disclose the identity of the contributor of a bona fide and lawful charitable contribution to the public body whenever public anonymity has been requested of the public body with respect to said contribution by the contributor."
6. 29 Del. C. § 10004(b)(6): "Discussion of the content of documents, excluded from the definition of 'public record' . . . where such discussion may disclose the contents of such documents." See Del. Op. Att'y Gen., No. 96-ib30 (Sept. 25, 1996) (determining that it was proper for the school board to meet in executive session to consider scholarship applications, since the board had to review academic transcripts and parents' tax returns, which documents were exempt from disclosure under FOIA).
7. 29 Del. C. § 10004(b)(7): "The hearing of student disciplinary cases unless the student requests a public hearing."
8. 29 Del. C. § 10004(b)(8): "The hearing of employee disciplinary or dismissal cases unless the employee requests a public hearing."
9. 29 Del. C. § 10004(b)(9): "Personnel matters in which the names, competency and abilities of individual employees or students are discussed, unless the employee or student requests that such a meeting be open." See, e.g., Del. Op. Att'y Gen., 99-ib05 (May 12, 1999); Del. Op. Att'y Gen., 99-ib03 (Apr. 28, 1999); but see Del. Op. Att'y Gen., No. 02-ib17 (Aug. 6, 2002) ("personnel matters" does not include discussions relating to the mechanics of the selection process and criteria for a new school board superintendent). This exemption does not apply to independent contractors hired by a public entity. Del. Op. Att'y Gen., No. 05-ib02 (Jan. 12, 2005); Del. Op. Att'y Gen., No. 05-ib14 (June 8, 2005).
b. Eleven mandatory exemptions:
1. 29 Del. C. § 10004(h)(1): Grand juries.
2. 29 Del. C. § 10004(h)(2): Petit juries.
3. 29 Del. C. § 10004(h)(3): Special juries.
4. 29 Del. C. § 10004(h)(4): The deliberations of any court.
5. 29 Del. C. § 10004(h)(5): The Board of Pardons and Parole.
6. 29 Del. C. § 10004(h)(6): Public Bodies having only one member.
7. 29 Del. C. § 10004(h)(8): In certain circumstances the Violent Crimes Compensation Board may close a meeting.
8. 29 Del. C. § 10004(h)(9): Deliberations of the State Human Relations Commissions Industrial Accident Board and the Tax Appeals Board for cases governed by the APA.
9. 29 Del. C. § 10004(e)(1): Emergency sessions.
10. 29 Del. C. § 10002(c): The General Assembly.
11. 29 Del. C. § 10002(d): Certain meetings of The University of Delaware and Delaware State University.
District of Columbia
Section 2-575(b) of the Open Meetings Act lists fourteen reasons why a meeting, or portion of a meeting, may be closed. It does not provide additional description. The Act allows a public body to seek an advisory opinion from the Open Government Office regarding compliance with the Act. D.C. Code Ann. § 2-579(g).
- Exempt Proceedings. The basic statutory exemptions include: Fla. Stat. § 112.324(6) (2014) (exempting certain proceedings of the Commission on Ethics concerning complaints of statutory violations of section 112 by public officers and employees); Fla. Stat. § 286.011(8) (2012) (providing exception for certain attorney-client meetings of governmental entities; see, infra, II.B.4); Fla. Stat. § 106.25(5) (2013) (exempting certain proceedings of elections commission); Fla. Stat. § 240.209(2) (1995) (exempting the search committee activities for the selection of a Board of Regents Chancellor up to the point of transmitting the list of nominees); Fla. Stat. § 447.205(10) (2011) (exempting the deliberation of the Public Employees Relations Commission); and Fla. Stat. § 402.165(8)(a) (2006) (exempting all matters before the Human Rights Advocacy Committees concerning abuse or deprivation of rights of an individual client or group of clients of the department subject to the protections of the section); Fla. Stat. § 395.3036 (2012) (exempting meetings of the governing boards of private corporations that lease public hospitals or other public health care facilities).
- Federal Programs. Section 286.011 (Sunshine Law) may be inapplicable to local officials when they are serving on executive committees of public bodies such as community action agencies created by and subject to federal law. Op. Att’y Gen. Fla. 71-191 (1971). See also, Op. Att’y Gen. Fla. 84-16 (1984). But see, Freeman v. Time Publ’g Co., 969 So. 2d 427 (Fla. 2d DCA 1997) (school board enjoined from holding closed-door meetings to discuss issues relating to continuing compliance with federal desegregation program).
- Trade Secrets. Any information relating to secret processes, methods of manufacture or production which may be required, ascertained, or discovered by inspection or investigation, shall not be disclosed in public hearings. Fla. Stat. § 403.111 (1996).
- Litigation. Section 286.011 (Sunshine Law) is applicable to meetings between a governmental agency and its attorney when such meetings are held to discuss proposed or pending litigation. See Neu v. Miami Herald Publ’g Co., 462 So. 2d 821 (Fla. 1985) (Sunshine Law applies to meetings between city council and a city attorney held for purpose of discussing settlement of litigation; legislative regulation of such communications does not usurp constitutional authority of the Supreme Court to regulate the practice of law, and is not at odds with the Code of Professional Responsibility’s provision for attorney-client confidentiality). Accord, City of Miami Beach v. Berns, 245 So. 2d at 40-41 (citing Doran, and holding city council cannot hold informal executive sessions from which the public is excluded to discuss pending litigation); Bd. of Pub. Instruction of Broward Cty. v. Doran, 224 So. 2d at 699 (whether Fla. Stat. sec 286.011 should authorize secret meetings for privileged matter is the concern of the Florida Legislature and unless the Legislature amends the statute, it should be construed as containing no exceptions).
Consultation with Attorneys; Consultants. In 1993, the Legislature created a narrow exception permitting a governmental entity, its chief executive and attorney to meet in private if the entity is a party to pending litigation and the attorney desires advice concerning settlement negotiations or strategy. Fla. Stat. § 286.011(8). Staff of Fla. H.R. Comm. On Gov’t Operations, CS/HB 491 (1993) Final Bill Analysis & Economic Impact Statement 2 (Fla. State Archives) (hereinafter “Final Staff Analysis”); Sch. Bd. of Duval Cty. v. Fla. Publ’g Co., 670 So. 2d 99 (Fla. 1st DCA 1996). “[T]he exemption is limited to discussions involving the actual settlement of presently pending litigation.” Anderson v. City of St. Pete Beach, 161 So. 3d 548, 552 (Fla. 2d DCA 2014) (seven shade meetings, which also covered a wide range of topics that were not connected to the pending litigation or litigation costs, such as readopting the comprehensive plan, violated the Sunshine Law, and subsequent public action could not cure the violation). This subsection of the Sunshine Law requires that: (a) the “attorney advise the entity at a public meeting that he desires advice concerning litigation”; (b) the subject matter of the meeting “be confined to settlement negotiations or strategy sessions related to litigation expenditures”; (c) the entire session be “recorded by a certified court reporter” making record of the time, all discussions and proceedings, the names of all persons present, and the names of all persons speaking; (d) the entity give “reasonable public notice of the attorney client session and the name of persons who will be attending the session” which must take place during an open meeting; and (e) the transcript “be made part of the public record upon conclusion of the litigation.” 286.011(8). It is important to note that this provision does “not create a blanket exception to the open meeting requirement for all meetings between a public board or commission and its attorney” but rather outlines an exception that is “narrower than the attorney-client communications exception recognized for private litigants.” Op. Att’y Gen Fla. 95-06, 4 (1995); see also City of Dunnellon v. Aran, 662 So. 2d 1026 (Fla. 5th DCA 1995) (“the legislature intended that a strict construction be applied”); Sch. Bd. of Duval Cty., 670 So. 2d 99 (inclusion of consultants to discuss settlement negotiations is prohibited); Freeman, 969 So. 2d 427(school board permitted to close meeting to discuss strategies related to litigation expenditures but must discuss compliance with desegregation mandate in the open); Zorc v. City of Vero Beach, 722 So. 2d 891, (only those person listed in the statutory exemption are authorized to attend closed attorney-client session; attendance of city clerk, deputy clerk, airport director, public works director, and city engineer was improper). However, when counsel takes formal action beyond the scope of mere strategy, an open meeting is required. Id.
- Labor negotiations. Meetings relating to collective bargaining must be open unless statutorily exempt. Cf. State ex rel. Crago v. Hunter, No. 75-515 (Fla. 19th Cir. Ct. 1975) (school board must conduct collective bargaining negotiations so that a person of reasonable experience and average intelligence can comprehend what is transpiring; this does not include conducting public bargaining sessions through written proposals and references which were not available to the public and representatives of the media present at such bargaining sessions).
Under the Public Employee Collective Bargaining Act, all discussions between the chief executive officer of a public employer and the legislative body of a public employer relative to collective bargaining are exempt from the Sunshine Law. Fla. Stat. § 447.605(1) (1997). In addition, all discussion between the Department of Administration and the Governor, and between the Department and the Administration Commission, or between any of their respective representatives, relative to collective bargaining are exempt from the provision of Fla. Stat. § 286.011; § 110.201(4) (1995). See Op. Att’y Gen. Fla. 85-99 (1985) (a duly appointed labor negotiating committee or its chairman, of a municipality having no city administrator, city manager, or other chief executive officer, comes within the definition of “chief executive officer of the public employer” for purposes of section 447.605(1)).
The section 447.605 exemption applies only in the context of actual and impending collective bargaining negotiations and does not apply to other, non-exempt topics discussed during the course of the same meeting. See City of Fort Meyers v. News-Press Publ’g Co., 514 So. 2d 408 (Fla. 2d DCA 1987) (section 286.011 applies to bargaining process after impasse in bargaining has been declared). In addition, pursuant to § 447.605(2), collective bargaining negotiations between a chief executive officer and a bargaining agent are not exempt from section 286.011. See generally Op. Att’y Gen. Fla. 75-48 (1975) (the exemption does not allow private discussions of a proposed “mini-PERC ordinance” or discussion regarding the stance that a public body intends to adopt in regard to unionization and/or collective bargaining). See also, Inf. Op. Att’y Gen. Fla. to Don Slesnick (January 12, 1977) (the exemption at section 447. 605(1) applies to meetings between a public employer and its negotiator to discuss whether or not to accept a special master’s recommendation); News-Press Publ’g Co. v. City of Fort Myers, No. 85-6733CA (Fla. 20th Cir. Ct. June 3, 1986) (legislature has divided Sunshine Law policy on collective bargaining for public employees in two: when the public employee is meeting with its own side and when it is meeting with the other side; in the former situation, it is required to comply with the law). The Sunshine Law applied to federal mediation, in which collective bargaining occurred, resulting in changes to pension benefits, without public notice of the sessions or publication of a transcript of the proceedings, when a non-party to the federal litigation acted as the union’s bargaining agent. Brown v. Denton, 152 So. 3d 8 (Fla. 1st DCA 2014).
- Students Discipline. If a student or his guardian wishes to challenge material found in the student’s records, hearings held pursuant to the challenge may be exempt from, the requirements of Fla. Stat. § 286.011. See also, Marston v. Gainesville Sun Publ’g Co., 341 So. 2d 783 (Fla. 1st DCA 1976) (exempting meetings of the Honor Court at the University of Florida from section 286.011, on the ground that such body considers privileged or confidential documents, i.e., student disciplinary records).
- Attorney Discipline. The grievance committee meetings of the Florida Bar are private. Preventing the public from attending such meetings does not violate section 286.011. Fla. Bar v. Comm., 2005 WL 2509186 (Fla. 2005).
The Act does not apply to staff meetings held for investigative purposes under duties or responsibilities imposed by law. O.C.G.A. § 50-14-3(a)(1).
Board of Pardons and Paroles.
The Act does not apply to deliberations and voting of the State Board of Pardons and Paroles. O.C.G.A. § 50-14-3(a)(2). In addition, the board may close meetings convened to receive information or evidence for or against clemency or in revocation proceedings, but only if the board determines that receipt of such information or evidence in an open meeting would present a substantial risk of harm or injury to a witness. Id.
Georgia Bureau of Investigation and other law enforcement and prosecutorial agencies.
The Act does not apply to meetings of the Georgia Bureau of Investigation or any other law enforcement agency in the state, including grand jury meetings. O.C.G.A. § 50-14-3(a)(3).
The Act does not apply to adoptions and related proceedings. O.C.G.A. § 50-14-3(a)(4).
The Act does not apply to gatherings involving an agency and one or more neutral third parties in mediation of a dispute between the agency and any other party. O.C.G.A. § 50-14-3(a)(5). But no decision or resolution agreed to by an agency at any such caucus shall become effective until ratified in a public meeting and the terms of any such decision or resolution are disclosed to the public. And any final settlement agreement, memorandum of agreement, memorandum of understanding, or other similar document, however denominated, in which an agency has formally resolved a claim or dispute shall be subject to the Open Records Act. Id.
Certain public hospital meetings.
The Act does not apply to meetings of any medical staff committee of a public hospital, O.C.G.A. § 50-14-3(a)(6)(A), of the governing authority or committee of a public hospital when performing a peer or medical review function under federal or state statute or regulation, § 50-14-3(a)(6)(B), citing § 31-7-15 and articles 6 and 6A of chapter 7 of title 31, or of the governing authority or committee of a public hospital in which the granting, restriction, or revocation of staff privileges or the granting of abortions under state or federal law is discussed, considered, or voted upon, § 50-14-3(a)(6)(C).
The Act does not apply to “incidental conversation unrelated to the business of the agency.” O.C.G.A. § 50-14-3(a)(7).
The Act does not apply to “e-mail communications among members of an agency.” O.C.G.A. § 50-14-3(a)(7). But such communications are subject to disclosure under the Open Records Act. Id.
Pending or potential litigation.
The Act does not permit any meeting to be closed on attorney-client privilege grounds for advice or consultation with legal counsel on whether to close a meeting. O.C.G.A. § 50-14-2(1). However, the Act does not repeal the attorney-client privilege, and permits agencies to close a meeting to consult and meet with legal counsel pertaining to pending or potential litigation, settlement, claims, administrative proceedings, or other judicial actions brought or to be brought by or against the agency or any officer or employee or in which the agency or any officer or employee may be directly involved. Id.
The Act also specifically permits an agency to close a meeting to discuss or vote to authorize the settlement of such a dispute. § 50-14-3(b)(1)(A). However, no vote in executive session to settle litigation, claims, or administrative proceedings, shall be binding on an agency until a subsequent vote is taken in an open meeting where the parties and principal settlement terms are disclosed before the vote. § 50-14-3. In addition, any final settlement agreement, memorandum of agreement, memorandum of understanding, or other similar document, however denominated, in which an agency has formally resolved a claim or dispute shall be subject to the Open Records Act. § 50-14-3(a)(5).
Real estate discussions.
The Act permits agencies to go into executive session to discuss or vote to:
- Authorize negotiations to purchase, dispose of, or lease property;
- Authorize the ordering of an appraisal related to the acquisition or disposal of real estate;
- Enter into a contract to purchase, dispose of, or lease property subject to approval in a subsequent public vote; or
- Enter into an option to purchase, dispose of, or lease real estate subject to approval in subsequent public vote.
O.C.G.A. § 50-14-3(b)(1)(B)-(E). But no vote in executive session to acquire, dispose of, or lease real estate shall be binding on an agency until a subsequent vote is taken in an open meeting where the identity of the property and the terms of the acquisition, disposal, or lease are disclosed before the vote. § 50-14-3(b).
The Act permits agencies to go into executive session when discussing or deliberating—but not to vote upon—the appointment, employment, compensation, hiring, disciplinary action or dismissal, or periodic evaluation or rating 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 on personnel matters, including whether to impose disciplinary action or dismiss a public officer or employee or when considering or discussing matters of policy regarding the employment or hiring practices of the agency. Id.
In addition, meetings by an agency to discuss or take action on the filling of a vacancy in the membership of the agency itself must at all times be open to the public. Id.
Public retirement system meetings.
The Act permits the trustees and investment committee of any public retirement system to go into executive session to discuss matters pertaining to investment securities trading or investment portfolio positions and composition. O.C.G.A. § 50-14-3(b)(3).
Discussion of records exempt from disclosure under the Open Records Act.
The Act permits agencies to go into closed session to consider records exempt from public disclosure but only if there are “no reasonable means by which the agency can consider the record without disclosing the exempt portions if the meeting were not closed.” O.C.G.A. § 50-14-3(b)(4).
The Act is not to be applied to disclose “tax matters which are otherwise made confidential by state law.” O.C.G.A. § 50-14-2(2).
Closed executive meetings are limited to the following enumerated subjects:
Consideration and evaluation of personal information relating to individuals applying for professional and/or vocational licenses in various trade businesses and professions — including banks, insurance companies, and brokerage firms — governed by the Department of Commerce and Consumer Affairs;
Consideration concerning the hire, evaluation, dismissal, or discipline of an officer or employee or of charges brought against the officer or employee, where consideration of matters affecting privacy will be involved, provided that if the individual concerned requests an open meeting, an open meeting must be held;
Deliberations concerning the authority of persons designated by the board to conduct labor negotiations or to negotiate the acquisition of public property, or deliberations during the conduct of such negotiations;
Consultations with the board's attorney on questions and issues pertaining to the board's powers, duties, privileges, immunities, and liabilities;
Investigative proceedings regarding criminal misconduct;
Consideration of sensitive matters related to public safety or security;
Consideration of matters relating to the solicitation and acceptance of private donations; and
Deliberations or decisions upon a matter that requires the consideration of information that must be kept confidential pursuant to a state or federal law, or a court order.
Haw. Rev. Stat. § 92-5(a).
The following permitted interactions between board members are not "meetings" that mandate public access:
Discussions between two members of a board relating to official board business to enable them to faithfully perform their duties, so long as no commitment to vote is made or sought and the two members do not constitute a quorum of their board;
Investigations of two or more board members, so long as the number of members do not constitute a quorum for the board, relating to the official business of their board provided that: (1) the scope the investigation and scope of each member's authority are defined at a meeting of the board, (2) all resulting findings and recommendations are present to the board at a meeting of the board; and (3) deliberation and decision making on the matter investigated, if any occurs only at a duly noticed meeting of the board held subsequent to the meeting at which any findings and recommendations of the investigation were presented;
Presentations, discussions or negotiations between two or more board members, so long as the number of members do not constitute a quorum for the board, relating to any position which the board has adopted at a meeting of the board, provided that the assignment is made and the scope of each member's authority is defined at a meeting of the board prior to the presentation, discussion or negotiation;
Discussions between two or more board members, so long as the number of members does not constitute a quorum for the board, relating to the selection of the board's officers;
Testimony and presentations received by board members at a meeting that had to be canceled for lack of quorum or failure to maintain communications through interactive conference technology; provided that deliberation or decisionmaking on any item for which testimony or presentations were received occurs only at a subsequent meeting, a record of such testimony and presentations is kept as ordinarily required, and copies of the testimony and presentations received at the canceled meeting are subsequently provided to all members of the board;
Attendance of two or more board members, but less than the number necessary to constitute a quorum, at an informational meeting or presentation on matters relating to official board business; provided that the meeting or presentation is not specifically or exclusively organized for or directed toward the board members;
Discussions between the governor and one or more members of a board not relating to a matter for which a board is exercising its adjudicatory function; and
Discussions between two or more board members and the head of a department to which the board is administratively assigned so long as discussion is limited to matters specified in Section 26-35.
Id. § 92-2.5.
In response to a request from the executive secretary of the Neighborhood Commission as to how the Board may develop a notice for Board members who attend community meetings, the Honolulu Corporate Counsel concluded that individual members could attend community meetings in their individual capacities without violating the open meetings law if none of the matters discussed at the community meetings were currently pending before the Neighborhood Board. Honolulu Corporate Counsel Memo. of Law No. 00-2 (May 19, 2000). The corporate counsel noted that this raised constitutional concerns that a membership on a public body should not deprive an individual of the opportunity to engage in public debate. However, if an item to be discussed at a community meeting was pending before a Neighborhood Board, Honolulu Corporate Counsel advised that Board members should be deputized, i.e., designate members, constituting less than a quorum, to attend the community meetings, and state that they may consider themselves doing it for the purpose of ascertaining the interests of those attending and reporting the same to the Board and/or for the purpose of informing those at the community meeting about a position taken by the Board. So long as the number of attending Board members do not constitute a quorum, Honolulu corporate counsel opined that deputization protected the attending Board members' "investigation" or "discussion" as a "permitted interaction" under Sections 92-2.5(b)(1) and (b)(2).
No executive session may be held for the purpose of taking any final action or making any final decision. Idaho Code § 74-206(3). Under Idaho Code § 74-206(1), executive sessions may only be held for the following purposes:
(a) To consider hiring a public officer, employee, staff member or individual agent, wherein the respective qualities of individuals are to be evaluated in order to fill a particular vacancy or need. This provision does not apply to filling a vacancy in an elective office or deliberations about staffing needs in general;
(b) To consider the evaluation, dismissal or disciplining of, or to hear complaints or charges brought against, a public officer, employee, staff member, or individual agent, or public school student;
(c) To acquire an interest in real property which is not owned by a public agency;
(d) To consider records that are exempt from disclosure as provided in chapter 1, title 74, Idaho Code;
(e) To consider preliminary negotiations involving matters of trade or commerce in which the governing body is in competition with governing bodies in other states or nations;
(f) To communicate with legal counsel for the public agency to discuss the legal ramifications of and legal options for pending litigation, or controversies not yet being litigated but imminently likely to be litigated. The mere presence of legal counsel at an executive session does not satisfy this requirement;
(g) By the commission of pardons and parole, as provided by law;
(h) By the custody review board of the Idaho department of juvenile corrections, as provided by law;
(i) To engage in communications with a representative of the public agency’s risk manager or insurance provider to discuss the adjustment of a pending claim or prevention of a claim imminently likely to be filed. The mere presence of a representative of the public agency’s risk manager or insurance provider at an executive session does not satisfy this requirement;
(j) To consider labor contract matters authorized under section 67-2345A [74-206A](1)(a) and (b), Idaho Code.
Labor negotiations receive special treatment under the Idaho Open Meeting Law. Until July of 2015, either side in labor negotiations could request meetings to be conducted in executive session and, notwithstanding other provisions of the Open Meeting Law dealing with public notice of executive session, any subsequent session of the negotiations could continue to be closed without further public notice. Now, all negotiations between a governing body and a labor organization must be in open session and shall be available for the public to attend. Idaho Code § [74-206A] 67-2345A(1). This requirement also applies to negotiations between the governing body's designated representatives and representatives of the labor organization. Id. This requirement also applies to meetings with any labor negotiation arbitrators, mediators or similar labor dispute meeting facilitators. Id. However, a governing body or its designated representatives may hold an executive session for the specific purpose of:
(a) Considering a labor contract offer or to formulate a counteroffer; or
(b) Receiving information about a specific employee, when the information has a direct bearing on the issues being negotiated and a reasonable person would conclude that the release of that information would violate that employee's right to privacy.
In addition, all documentation exchanged between the parties during labor negotiations, including all offers, counteroffers and meeting minutes shall be subject to public writings disclosure laws. Idaho Code § [74-206A] 67-2345A(2).
Idaho Code § 74-206(2) reaffirms the overall policy of the Open Meetings Law when applying the executive session provisions: “The exceptions to the general policy in favor of open meetings stated in this section shall be narrowly construed. It shall be a violation of this act to change the subject within the executive session to one not identified within the motion to enter the executive session or to any topic for which an executive session is not provided.”
The specified exemptions to open meetings are:
- Collective bargaining. Collective negotiating matters between the public body and its employees or their representatives. See 5 ILCS 120/2(c)(2).
- Evidence or testimony. Evidence or testimony presented in open hearing, or in closed hearing where specifically authorized by law, to a quasi-adjudicative body, as defined in the Open Meetings Act, provided that the body prepares and makes available for public inspection a written decision setting forth its determinative reasoning. See 5 ILCS 120/2(c)(4). A quasi-adjudicative body means an administrative body charged by law or ordinance with the responsibility to conduct hearings, receive evidence or testimony and make determinations based thereon, but does not include local electoral boards when such bodies are considering petition challenges. See 5 ILCS 120/2(d).
- Salaries. Deliberations concerning salary schedules for one or more classes of employees. See 5 ILCS 120/2(c)(2).
- Prisoner Review Board. Deliberations for decisions of the Prisoner Review Board. See 5 ILCS 120/(c)(18).
- Real property. Meetings where there is the purchase or lease of real property for the use of the public body—including meetings held for the purpose of discussing whether a particular parcel should be acquired—and the setting of a price for sale or lease of property owned by the public body may be placed under closed session. See 5 ILCS 120/2(c)(5) and (6).
Note: The authority to close meetings to discuss the sale of real property was specifically eliminated by amendment in 1967. See Op. Att'y. Gen. 024 (1980). (Illinois Attorney General opining that meeting may not be closed when topic under consideration is sale of real property by a municipal corporation. See id. at 108). A public body may meet in closed session to set a sales price for real estate owned by the public body. See 5 ILCS 120/2(c)(6). Also, the annexation of property cannot be considered acquisition of real property. See, e.g., Op. Att'y. Gen. 026 (1983) (opining that discussion of merits of annexation should be open).
- Public Safety. Security procedures and the use of personnel and equipment to respond to an actual, a threatened, or a reasonably potential danger to the safety of employees, students, staff, the public, or public property may be discussed in closed session. See 5 ILCS 120/2(c)(8).
- Securities and investments. The sale or purchase of securities, investments or investment contracts. See 5 ILCS 120/2(c)(7).
- Law enforcement agencies. Informant sources, the hiring or assignment of undercover personnel or equipment, or ongoing, prior or future criminal investigations, when discussed by a public body with criminal investigatory responsibilities. See 5 ILCS 120/2(c)(14).
- Litigation. Meetings held to discuss litigation: 1) when an action against, affecting or on behalf of the particular public body has been filed and is pending in a court or administrative tribunal; or 2) when the public body finds that such an action is probable or imminent. In this second case, the basis for such a finding must be recorded and entered into the minutes of the closed meeting. See 5 ILCS 120/2(c)(11); see also Board of Regents v. Reynard, 292 Ill. App. 3d 968, 686 N.E.2d 1222, 227 Ill. Dec. 66 (4th Dist. 1997) (holding that, where there was no finding of probable or imminent litigation, Act was violated and trial court erred in failing to find so and to enter an injunction against public body for future violations). "[The legislature intended to prevent public bodies from using the distant possibility of litigation as a pretext for closing their meetings to the public." Henry v. Anderson, 356 Ill. App. 3d 952, 957, 827 N.E.2d 522, 525, 292 Ill. Dec. 993, 996 (4th Dist. 2005). Where such litigation is pending, a public body may authorize the filing of a motion to enforce an order in the case during a meeting closed to the public. Allied Asphalt Paving Co. v. Village of Hillside, 314 Ill. App. 3d 138, 146-47, 731 N.E.2d 425, 431-32, 246 Ill. Dec. 897, 903-04 (1st Dist. 2000).
Note: This provision is subject to potential abuse by a public body, which may invoke the litigation exception on the slimmest possible grounds. The court in People ex rel. Hopf v. Barger, 30 Ill.App.3d 525, 332 N.E.2d 649 (2d Dist. 1975), concluded that the legislature did not intend that consultations between the governing body and its attorney must always be conducted openly where this could result in the public being placed at a litigious disadvantage: "This interpretation gives to legal consultation or prospective litigation the same limited confidentiality that is given under the Act to pending litigation." Id. at 659-60.
The Illinois Attorney General, in a 1983 opinion, expressed his views of the circumstances under which this exemption may properly be invoked:
1) The fact that the public body may become a party to a judicial proceeding because of the action it takes does not permit it to use the litigation exception to conduct its deliberations in closed sessions.
2) The presence of an attorney representing a client who opposes the contemplated action of the public body does not, in and of itself, constitute a reasonable ground for believing that litigation is forthcoming.
3) If there is a possibility of a lawsuit over the matter, this should be discussed in an open meeting, since it goes to the merits of the issue rather than to the litigation itself.
4) Consultations between the public body and its attorney concerning the potential legal impact and the legal ramifications of an item under consideration must be done publicly unless pending, probable or imminent litigation is the subject matter of the consultations. Once the litigation exception is properly invoked the only matters which may lawfully be disclosed at the closed meetings are the strategies, posture, theories and consequences of the litigation itself. See Op. Att'y. Gen. 026 (1983).
- Employment matters. A meeting may be closed to consider information regarding appointment, employment, compensation, discipline, performance or dismissal of specific employees of the public body or legal counsel for the public body, including hearing testimony on a complaint lodged against an employee of the public body or against legal counsel for the public body to determine its validity. See 5 ILCS 120/2(c)(1). Independent contractors are specifically excluded from this exemption. See 5 ILCS 120/2(d).
- Student disciplinary cases. A meeting may be closed to hear student disciplinary cases or to discuss matters relating to the placement of individual students in special education programs and on other matters relating to individual students. See 5 ILCS 120/2(c)(9) and (10).
- Professional ethics or performance. A meeting by an advisory body appointed to advise a licensing or regulatory agency on matters germane to the advisory body's field of competence. Meetings may also be closed when meeting with a representative of a statewide association of which the public body is a member with regards to self-evaluations, practices and procedures of professional ethics. See 5 ILCS 120/2(c)(15) and (16).
- Discrimination complaints. Meetings to discuss such complaints may be closed for conciliating complaints in the sale or rental of housing when closed meetings are authorized by the law or ordinance prescribing fair housing practices and creating a commission or administrative agency for their enforcement. See 5 ILCS 120/2(c)(13).
- Appointments to fill vacancies on public bodies. The selection of a person to fill a public office, as defined in the Open Meetings Act, including a vacancy in a public office, when the public body is given power to appoint under law or ordinance, or the discipline, performance or removal of the occupant of a public office, when the public is given power to remove the occupant under law or ordinance may be in closed session. See 5 ILCS 120/2(c)(3).
- Establish reserves or settle claims. A local public entity subject to this Act may meet in closed session to establish reserves or settle claims as provided in the Local Governmental and Governmental Employees Tort Immunity Act if otherwise the disposition of a claim or potential claim might be prejudiced. 5 ILCS 120/2(c)(12).
- Review or discuss claims. A public body subject to this Act may meet in closed session to review or discuss claims, loss or risk management information, records, data, advice or communications from or with respect to any insurer of the local public body or any intergovernmental risk management association or self insurance pool of which public body is a member. See 5 ILCS 120/2(c)(12).
- Illinois Experimental Organ Transplantation Procedures Board. The review or discussion of applications received under the Experimental Organ Transplantation Procedures Act. See 5 ILCS 120/2(c)(19).
- Health care professionals. The recruitment, credentialing, discipline or formal peer review of physicians or other health care professionals for a hospital, or other institution providing medical care, that is operated by the public body. See 5 ILCS 120/2(c)(17).
- State Employees Suggestion Award Board. The classification and discussion of matters classified as confidential or continued confidential by the State Government Suggestion Award Board. See 5 ILCS 120/2(c)(20).
- Closed meeting minutes. Discussion of minutes of meetings lawfully closed under this Act, whether for purposes of approval by the body of the minutes or semi-annual review of the minutes as mandated by Section 2.06 of the Open Meetings Act. See 5 ILCS 120/2(c)(21).
- State Emergency Medical Services Disciplinary Review Board. Deliberations for decisions of the State Emergency Medical Services Disciplinary Review Board. See 5 ILCS 120/2(c)(22).
- Municipal utility. The operation by a municipality of a municipal utility or the operation of a municipal power agency or municipal natural gas agency when the discussion involves (i) contracts relating to the purchase, sale or delivery of electricity or natural gas or (ii) the results or conclusions of load forecast studies. See 5 ILCS 120/2(c)(23).
- Death review team, executive council, residential or sexual assault health care facility. Meetings of a residential health care facility resident sexual assault and death review team or the Executive Council under the Abuse Prevention Review Team Act. See 5 ILCS 120/2(c)(24).
- Team of experts under Brian’s law. “Meetings of an independent team of experts under Brian’s Law. See 5 ILCS 120/2(c)(25).
Under Ind. Code § 5-14-1.5-6.1(b)(1)–(15), executive sessions are permitted only in the following instances:
(1) Where authorized by federal or state statute.
(2) For discussion of strategy for collective bargaining, initiation of litigation or litigation which is either pending or has been threatened specifically in writing; the implementation of security systems; or the purchase or lease of real property up to the time a contract or option to purchase or lease is executed by the parties. However, all strategy discussions must be necessary for competitive or bargaining reasons and must not include adversaries.
(3) For discussion of the assessment, design and implementation of school security systems.
(4) Interviews with industrial or commercial prospects or agents of industrial or commercial prospects by the department of commerce, the Indiana development finance authority, the film commission, the Indiana business modernization and technology corporation, or economic development commissions.
(5) To receive information about, and interview, prospective employees. See Common Council of City of Peru v. Peru Daily Tribune, 440 N.E.2d 726, 733 (Ind. Ct. App. 1982) (holding that proposed executive sessions threatened violation of the Open Door Law).
(6) With respect to any individual over whom the governing body has jurisdiction, to receive information concerning the individual’s alleged misconduct; and to discuss, before a determination, the individual’s status as an employee, a student or an independent contractor who is a physician or a school bus driver. (Ind. Code § 5-14-1.5-6.1(b)(6)). However, an executive session may not be used to receive evidence. See Town of Merrillville v. Peters, 655 N.E.2d 341, 343 (Ind. App. 1995) (holding that a closed police disciplinary hearing was a valid executive session and that the closed hearing did not violate due process); Berry v. Peoples Broad. Corp., 547 N.E.2d 231, 233–34 (Ind. 1989) (holding that the local sheriff’s merit board law prevailed over the Open Door Law’s executive session provisions).
(7) For discussion of records classified as confidential by state or federal statute.
(8) To discuss before a placement decision an individual student’s abilities, past performance, behavior and needs.
(9) To discuss a job performance evaluation of individual employees. (This does not apply to discussions of the salary, compensation or benefits of employees during a budget process.) See Guzik v. Town of St. John, 875 N.E.2d 258 (Ind. Ct. App. 2007) (holding that executive sessions are appropriate for discussing an individual employee’s job performance evaluation).
(10) When considering the appointment of a public official, to develop a list of prospective appointees, consider applications, and make one initial exclusion of prospective appointees from further consideration. However, interviews of prospective appointees must be conducted at a public meeting.
(11) To train school board members with an outside consultant on how to perform as public officials.
(12) To prepare or score examinations used in issuing licenses, certificates, permits or registrations under Ind. Code § 15-5-1.1 (Indiana Veterinary Practice Law) and Ind. Code § 25 (Professions and Occupations — Licenses, Registration and Certification).
(13) To discuss information and intelligence intended to prevent, mitigate, or respond to the threat of terrorism.
(14) To train members of a board of aviation commissioners appointed under IC 8-22-2 or members of an airport authority board appointed under IC 8-22-3 with an outside consultant about the performance of the role of the members as public officials. A board may hold not more than one (1) executive session per calendar year under this subdivision.
(15) For discussion by the governing body of a state educational institution of: (A) the assessment of; or (B) negotiation with another entity concerning the establishment of a collaborative relationship or venture to advance the research, engagement, or education mission of the state educational institution. However, this subdivision does not apply to any discussions regarding research that is prohibited under IC 16-34.5-1-2 or under any other law.
1. A governmental body may hold a closed session only by affirmative public vote of either two-thirds of the members of the body or all of the members present at the meeting. A governmental body may hold a closed session only to the extent a closed session is necessary for any of the following reasons:
a. To review or discuss records which are required or authorized by state or federal law to be kept confidential or to be kept confidential as a condition for that governmental body's possession or continued receipt of federal funds.
b. To discuss application for letters patent.
c. To discuss strategy with counsel in matters that are presently in litigation or where litigation is imminent where its disclosure would be likely to prejudice or disadvantage the position of the governmental body in that litigation.
d. To discuss the contents of a licensing examination or whether to initiate licensee disciplinary investigations or proceedings if the governmental body is a licensing or examining board.
e. To discuss whether to conduct a hearing or to conduct hearings to suspend or expel a student, unless an open session is requested by the student or a parent or guardian of the student if the student is a minor.
f. To discuss the decision to be rendered in a contested case conducted according to the provisions of chapter 17A.
g. To avoid disclosure of specific law enforcement matters, such as current or proposed investigations, inspection or auditing techniques or schedules, which if disclosed would enable law violators to avoid detection.
h. To avoid disclosure of specific law enforcement matters, such as allowable tolerances or criteria for the selection, prosecution, or settlement of cases, which if disclosed would facilitate disregard of requirements imposed by law.
i. To evaluate the professional competency of an individual whose appointment, hiring, performance, or discharge is being considered when necessary to prevent needless and irreparable injury to that individual's reputation and that individual requests a closed session.
j. To discuss the purchase or sale of particular real estate only where premature disclosure could be reasonably expected to increase the price the governmental body would have to pay for that property or reduce the price the governmental body would receive for that property. The minutes and the audio recording of a session closed under this paragraph shall be available for public examination when the transaction discussed is completed.
k. To discuss information contained in records in the custody of a governmental body that are confidential records pursuant to section 22.7, subsection 50.
l. To discuss patient care quality and process improvement initiatives in a meeting of a public hospital or to discuss marketing and pricing strategies or similar proprietary information in a meeting of a public hospital, where public disclosure of such information would harm such a hospital's competitive position when no public purpose would be served by public disclosure. The minutes and the audio recording of a closed session under this paragraph shall be available for public inspection when the public disclosure would no longer harm the hospital's competitive position. For purposes of this paragraph, “public hospital” means a hospital licensed pursuant to chapter 135B and governed pursuant to chapter 145A, 226, 347, 347A, or 392. This paragraph does not apply to the information required to be disclosed pursuant to section 347.13, subsection 11, or to any discussions relating to terms or conditions of employment, including but not limited to compensation of an officer or employee or group of officers or employees.2. The vote of each member on the question of holding the closed session and the reason for holding the closed session by reference to a specific exemption under this section shall be announced publicly at the open session and entered in the minutes. A governmental body shall not discuss any business during a closed session which does not directly relate to the specific reason announced as justification for the closed session.
3. Final action by any governmental body on any matter shall be taken in an open session unless some other provision of the Code expressly permits such actions to be taken in closed session.
4. A governmental body shall not exclude a member of the governmental body from attending a closed session, unless the member's attendance at the closed session creates a conflict of interest for the member due to the specific reason announced as justification for holding the closed session.
5. a. A governmental body shall keep detailed minutes of all discussion, persons present, and action occurring at a closed session, and shall also audio record all of the closed session.
b. (1) The detailed minutes and audio recording of a closed session shall be sealed and shall not be public records open to public inspection. However, upon order of the court in an action to enforce this chapter, the detailed minutes and audio recording shall be unsealed and examined by the court in camera. The court shall then determine what part, if any, of the minutes should be disclosed to the party seeking enforcement of this chapter for use in that enforcement proceeding. In determining whether any portion of the minutes or recording shall be disclosed to such a party for this purpose, the court shall weigh the prejudicial effects to the public interest of the disclosure of any portion of the minutes or recording in question, against its probative value as evidence in an enforcement proceeding. After such a determination, the court may permit inspection and use of all or portions of the detailed minutes and audio recording by the party seeking enforcement of this chapter. A governmental body shall keep the detailed minutes and audio recording of any closed session for a period of at least one year from the date of that meeting, except as otherwise required by law.
(2) This paragraph “b” does not require the office of ombudsman to obtain a court order to examine the detailed minutes and audio recording of a closed session when such examination is relevant to an investigation under chapter 2C and the information sought is not available through other reasonable means. Any portion of the minutes or recording released by a governmental body to the office of ombudsman shall remain confidential pursuant to section 2C.9.
6. Nothing in this section requires a governmental body to hold a closed session to discuss or act upon any matter.
Iowa Code § 21.5
Under K.S.A. 75-4318(g), KOMA does not apply to the following:
(1) any administrative body that is authorized by law to exercise quasi-judicial functions when such body is deliberating matters relating to a decision involving such quasi-judicial functions;
(2) the prisoner review board when conducting parole hearings or parole violation hearings held at a correctional institution;
(3) any impeachment inquiry or other impeachment matter referred to any committee of the house of representatives prior to the report of such committee to the full house of representatives.
KOMA also does not apply if expressly exempted “by state or federal law or by rules of the Kansas senate or house of representatives.” K.S.A. 75-4318(g)(4).
Ky. Rev. Stat. 61.810(1)(a): "Deliberations for decisions of the Kentucky Parole Board;"
Ky. Rev. Stat. 61.810(1)(b): "Deliberations on the future acquisition or sale of real property by a public agency, but only when publicity would be likely to affect the value of a specific piece of property to be acquired for public use or sold by a public agency;"
A public hospital could meet in closed session to discuss sale of assets to a private purchaser because "a public discussion of the proposed purchase would likely affect the sale price of the facilities." 93-OMD-56.
The Lexington-Fayette Urban County Government violated the Open Meetings Act when it met in closed session to discuss its dispute with the state concerning the "Ben Snyder Block." 95-OMD-57. Even if the discussion concerned a sale or acquisition of property, a public discussion "would have no effect on prices of the property" which had previously been agreed upon. Id.
A board's decision to bid at an absolute auction did not fall within the Open Meeting Act’s exemption for "[d]eliberations on the future acquisition . . . of real property by a public agency, but only when publicity would be likely to affect the value of a specific piece of property to be acquired for public use," because the board’s interest in bidding on the property could have been discussed in open session, giving all citizens an opportunity to discuss the idea without affecting the value of the property. Bd. of Comm'rs of Danville v. Advocate Communs., 527 S.W.3d 803, 807 (Ky. 2017).
Ky. Rev. Stat. 61.810(1)(c): "Discussions of proposed or pending litigation against or on behalf of the public agency;"
"The statute expressly provides that the litigation in question need not be currently pending and may be merely threatened. However, the exception should not be construed to apply 'any time the public agency has its attorney present' or where the possibility of litigation is still remote." Floyd County Board of Education v. Ratliff, 955 S.W.2d 921, 923-24 (Ky. 1997) (quoting Jefferson County Board of Education v. The Courier-Journal, 551 S.W.2d 25 (Ky. Ct. App. 1977)).
Nonetheless, a public agency may not go into closed session to discuss litigation to which it is not a party, even though this litigation involves identical issues to litigation proposed or pending against that public agency. See 93-OMD-119.
"While a public agency may meet in a closed session to discuss proposed or pending litigation, including topics such as litigation tactics and strategy, a final decision as to whether to litigate a particular situation cannot be made in a closed session." 97-OMD-96.
An example of a meeting which did not qualify for this exception is found in Floyd County Board of Education v. Ratliff, supra. The Supreme Court held that a school board's act of going into executive session to reconsider the reorganization plan of the school district did not constitute "discussions of proposed or pending litigation against or on behalf of the public agency." Ratliff, 955 S.W.2d at 923-24.
The attorney-client privilege alone does not satisfy the requirements of this exception. 97-1.
Ky. Rev. Stat. 61.810(1)(d): "Grand jury and petit jury sessions;"
Ky. Rev. Stat. 61.810(1)(e): "Collective bargaining negotiations between public employers and their employees or their representatives;"
Ky. Rev. Stat. 61.810(1)(f): "Discussions or hearings which might lead to the appointment, discipline or dismissal of an individual employee, member or student without restricting that employee's, member's or student's right to a public hearing if requested. This exception shall not be interpreted to permit discussion of general personnel matters in secret;"
Under this exception, the agency must disclose whether it will be discussing the possible appointment, discipline or dismissal of personnel of that particular agency during the closed session; it cannot simply make a general reference to the exception. 97-OMD-124. See also 97-OMD-10 ("The public is entitled to know the general nature of the discussion which would be that it involves either a possible appointment, a possible dismissal, or a possible disciplinary matter relative to a specific unnamed person or persons.").
This exemption does not allow a general discussion concerning a school reorganization plan when it involves multiple employees. Floyd County Board of Education v. Ratliff, 955 S.W.2d 921, 924 (Ky. 1997).
A discussion between a planning and zoning commission and a current employee as to a new employment contract falls under this exemption. See 94-OMD-63.
A school board violated the Open Meetings Act when it went into closed session to discuss the creation of a new position: "Creating a new position must be done in an open and public session while discussions as to the specific person or persons who may be selected for appointment to that position may be conducted in closed sessions." 94-OMD-106. See also 97-OMD-80 (A university's Board of Regents violated the Act when it went into closed session to discuss appointing individuals to a presidential search committee because it did not involve the appointment of employees, members or students.).
The exemption does not apply to discussions of an employee's resignation or contracts for independent contractors. Carter v. Smith, 366 S.W.3d 414, 420 (Ky. 2012).
Ky. Rev. Stat. 61.810(1)(g): "Discussions between a public agency and a representative of a business entity and discussions concerning a specific proposal, if open discussions would jeopardize the siting, retention, expansion or upgrading of the business;"
Once a business has publicly announced it is locating in the area, the public agency cannot invoke the exemption to close a meeting pertaining to discussions concerning that business locating in the area. 94-OMD-119.
Ky. Rev. Stat. 61.810(1)(h): "State and local cabinet meetings and executive cabinet meetings;"
Ky. Rev. Stat. 61.810(1)(i): "Committees of the General Assembly other than standing committees;"
Meeting of the House of Representatives Majority Caucus, to which all members of the Minority Caucus were also invited, constituted a meeting of the House of Representative and was not exempt as a meeting of a committee. 17-OMD-228.
Ky. Rev. Stat. 61.810(1)(j): "Deliberations of judicial or quasi-judicial bodies regarding individual adjudications or appointments, at which neither the person involved, his representatives, nor any other individual not a member of the agency's governing body or staff is present, but not including any meetings of planning commissions, zoning commissions or boards of adjustment;"
A county fiscal court is not a quasi-judicial body exempt from the Open Meetings Act. Ridenour v. Jessamine County Fiscal Court, 842 S.W.2d 532 (Ky. Ct. App.1992).
Ky. Rev. Stat. 61.810(1)(k): "Meetings which federal or state law specifically require to be conducted in privacy;"
Pursuant to this exception and the Family Educational Rights and Privacy Act of 1974, 20 U.S.C. § 1232g, a University's Financial Aid Professional Judgment Committee may go into closed session to discuss financial aid appeals, 98-OMD-142, and a Housing Appeals Committee at Eastern Kentucky University is authorized to go into closed session to discuss student housing appeals. 97-OMD-139.
Ky. Rev. Stat. 61.810(1)(l): "Meetings which the Constitution provides shall be held in secret."
Ky. Rev. Stat. 61.810(1)(m): “That portion of a meeting devoted to a discussion of a specific public record exempted from disclosure under [Ky. Rev. Stat.] 61.878(1)(m). However, that portion of any public agency meeting shall not be closed to a member of the Kentucky General Assembly;”
Ky. Rev. Stat. 61.878(1)(m) exempts from the Open Records Act certain “[p]ublic records the disclosure of which would have a reasonable likelihood of threatening the public safety by exposing a vulnerability in preventing, protecting against, mitigating, or responding to a terrorist act …”
Ky. Rev. Stat. 61.810(1)(n): “Meetings of any selection committee, evaluation committee, or other similar group established under KRS Chapter 45A or 56 to select a successful bidder for award of a state contract.”
a. Discussion of the character, professional competence, or physical or mental health of a person, unless that person requests that the discussion be held at an open meeting. The exception may not be used to call an executive session for discussion of the appointment of a person to a public body. La. Rev. Stat. Ann. § 42:17(A)(l). See Parent-Community Alliance for Quality Ed. Inc. v. Orleans Parish Sch. Bd., 385 So.2d 33 (La. App. 4th Cir.), writ denied, 386 So.2d 1379 (La. 1980) (allowing use of executive sessions to interview and discuss qualifications of candidates for school superintendent, who is considered an executive official, but not to engage in the selection process by vote or polling of committee members); accord, Brown v. East Baton Rouge Parish Sch. Bd., 405 So.2d 1148 (La. App. 1st Cir. 1981). Op. Att'y Gen. 91-158A. The Attorney General has expressed the opinion that this exemption includes discussion of juridical and artificial persons (i.e. corporations and partnerships), as well as individual human beings, Op. Att'y Gen. 96-358, but there is no case law specifically addressing this issue. One Attorney General opinion suggests that a public body is compelled by "privacy considerations" to discuss public employee "rating forms" in executive session. Op. Att'y Gen. 91-80, citing Trahan v. Larrivee, 365 So.2d 294 (La. App. 3rd Cir. 1979) (employee performance evaluations privileged from Public Records Act disclosure by state constitutional privacy right). Compare Op. Att'y Gen. 91-48, released only 15 days prior to Op. Att'y Gen. 91-80 (Open Meeting Law does not require executive session discussion of certain school board matters, but public disclosure may constitute actionable invasion of privacy, citing state constitution Article I, section 5 and Trahan v. Larrivee, supra). Section 6.1(A)(l) was amended in 1989 to require that except in cases of "extraordinary emergency," a public body must notify a person who is to be discussed at an executive session held under authority of the section. The notification must be in writing and must be provided at least twenty-four hours before the meeting.
b. Strategy sessions or negotiations with respect to (a) collective bargaining, (b) prospective litigation after formal written demand, or (c) litigation, "when an open meeting would have a detrimental effect on the bargaining or litigating position of the public body." 42:17(A)(2). The Attorney General has stated that it is not enough to state that the reason for going into executive session is "for the purpose of discussing the negotiations being conducted . . . on behalf of the Board." The negotiations must be specifically identified. The type of negotiations should be kept secret only if the negotiations would be "seriously jeopardized." "This should be done only after advice from counsel and only in the most extreme circumstances." Op. Att'y Gen. 86-434. Subsequent public disclosure of discussions and strategies held in executive session is not required. Op. Att'y Gen. 99-51. Opposing parties may attend the executive session without opening it to the general public. Id. Merely stating that an executive session is to consider "personnel, negotiations and/or litigation" violates the Open Meeting Law. Op. Att'y Gen. 85-789. There also must be attached to the notice of meeting a statement identifying the court, case number, and the parties relative to any pending litigation to be considered; and a statement identifying the parties involved and reasonably identifying the subject matter of any prospective litigation to be considered for which formal written demand has been received. La. Rev. Stat. Ann. § 42:7(A)(l)(iii). The statement must be attached regardless whether such matters will be discussed in an executive session. Id.
c. Discussion regarding security personnel, plans or devices. La. Rev. Stat. Ann. § 42:17(A)(3).
d. Investigative proceedings regarding allegations of misconduct. La. Rev. Stat. Ann. § 42:17(A)(4); Op. Att'y Gen. 98-134 (death investigations conducted by Child Death Review Panel may be conducted in executive session).
e. Cases of extraordinary emergency such as natural disaster or civil disturbances. La. Rev. Stat. Ann. § 42:17(A)(5).
f. Certain meetings of the State Mineral and Energy Board at which confidential records or matters are discussed. La. Rev. Stat. Ann. § 42:17(A)(6).
g. Conferences between a school board and individual students, tutors or parents regarding problems of such students, tutors or parents unless the student, tutor or parent requests an open meeting. La. Rev. Stat. Ann. § 42:17(A)(7).
h. Presentations and discussions at meetings of civil service boards of civil service test questions and answers. La. Rev. Stat. Ann. § 42:17(A)(8).
i. The portion of any meeting of the Second Injury Board during which records or matters regarding the settlement of a workers' compensation claim are required to be considered or discussed by the board with its staff in order to grant prior written approval as required by R.S. 23:1378(A)(6). La. Rev. Stat. Ann. § 42:17(A)(9).
j. "[A]ny other matters now provided for or as may be provided for by the legislature." La. Rev. Stat. Ann. § 42:6.1(A)(8). Two Attorney General opinions interpret this provision as permitting an executive session for the purpose of discussing any record to which the public is denied access under the Public Records Act. Op. Att'y Gen. 92-698 (discussion of "personal and/or corporate" tax returns and financial records by local citizens committee administering federal small business loan funds); Op. Att'y Gen. 89-550 (discussion of similar records by loan screening committee of Louisiana Economic Development Corporation). Neither opinion cites a single case in support of this conclusion, nor does either opinion mention the general presumption favoring the openness of public meetings and disfavoring exemptions. That presumption would seem to have particular force when there is no specific statutory provision authorizing an executive session. Indeed, precisely this analysis was advanced in Op. Att'y Gen. 90-132, which emphasizes that "any exception to the Open Meetings Law must be narrowly construed," citing Brown v. East Baton Rouge Parish Sch. Bd., supra ("eight enumerated reasons for an executive session are exclusive"); See also Op. Att'y Gen. 89-389.
k. Judicial proceedings. La. Rev. Stat. Ann. § 42:17(B).
l. Certain actions by the State Legislature. La. Rev. Stat. Ann. § 42:18.
Pursuant to 1 M.R.S.A. § 405(6), a public body may deliberate in executive sessions on the following matters and no others.
A. Discussion or consideration of the employment, appointment, assignment, duties, promotion, demotion, compensation, evaluation, disciplining, resignation or dismissal of an individual or group of public officials, appointees or employees of the body or agency or the investigation or hearing of charges or complaints against a person or persons subject to the following conditions:
(1) An executive session may be held only if public discussion could be reasonably expected to cause damage to the individual’s reputation or the individual's right to privacy would be violated;
(2) Any person charged or investigated must be permitted to be present at an executive session if that person desires;
(3) Any person charged or investigated may request in writing that the investigation or hearing of charges or complaints against that person be conducted in open session. A request, if made to the agency, must be honored; and
(4) Any person bringing charges, complaints or allegations of misconduct against the individual under discussion must be permitted to be present.
This paragraph does not apply to discussion of a budget or budget proposal;
B. Discussion or consideration by a school board of suspension or expulsion of a public school student or a student at a private school, the cost of whose education is paid from public funds, as long as:
(1) The student and legal counsel and, if the student be a minor, the student's parents or legal guardians are permitted to be present at an executive session if the student, parents or guardians so desire.
C. Discussion or consideration of the condition, acquisition or the use of real or personal property permanently attached to real property or interests therein or disposition of publicly held property or economic development only if premature disclosures of the information would prejudice the competitive or bargaining position of the body or agency;
D. Discussion of labor contracts and proposals and meetings between a public agency and its negotiators. The parties must be named before the body or agency may go into executive session. Negotiations between the representatives of a public employer and public employees may be open to the public if both parties agree to conduct negotiations in open sessions;
E. Consultations between a body or agency and its attorney concerning the legal rights and duties of the body or agency, pending or contemplated litigation, settlement offers and matters where the duties of the public body's counsel to the attorney’s client pursuant to the code of professional responsibility clearly conflict with the Act or where premature general public knowledge would clearly place the state, municipality or other public agency or person at a substantial disadvantage. See, e.g., Greif v. Town of Bar Harbor, 2017 ME 163, ¶¶ 12-14, 167 A.3d 1272;
F. Discussions of information contained in records made, maintained or received by a body or agency when access by the general public to those records is prohibited by statute;
G. Discussion or approval of the content of examinations administered by a body or agency for licensing, permitting or employment purposes; consultation between a body or agency and any entity that provides examination services to that body or agency regarding the content of an examination; and review of examinations with the person examined; and
H. Consultations between municipal officers and a code enforcement officer representing the municipality pursuant to Title 30-A, section 4452, subsection 1, paragraph C in the prosecution of an enforcement matter pending in District Court when the consultation relates to that pending enforcement matter.
(a) Personnel Matters. Meetings that concern the appointment, employment, assignment, promotion, discipline, demotion, compensation, removal, resignation, or performance evaluation of appointees, employees or officials over whom the entity has jurisdiction or any other personnel matter affecting one or more specific individuals may be closed. § 3-305(b)(1). However, this exception is to be construed narrowly and is inapplicable to discussions of issues affecting classes of public employees, as distinct from specific individuals. OMA Manual, at 4-2. See also 3 OMCB 67 (2000).
(b) Privacy Matters. Meetings that involve an individual's privacy or reputation with respect to a matter unrelated to public business may be closed. § 3-305(b)(2).
(c) Commercial/Business Matters. Meetings that relate to the acquisition of real property; matters concerning a proposal for the location, expansion or retention of a business or industrial organization within the State; the investment of public funds, and the marketing of public securities may be closed. § 3-305(b)(3)-(6) ; see, e.g., J. P. Delphey Ltd. P'ship v. Mayor and City of Frederick, 396 Md. 180, 913 A.2d s8 (2006) (concluding that aldermen had the authority to act upon an earlier, public decision to condemn property made in a closed session). The Act also allows a body to close a meeting to "discuss, before a contract is awarded or bids are opened, a matter directly related to a negotiating strategy or the contents of a bid or proposal, if public discussion or disclosure would adversely impact the ability of the public body to participate in the competitive bidding or proposal process." § 3-305(b)(14).
(d) Litigation Matters. Meetings that involve consultation with counsel to obtain legal advice, or consultation with staff, consultants, or other individuals regarding pending or potential litigation may be closed. § 3-305(b)(7)-(8). The Act, prior to the 1991 amendment, allowed bodies to close meetings to "consult with counsel." § 10-508(a)(7) (1984) (repealed 1992). The amendment narrowed this provision to "consult with counsel to obtain legal advice." § 3-305(b)(7). The OMA Manual notes that this language is intended to prevent public bodies from using the presence of counsel as a subterfuge for wrongfully closing a meeting — i.e., "lawyer as potted plant." Manual, at 4-6. Section 3-305(b)(8) may only be invoked when the discussion directly relates to the pending or potential litigation, and not to discuss the underlying policy issue. Id., at 4-7. The Act also allows closure of discussions of legislative findings when the legislative findings are discussed solely in the context of pending litigation. 3 OMCB 61 (2000). The exception applies only if the potential for litigation is concrete, rather than speculative. Id. at 4-7.
(e) Collective Bargaining Negotiations. Meetings to conduct collective bargaining negotiations or to consider matters regarding negotiations may be closed. § 3-305(b)(9).
(f) Public Security Matters. Meetings to discuss public security, if the public discussion would pose a risk to the public or public security, including discussions of the deployment of fire and police services and staff, and the development and implementation of emergency plans may be closed. § 3-305(b)(10).
(g) Examinations. Meetings to prepare, administer or grade scholastic, licensing or qualifying examinations may be closed. § 3-305(b)(11).
(h) Criminal Investigations. Investigative meetings of actual or possible criminal conduct may be closed. § 3-305(b)(12).
The municipal portion of the Massachusetts Open Meeting Law provides for the following nine purposes for executive sessions (G.L. c. 39, § 23B):
1. To discuss the reputation, character, physical condition or mental health rather than the professional competence of an individual, provided that the individual involved in such executive session has been notified in writing by the governmental body, at least forty-eight hours prior to the proposed executive session. Notification may be waived upon agreement of the parties. A governmental body shall hold an open meeting if the individual involved requests that the meeting be open. If an executive session is held, such individual shall have the following rights: (a) to be present at such executive session during discussions or considerations which involve that individual; (b) to have counsel or a representative of his own choosing present and attending for the purpose of advising said individual and not for the purpose of active participation in said executive session; (c) to speak in his own behalf.
2. To consider the discipline or dismissal of, or to hear complaints or charges brought against, a public officer, employee, staff member, or individual, provided that the individual involved in such executive session pursuant to this clause has been notified in writing by the governmental body at least forty-eight hours prior to the proposed executive session. Notification may be waived upon agreement of the parties. A governmental body shall hold an open meeting if the individual involved requests that the meeting be open. If an executive session is held, such individual shall have the following rights: (a) to be present at such executive session during discussions or considerations which involve that individual: (b) to have counsel or a representative of his own choosing present and attending for the purpose of advising said individual and not for the purpose of active participation; (c) to speak in his own behalf.
3. To discuss strategy with respect to collective bargaining or litigation if an open meeting may have a detrimental effect on the bargaining or litigating position of the governmental body, to conduct strategy sessions in preparation for negotiations with non-union personnel, to conduct collective bargaining sessions or contract negotiations with non-union personnel.
4. To discuss the deployment of security personnel or devices.
5. To investigate charges of criminal misconduct or to discuss the filing of criminal complaints.
6. To consider the purchase, exchange, lease or value of real property, if such discussions may have a detrimental effect on the negotiating position of the governmental body and a person, firm or corporation.
7. To comply with the provisions of any general or special law or federal grant-in-aid requirements.
8. To consider and interview applicants for employment by a preliminary screening committee or a subcommittee appointed by a governmental body if an open meeting will have a detrimental effect in obtaining qualified applicants; provided, however, that this clause shall not apply to any meeting, including meetings of a preliminary screening committee or a subcommittee appointed by a governmental body, to consider and interview applicants who have passed a prior preliminary screening.
9. To meet or confer with a mediator, as defined in § 23C of Chapter 233 with respect to any litigation or decision on any public business within its jurisdiction involving another party, group or body, provided that: (a) any decision to participate in mediation shall be made in open meeting session and the parties, issues involved and purpose of the mediation shall be disclosed; and (b) no action shall be taken by any governmental body with respect to those issues which are the subject of the mediation without deliberation and approval for such action at an open meeting after such notice as may be required by this section.
Virtually identical exemptions exist under the state and county parts of the Massachusetts Open Meeting Law except that they do not include numbers 8 and 9. G.L. c. 30A, § 11A 1/2; c. 34, § 9G.
- A public body may meet in a closed session "[t]o consider the dismissal, suspension, or disciplining of, or to hear complaints or charges brought against, or to consider a periodic personnel evaluation of, a public officer, employee, staff member, or individual agent, if the named person requests a closed hearing. Mich. Comp. Laws Ann. § 15.268(a). A person may rescind a request for a closed hearing at any time, after which the matter will be considered after the rescission only in open sessions. Mich. Comp. Laws Ann. § 15.268(a). The phrase "after the rescission" was recently added to the last sentence of Mich. Comp. Laws Ann. § 15.268(a), suggesting that matters do not need to be reheard from the beginning if a request for a closed hearing is rescinded.
- A public body may meet in a closed session to consider the dismissal, suspension, or disciplining of a student under two conditions: if the public body is part of the school district or institution which the student is attending, and if the student's parent or guardian requests a closed hearing. Mich. Comp. Laws Ann. § 15.268(b).
- "[S]trategy and negotiation sessions connected with the negotiation of a collective bargaining agreement' may be closed to the public if either negotiating party requests a closed hearing. Mich. Comp. Laws Ann. § 15.268(c). This exemption has been interpreted strictly to permit closed strategy sessions only when negotiation of a labor agreement is in progress or about to commence. Wexford County Prosecuting Attorney, supra, 268 N.W.2d at 348. Thus, a city commission's May meeting to discuss the residency policy for city employees did not qualify for exemption, since a mandatory collective bargaining subject was involved and since collective bargaining was not to begin until August for renewal of a labor contract to expire December 31. Id. "Negotiation sessions" as used in this exemption, refers to "actual collective bargaining sessions between employer and employee." Id. In Moore v. Fenville Public Schools Board of Education, 223 Mich. App. 196, 566 N.W. 2d 31 (1997), it was held that the members could meet in a closed session to reach consensus on a union's proposal because consensus reflected a goal in negotiations and not a final determination.
- A public body may meet in closed session "[t]o consider the purchase or lease of real property up to the time an option to purchase or lease that real property is obtained." Mich. Comp. Laws Ann. § 15.268(d). Under this section, it has been held proper for a public body to meet in closed session to vote upon rejection of an owner's offer to sell real property at a designated price, or to direct its agents as to their limits in negotiating for the purchase of real property. 1977-78 Op. Att'y Gen. 606 (1978). A public body may not hold a closed meeting for the purpose of disposing of a building through sale or lease, although it may hold a closed meeting for the purpose of acquiring or leasing a building up to the time that an option is obtained. 1977-78 Op. Att'y Gen. 389 (1978).
- Closed sessions may be held "[t]o consult with [an] attorney regarding trial or settlement strategy in connection with specific pending litigation, but only if an open meeting would have a detrimental financial effect on the litigating or settlement position of the public body." Mich. Comp. Laws Ann. § 15.268(e); see also The Detroit News Inc. v. City of Detroit, 185 Mich. App. 296, 460 N.W.2d 312, 315 (1990) (rejecting defendant's claim that closed meeting to review consent judgment regarding City's acquisition of Chrysler/Jefferson plant was exempt because settlement had already been accepted and there was no longer any issue in dispute); Manning v. City of East Tawas, 243 Mich. App. 244, 593 N.W. 2d 649 (1999) (the attorney does not need to be the attorney who is actually responsible for the litigation). People v Whitney, 228 Mich. App. 230, 578 N.W. 2d 329 (1998) (settlement negotiations occurring before initiation of a judicial or ADR proceeding is not "pending" litigation).
- A public body may meet in closed session "[t]o review the specific contents of an application for employment or appointment to a public office if the candidate requests that the application remain confidential." Mich. Comp. Laws Ann. § 15.268(f). However, the public body must hold open meetings to interview such candidates. Mich. Comp. Laws Ann. § 15.268(f). The Attorney General has interpreted this "open interview" rule as applying only for those positions for which employment interviews must be conducted by the public body itself, since requiring public interviews for all positions, with all the attendant public notice requirements, would force public bodies to spend an inordinate amount of time on hiring procedures. Thus, in all other cases, where the public body itself is not required to interview the applicant, interviews for employment may be conducted in private by the staff of the public body. 1977-78 Op. Att'y Gen. 21, 38 (1977). However, under a 1996 amendment to the OMA, Mich. Comp. Laws Ann. § 15.268(f) does not apply to searches for the selection of a president of an institution of higher education established under Section 4, 5, or 6 of Article VIII of the Michigan Constitution. Instead, other rules apply to such searches. See Mich. Comp. Laws Ann. § 15.268(j). An Ingham County Circuit Court in May, 1997, ruled, however, that a university governing body must interview finalist university presidential candidates in public, and only advisory presidential selection committees may conduct preliminary interviews in closed session. Detroit Free Press v. Northern Michigan University, Ingham County Circuit Court No. 97-860046-CZ. But see, Federated Publications Inc. v. Board of Trustees of Michigan State University, supra.
Although Mich. Comp. Laws Ann. § 15.263(5) affords members of the public an opportunity to address a public body at some point during an open meeting according to rules established and recorded by the public body, they do not have the right to ask questions of applicants for employment during open interviews. 1981-82 Op. Att'y Gen. 507 (1981).
- "Partisan caucuses of members of the state legislature" may meet in closed session. Mich. Comp. Laws Ann. § 15.268(g).
- A public body may meet in closed session "[t]o consider material exempt from discussion or disclosure by state or federal statute." Mich. Comp. Laws Ann. § 15.268(h). Thus, public bodies may meet in closed session to consider matters which are exempt from disclosure under the state or federal FOIAs. 1979-80 Op. Att'y Gen. 255, 270-71 (1979). Ridenour v. Board of Education, 111 Mich. App. 798, 314 N.W. 2d 760 (1981) (information may be discussed at a closed meeting if it is exempt from disclosure under the FOIA as information of a personal nature, the public disclosure of which would constitute a clearly unwarranted invasion of the individual's privacy); Booth Newspapers Inc. v. Regents of the University of Michigan, 93 Mich. App. 100, 286 N.W. 2d 55 (1979) (written opinion of counsel to the University Board of Regents need not have been disclosed under the FOIA, and thus was exempt from open meeting requirements even though the opinion was not rendered in regard to specific pending litigation and so did not fall under Mich. Comp. Laws Ann. § 15.268(e)). But, when faced with FOIA exempt material as applied to the OMA, a public body must state on the record those documents it deems exempt under the FOIA together with the associated FOIA exemption justifying nondisclosure, describe those documents — unless description would defeat the purpose of nondisclosure — and complete this process on the record in open session before conducting a closed session. Herald Company Inc. v. Tax Tribunal, 258 Mich. App. 78, 669 N.W.2d 862 (2003). Note, however, that the exemption contained in the FOIA regarding communications and notes within a public body or between public bodies (Mich. Comp. Laws Ann. § 15.243(l)(n)) does not constitute an exemption for purposes of the OMA, because that section specifically states that it does not constitute an exemption for purposes of section 8(h) of the OMA [Mich. Comp. Laws Ann. § 15.268(h)]. See 1979-80 Op. Att'y. Gen 496 (1979).
Any exemption based on a claim of attorney-client privilege under OMA is narrowly construed. Closed sessions may not be held to receive oral legal opinions and a proper discussion of a written legal opinion at a closed meeting is limited to any strictly legal advice presented in a written opinion. People v Whitney, 228 Mich. App. 230, 578 N.W. 2d 329 (1998). However, one court has reasoned that the term “consider” in 15.268(h) permits discussion and deliberation with respect to matters of attorney-client privilege. Berryman v. Madison Sch. Dist., No. 265996, 2007 Mich. App. LEXIS 464, at *4 (February 22, 2007).
Other statutes for which Mich. Comp. Laws Ann. § 15.268(h) has been held to apply are Mich. Comp. Laws Ann. § 400.9, involving administrative hearings which can be closed to the general public if the matters to be discussed involve records concerning categorical assistance, medical assistance, or federally funded assistance and service programs protected from disclosure under federal and state statutes. 1979-80 Op. Att'y Gen. 31, 33-35 (1979). Also exempt are proceedings involving the Youth Parole and Review Board pursuant to Mich. Comp. Laws Ann. § 803.308, part of which may be closed when confidential records, as defined by that section, are under discussion. 1979-80 Op. Att'y Gen. at 32-33 (1979). The meetings of several other public bodies are exempt, when they are deliberating on the merits of a case. See Mich. Comp. Laws Ann. § 15.263(8).
- A public body may meet in closed session "for a compliance conference conducted by the department of commerce under [Mich. Comp. Laws Ann. § 333.16231] before a complaint is issued.
- In another 1996 amendment to the OMA, a public body may meet in closed session "in the process of searching for and selection of a president of an institution of higher education established under Section 4, 5, or 6 of Article VIII of the Michigan Constitution, to review the specific contents of an application, to conduct an interview with a candidate, or to discuss the specific qualifications of a candidate. However, this exemption only applies if the institution's process for searching for and selecting a candidate meets all of the following requirements:
(1) the search committee has at least one student, one faculty member, one administrator, one alumnus, and one representative of the general public. The search committee may also include one or more members of the governing board, but not a quorum of the governing board. No one of these groups can constitute a majority of the search committee.
(2) After the search committee recommends the five final candidates, the governing board does not take a vote on a final section until at least 30 days after the five final candidates have been publicly identified by the search committee.
(3) The deliberations and vote of the governing board of the institution on selecting the president take place in an open session of the governing board. An Ingham County Circuit Court ruling has held that this provision applies to interviews of candidates, as well.
The Open Meeting Law excludes from its terms meetings of the commissioner of corrections and "a state agency, board, or commission when it is exercising quasi-judicial functions involving disciplinary proceedings." Minn. Stat. § 13D.01, subd. 2.
The remaining exemptions permit meetings to be closed, but may require notice and be otherwise governed by the act. Those exemptions include exemptions for labor negotiations (Minn. Stat. § 13D.03, subd. 1), preliminary consideration of allegations or charges against an individual subject to its authority (Minn. Stat. § 13D.05, subd. 2(b)), performance evaluations (Minn. Stat. § 13D.05, subd. 3(a)), meetings to discuss particular types of data made non-public under the Act (Minn. Stat. § 13D.05, subd. 2(a)) meetings involving attorney-client privileged communications (Minn. Stat. § 13D.05, subd. 3(b)), and meetings involving the proposed purchase or sale of real or personal property by the public body. (Minn. Stat. § 13D.05, subd.3(c)).
a. "Transaction of business and discussion of personnel matters relating to the job performance, character, professional competence, or physical or mental health of a person holding a specific position." § 25-41-7(4)(a). This exemption includes the transaction of business and discussions regarding "employment or job performance of a specific person in a specific position or termination of an employee holding a specific position," including discussion "concerning a line item in a budget which might affect the termination of an employee or employees" but not including final budgetary approval. § 25-41-7(k). The Legislature adopted these definitions in 1990 to reject the suggestion in Hinds County Board of Supervisors v. Common Cause, 551 So. 2d 107, 113 (Miss. 1989) that "personnel matters" could include a "large area of subject matter" such as an "increase in life insurance" and the even broader views stated by the trial court. A "personnel matter" must relate to an employee "holding a specific position." Discussion of matters affecting employees generally are not exempt. Also not exempt are discussions concerning other state officials, the employees of other agencies, or independent contractors such as architects. Id. at 124-35. See also Note, The Personnel Matters Exception to the Mississippi Open Meetings Act — A Cloud Over the Sunshine Law, 7 Miss. Coll. L. Rev. 181 (1987). Members of the Public Employees' Retirement System may request closure of hearings regarding a member's mental or physical incapacitation for the future performance of duty. § 25-11-113(1)(c).
b. "Strategy sessions or negotiations with respect to prospective litigation, litigation or issuance of an appealable order when an open meeting would have a detrimental effect on the litigating position of the public body." § 25-41-7(4)(b). Att’y Gen. Op. 2006-00127 (May 19, 2006). A public body can invoke this exception and close a meeting concerning city annexation, even when no attorney is present. The phrase "prospective litigation" "connotes litigation reasonably likely to occur in the reasonably foreseeable future," not "imminent" litigation. Major and Aldermen v. Vicksburg Printing & Pub. Co., 434 So. 2d 1339-40 (Miss. 1983); Op. Att'y Gen. May 1, 1987 to John R. Drennan.
c. "Transaction of business and discussion regarding the report, development or course of action regarding security personnel, plans or devices." § 25-41 -7(4)(c).
d. "Investigative proceedings by any public body regarding allegations of misconduct or violation of law." § 25-41-7(4)(d).
e. "Any body of the Legislature which is meeting on matters within the jurisdiction of such body." § 25-41-7(4)(e).
f. "Cases of extraordinary emergency which would pose immediate or irrevocable harm or damage to persons and/or property within the jurisdiction of such public body." § 25-41-7(4)(f). This exemption was interpreted to allow the State Board of Medical Licensure to hold executive sessions regarding the licensing of abortion doctors. Op. Att'y Gen. Apr. 20, 1995 to P. Doyle Bradshaw.
g. "Transaction of business and discussion regarding the prospective purchase, sale or leasing of lands." § 25-1-(4)(g).
h. "Discussions between a school board and individual students who attend a school within the jurisdiction of such school board or the parents or teachers of such students regarding problems of such students or their parents or teachers." § 25-41-7(4) (h).
i. "Transaction of business and discussion concerning the preparation of tests for admission to practice in recognized professions." § 25-41-7(4)(i). A 1988 statute purports also to exempt meetings of the Mississippi Advisory Council in Occupational Therapy "upon request of an applicant who fails an examination, to prepare a response indicating any reason for his or her failure." § 73-24-11.
j. "Transaction of business and discussions or negotiations regarding the location, relocation or expansion of a business or an industry." § 25-41-7(4)(j).
Prior to 1991, the Montana open meetings law permitted the closing of a meeting to discuss collective bargaining or litigation strategy "when an open meeting would have a detrimental effect on the bargaining or litigating position of the public agency." Mont. Code Ann. § 2-3-203(4). In two successive cases in 1991 and 1992, the Montana Supreme Court struck down the litigation exception, at least insofar as the litigation under discussion is between two governmental entities, and struck down the collective bargaining strategy exception in its entirety. Great Falls Tribune Co. Inc. v. Great Falls Pub. Sch., 255 Mont. 125, 841 P.2d 502, (1992); Associated Press v. Board of Pub. Educ., 246 Mont. 386, 804 P.2d 376 (1991). The statute has been amended to conform to these decisions, although the continuing viability of what remains of the litigation exception is open to question.
The privacy "exemption" analysis is made following the same three-part test used for determining whether records may be kept confidential. The state supreme court has imposed the following judicial guidelines by which public access to records and meetings may be denied under a constitutional balancing test:
1. Did the person involved have an actual or "subjective" expectation of privacy; and, if so
2. Is that expectation "reasonable"?
3. If the answers to paragraphs 1 and 2 are affirmative, then the documents containing private information may be withheld if the demands of individual privacy clearly outweigh the merits of public disclosure. If the answer to either 1 or 2 is negative, then the documents are available for public inspection.
See Missoulian v. Board of Regents, 207 Mont. 513, 675 P.2d 962 (1984); Flesch v. Board of Trustees, 241 Mont.158, 786 P.2d 4 (1990).
A public body may not close a meeting to discuss matters of individual privacy without first notifying the person who holds the privacy rights. Failure to do so will constitute a basis for voiding a decision made in that session.
Open Meetings Act allows for closed sessions where the 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." The Open Meetings Act then lists nonexclusive examples deemed to meet this standard. Those examples are discussed below.
Strategy sessions. Neb. Rev. Stat. §84-1410(1)(a) allows public body to meet in closed session for "[s]trategy sessions with respect to collective bargaining, real estate purchases, pending litigation, or litigation which is imminent evidenced by communication of a claim or threat of litigation to or by the public body."
Discussion of security. Neb. Rev. Stat. §84-1410(1)(b) allows public body to meet in closed session for "[d]iscussion regarding deployment of security personnel or devices."
Investigating crime. Neb. Rev. Stat. §84-1410(1)(c) allows public body to meet in closed session for "[i]nvestigative proceedings regarding allegations of criminal misconduct."
Job performance evaluation. Neb. Rev. Stat. §84-1410(1)(d) allows public body to meet in closed session for "[e]valuation of the job performance of a person when necessary to prevent needless injury to the reputation of a person and if such person has not requested a public meeting."
Election or appointment of new member. A closed session may not be held for purposes of "discussion of the appointment or election of a new member to any public body." Neb. Rev. Stat. §84-1410(1).
1. N.R.S. 241.030 permits a public body to close a meeting to consider the character, alleged misconduct, professional competence, or physical or mental health of a person. This provision cannot be used to close a meeting to consider the character, alleged misconduct, professional competence, or physical or mental health of an elected member of a public body or a person who is an appointed public officer or who services at the pleasure of a public body as a chief executive or administrative office or in a comparable position, including, without limitation, a president of a university or community college within the University and Community College System of Nevada, a superintendent of a county school district, a county manager and a city manager. NRS 241.031(1)(a)(b). This exception does not apply if the consideration does not pertain to the person's role as an elected member of a public body or as an appointed public officer. NRS 241.031(2).
2. Judiciary proceedings are exempt. NRS 241.030(4)(a).
3. Any person who willfully disrupts a meeting to the extent that its orderly conduct is made impractical may be removed. NRS 241.030(4)(b).
4. Witnesses may be excluded from a meeting during the examination of other witnesses. NRS 241.030(4)(b).
The Statute excludes from the definition of "meeting" the following:
(1) “A chance, social or other encounter not convened for the purpose of discussing or acting upon such matters shall not constitute a meeting if no decisions are made regarding such matters.”
(2) “Strategy or negotiations with respect to collective bargaining;
(3) Consultation with legal counsel;
(4) A caucus consisting of elected members of a public body of the same political party who were elected on a partisan basis at a state general election or elected on a partisan basis by a town or city which has adopted a partisan ballot system pursuant to RSA 669:12 or RSA 44:2; or
(5) Circulation of draft documents which, when finalized, are intended only to formalize decisions previously made in a meeting; provided, that nothing in this subparagraph shall be construed to alter or affect the application of any other section of RSA 91-A to such documents or related communications.” RSA 91-A:2,I.
See N.J.S.A. 10:4-12b. The public may be excluded from discussion of:
(i) any matter which, by express provision of federal or state statute or rule of court is rendered confidential;
(ii) any matter in which the release of information would impair the right to receive federal funds;
(iii) any matter the disclosure of which would constitute an unwarranted invasion of privacy, including records, reports, recommendations, data, or other personal material pertaining to a specific individual admitted to or served by a training, educational, social service, medical, health, custodial, child protection, rehabilitation, legal defense, welfare, housing, relocation, insurance, or similar program or institution operated by a public body, unless the individual concerned shall request in writing that the same be disclosed publicly;
(iv) any collective bargaining agreement, or the terms and conditions proposed for inclusion in a collective bargaining agreement, including the negotiation with employees or representatives of employees;
(v) any matter involving the purchase, lease or acquisition of real property with public funds, or the setting of banking rates or the investment of public funds, where the discussion could adversely affect the public interest;
(vi) any tactics or techniques to be used in protecting the safety and property of the public, where disclosure could impair such protection and any investigations of possible violations of the law;
(vii) any pending or anticipated litigation or contract negotiation in which the public body is or may be a party, or any matters falling within the attorney-client privilege;
(viii) any matter involving employment, appointment, termination of employment, evaluation of performance of, promotion or disciplining of any current or prospective public employee or appointee, unless all the individual employees or appointees whose rights could be adversely affected request in writing that such discussion take place at a public meeting. Note that this exception does not apply where the public body is appointing a person to fill the unexpired term of an elected official. See Gannett v. Board of Education of Manville, 201 N.J. Super. 65,492 A.2d 703 (Law Div. 1984);
(ix) any deliberations of a public body occurring after a public hearing that may result in the imposition of a specific civil penalty upon the responding party or the suspension or loss of a license or permit belonging to the responding party as a result of an act or omission for which the responding party bears responsibility. Note that this last exception applies only to the deliberations of a public body following a public hearing. However, where a state statute requires that the entire hearing be held in private, it takes precedence over this exception. See Cringle v. Maywood Board of Education 164 N.J. Super. 595,397 A.2d 400 (Law Div. 1979). It is also important to note that the closed session is limited to discussion; any action by the public body must be taken in a duly noticed public meeting. See N.J.S.A. 10:4-12b and Houman v. Pompton Lakes, 155 N.J. Super. 129,382 A.2d 413 (Law Div. 1977).
The Legislature has provided for ten specific exemptions to the New Mexico Open Meetings Act.
a. meetings pertaining to the issuance, suspension, renewal or revocation of a license, except that hearing in which evidence is offered or rebutted, is open, and all final actions must be taken at open meetings. NMSA 1978 § 10-15-1(H)(1); this section also protects confidential communications between attorneys and their public agency clients, but settlement agreements may be outside the privilege. Bd. of Comm'rs of Doña Ana County v. Las Cruces Sun News, 2003-NMCA-102 ¶ 25, 134 N.M. 283, 76 P.3d 36;
b. limited (individual) personnel matters; an aggrieved public employee may demand a public hearing. Judicial candidates interviewed by any commission shall have the right to demand an open interview. NMSA 1978 § 10-15-1(H)(2);
c. deliberations by a public body in connection with an administrative adjudicatory proceeding, but an open meeting is required for any proceeding in which evidence is offered or rebutted, as well as the final action taken. NMSA 1978 § 10-15-1(H)(3);
d. discussions that identify any individual student unless a student, parent, or guardian requests otherwise. NMSA 1978 § 10-15-1(H)(4);
e. meetings to discuss bargaining strategy, preliminary to collective bargaining negotiations, and bargaining sessions. NMSA 1978 § 10-15-1(H)(5);
f. discussions of purchases exceeding $2,500 that could be made only from one source, the meetings at which the contents of competitive sealed proposals solicited pursuant to procurement code are discussed during the contract negotiating process. Final action and approval shall be made in an Open Meeting. NMSA 1978 § 10-15-1(H)(6);
g. meetings subject to the attorney-client privilege pertaining to threatened or pending litigation. NMSA 1978 § 10-15-1(H)(7);
h. meetings to discuss the purchase acquisition or disposal of real property or water rights. NMSA 1978 § 10-15-1(H)(8);
i. meetings of certain public hospitals in which strategic and long-range business plans are discussed. NMSA 1978 § 10-15-1(H)(9); and
j. gaming control board meetings dealing with information that is confidential under the Gaming Control Act. NMSA 1978 § 10-15-1(H)(10); see also NMSA 1978 §§ 60-2E-1, et seq.
(For provisions for executive sessions as opposed to exemptions, see N.Y. Pub. Off. Law § 105(1) (McKinney 1988))
There are three categories of statutory exemptions. The OML provides as follows:
Nothing contained in this article shall be construed as extending the provisions hereof to:
(1) judicial or quasi-judicial proceedings, except proceedings of the public service commission and zoning boards of appeals;
(2) a. deliberations of political committees, conferences and caucuses.
b. for purposes of this section, the deliberations of political committees, conferences and caucuses means a private meeting of members of the senate or assembly of the state of New York, or of the legislative body of a county, city, town or village, who are members or adherents of the same political party, without regard to (i) the subject matter under discussion, including discussions of public business, (ii) the majority or minority status of such political committees, conferences and caucuses or (iii) whether such political committees, conferences and caucuses invite staff or guests to participate in their deliberations; and
(3) any matter made confidential by federal or state law.”
N.Y. Pub. Off. Law § 108 (McKinney 1988).
Judicial or quasi-judicial proceedings. Judicial or quasi-judicial proceedings are exempt from the OML. N.Y. Pub. Off. Law § 108(1) (McKinney 1988). Thus, when a public body acts in a judicial manner, exclusion of the public does not contravene the OML. Matter of Greece Town Mall, L.P. v New York State, 140 A.D.3d 1380, 1384, 34 N.Y.S.3d 663, 667 (3d Dep’t 2016) (finding meeting was judicial in nature and thus exempt from OML); Grossman v. Planning Bd., 126 A.D.2d 887, 890, 510 N.Y.S.2d 929 (3d Dep’t 1987) (town planning board did not have to admit public to a meeting where it considered whether or not to approve a development plan relative to the building of a proposed shopping center).
Action is judicial or quasi-judicial when there is an opportunity to be heard, evidence presented and a decision made. Johnson Newspaper Corp. v. Howland (Sup. Ct., Jefferson Cty., July 27, 1982).
The OML was amended in 1983 to make it clear that proceedings of zoning boards of appeals are not covered by the exemption and are subject to the statute. (1983 N.Y. Laws ch. 80, § 3). Prior to the 1983 amendment, a number of courts had held that certain proceedings of zoning boards were judicial or quasi-judicial in nature and, therefore, exempt from the OML. See, e.g., Concerned Citizens Against Crossgates v. Town of Guilderland Zoning Bd. of Appeals, 91 A.D.2d 763, 458 N.Y.S.2d 13 (3d Dep’t 1982); Orange Cty. Publications v. Council of Newburgh, 60 A.D.2d 409, 401 N.Y.S.2d 84 (2d Dep’t 1978), aff’d, 45 N.Y.2d 947, 383 N.E.2d 1157, 411 N.Y.S.2d 564 (1978).
Political committees, conferences and caucuses. The deliberations of political committees, conferences and caucuses are exempt from the law’s coverage. N.Y. Pub. Off. Law § 108(2)(a) (McKinney 1988). The “deliberations of political committees, conferences and caucuses” is defined to mean “a private meeting of members of the senate or assembly of the state of New York, or of the legislative body of a county, city, town or village, who are members or adherents of the same political party, without regard to (i) the subject matter under discussion, including discussions of public business, (ii) the majority or minority status of such political committees, conferences and caucuses or (iii) whether such political committees, conferences and caucuses invite staff or guests to participate in their deliberations.” N.Y. Pub. Off. Law § 108(2)(b) (McKinney 1988). However, where the matter at issue goes beyond a candid discussion and amounts to the conduct of public business this would violate the OML. Humphrey v. Posluszny, 175 A.D.2d 587, 573 N.Y.S.2d 790 (4th Dep’t 1991), appeal dismissed, 78 N.Y.2d 1072, 576 N.Y.S.2d 222, 582 N.E.2d 605. New Yorkers for Constitutional Freedoms v. New York State Senate, 98 A.D.3d 285, 296, 948 N.Y.S.2d 787, 796 (4th Dep’t 2012) (“Public Officers Law § 108 (2) (b) protects the discussion of public business at a political caucus, but not the conduct of public business at such a meeting.”).
The exemption for political caucuses may not apply where the entire legislature is of one party. Buffalo News v. City of Buffalo Common Council, 154 Misc.2d 400, 585 N.Y.S.2d 275 (Sup. Ct. 1992) (closure of meeting where entire legislature of one political party and stated purpose was to adopt plan addressing budget deficit was in violation of OML).
Prior to 1985, judicial decisions had held that this exemption applied only to discussions of political, as opposed to public, business. See, e.g., Britt v. Cty. of Niagara, 82 A.D.2d 65, 440 N.Y.S.2d 790 (4th Dep’t 1981); Sciolino v. Ryan, 103 Misc.2d 1021, 431 N.Y.S.2d 664 (Sup. Ct. 1980), aff’d, 81 A.D.2d 475, 440 N.Y.S.2d 795 (4th Dep’t 1981). In 1985, the Legislature amended the law to make it clear that the exemption was intended to apply to discussions of public as well as political business. 1985 N.Y. Laws ch. 135, § 2. The legislative declaration which prefaced the amendment stated that “[s]uch exemption was enacted in furtherance of the legislature’s recognition that the public interest is well served by the political party system in legislative bodies because such parties serve as mediating institutions between disparate interest groups and government and promote continuity, stability and orderliness in government. The performance of this function requires the private, candid exchange of ideas and points of view among members of each political party concerning the public business to come before legislative bodies.” See also Oneonta Star v. Schoharie Cty., 112 A.D.2d 622, 492 N.Y.S.2d 145 (3d Dep’t 1985).
State or federal confidentiality. Matters made confidential by federal or state law are not subject to the OML. N.Y. Pub. Off. Law § 108(3) (McKinney 1988). Shibley v. Miller, 212 A.D.2d 799, 623 N.Y.S.2d 283 (2d Dep’t 1995) (executive session to obtain advice of counsel does not require vacatur of subsequent determination); Young v. Bd. of Appeals, 194 A.D.2d 796, 599 N.Y.S.2d 632 (2d Dep’t 1993) (confidential communications between board and counsel were exempt from OML).
The permitted purposes for closing a session are:
i. Confidential and Privileged Information. A public body may close a meeting 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. G.S. § 143-318.11(a)(1).
ii. Honoraria. A public body may close a meeting to prevent the premature disclosure of an honorary degree, scholarship, prize or similar award. G.S. § 143-318.11(a)(2).
iii. Attorney-Client Privilege. A public body may close a session to consult with an attorney with regard to the handling or settlement of a claim, judicial action or administrative procedure. The terms of a settlement (other than of a medical malpractice case) approved in a closed session must be reported and entered into the minutes “as soon as possible within a reasonable time after the settlement is concluded.” The statute explicitly states that nothing in this section shall be construed to permit a public body to close a session simply because its attorney is present. The law also requires that every motion to close a meeting under this provision must reference the lawsuit and the parties about which or whom the public body expects to receive advice. G.S. § 143-318.11(a)(3).
A UNC Institute of Government Professor has cautioned public bodies against inclusion of third parties in closed sessions called under this provision: “Caution should be exercised, however, in allowing someone who is not an employee or official of the entity to attend a closed session held to protect the attorney-client privilege. The presence of an outsider, even someone such as a consultant to the governmental entity, might destroy the attorney-client privilege at the meeting and thus make the closed session invalid.” Open Meetings and Local Governments in North Carolina, (6th Ed. 2002).
This provision was at the heart of a lawsuit that went to the North Carolina Court of Appeals in 2000. Multimedia Pub. of North Carolina Inc. v. Henderson County, 136 N.C. App. 567, 525 S.E.2d 786 (2000). A county commission met in closed session with their attorney with regard to a proposed moratorium on construction of new racetracks; the commission came out of closed session and voted, without discussion, to pass the moratorium. The local newspaper objected to the closed session and requested copies of the minutes from the session. The trial court found nothing improper about the closed session and did not even address the paper’s request for minutes. The court found that the attorney-client exemption was narrower than the commission urged and broader than the newspaper urged. Additionally, the court wrote that “notwithstanding the countervailing policy favoring confidentiality between attorneys and clients,” exemptions to the Open Meetings Law must be construed narrowly. The “legislature has explicitly forbidden general policy matters from being discussed during closed sessions,” the court wrote, and quoting an Arizona case, “‘public bodies cannot simply delegate responsibilities to attorneys and then cloak negotiations and closed sessions in secrecy by having attorneys present.’“ The only specific guidance the opinion gave was by way of example: “Thus, discussions regarding the drafting, phrasing, scope, and meaning of proposed enactments would be permissible during a closed session. Discussions regarding their constitutionality and possible legal challenges would likewise be so included. But as soon as discussions move beyond legal technicalities and into the propriety and merits of proposed enactments, the legal justification for closing the session ends.”
Most importantly, the court addresses burden of proof. Recognizing that “requiring a plaintiff to plead and prove specific facts regarding alleged violations that are taking place in secret is a circular impossibility,” the Court placed the burden on the public body to establish the validity of the closure. The court wrote that in meeting its burden, “government bodies may not simply treat the words ‘attorney-client privilege’ or ‘legal advice’ as some talisman, the mere utterance of which magically casts a spell of secrecy over their meetings. After all, ‘the incantation of an attorney-client rationale is not an abracadabra to which this Court must defer judgment.’“ The public body must come forward with “objective indicia” that the exception is justified, not merely rely on assertions by the public body or its lawyers.
After remand and a second appeal, the Court of Appeals found the minutes were sufficient. Following the Multimedia case, Professor Lawrence wrote extensively about what outside parties might be present at a closed session: “If outside parties are present, the conversation is per se not confidential, and a closed session may not be held. Therefore, it is crucial that the public body and its attorney be careful about who is allowed in the room while the closed session is in progress.” David M. Lawrence, Closed Session Under the Attorney-Client Privilege, Local Gov’t Law Bulletin, April 2002, at 3-4.
iv. Industry/Business Expansion. A public body may discuss matters relating to the location or expansion of industries or business in the area in a closed session. Following the North Carolina Supreme Court’s decision in Maready v. City of Winston-Salem, 342 N.C. 708, 467 S.E.2d 615 (1996), the General Assembly amended the exemption to make clear that it allows discussion but not final decisions or final actions to be taken in closed session. The law now provides a public body may meet “to discuss matters relating to the location or expansion of industries or other businesses in the area served by the public body, including agreement on a tentative list of economic development incentives that may be offered by the public body in negotiations. The action approving the signing of an economic development contract or commitment, or the action authorizing the payment of economic development expenditures, shall be taken in an open session.” G.S. § 143-318.11(a)(4).
v. Real Estate Acquisitions and Employment Contracts. A public body may meet in a closed session only to establish (or instruct its agents concerning) its position with regard to negotiating (i) the price or other material terms of a real property acquisition or (ii) the compensation or other material terms of an employment contract. G.S. § 143-318.11(a)(5). A Court of Appeals decision held that only issues that will be negotiated related to real estate transactions may be withheld from public disclosure and that ordinarily the location, intended use and owner of land under consideration would not be exempt from disclosure. Boney Publishers, Inc. v. Burlington City Council, 151 N.C. App. 651, 656, 566 S.E.2d 701, 705 (2002).
vi. Specific personnel and employee issues. A public body may consider the qualifications or conditions of initial employment of or investigate complaints or charges against an individual public officer or employee at a closed session. Final action on these issues must be taken at an open meeting. General personnel issues may not be considered in a closed session, and a public body may only address filling a vacancy in the public body during an open meeting. G.S. § 143-318.11(a)(6). A Moore County court found that the Village of Whispering Pines Village Council had violated the law by discussing and coming to consensus in closed session about hiring a new chief of police without formally taking action in open session. Stout v. Village of Whispering Pines, Case No. 04 CVS 0494 (Moore Co. Sup. Ct. 2005).
vii. Criminal misconduct. A public body may plan, conduct, or receive reports regarding investigations of alleged criminal conduct. G.S. § 143-318.11(a)(7).
viii. Emergency response plans. A local board of education may formulate plans relating to emergency response to incidents of school violence. G.S. § 143-318.11(a)(8).
ix. Public safety. A public body may discuss and take action regarding plans to protect public safety as it relates to existing or potential terrorist activity and may receive briefings by staff members, legal counsel, or law enforcement or emergency service officials concerning actions taken or to be taken to respond to such activity. G.S. § 143-318.11(a)(9).
x. Law Enforcement Video. Beginning in 2016, a new statute governed video taken by law enforcement. G.S. § 132-1.4A. Public bodies are entitled to go into closed session to review such recordings.
Open records law exceptions generally provide corresponding exceptions in the open meetings law. The portion of a meeting during which closed or confidential records are discussed may be held in executive session.
Additionally, the following meetings are expressly exempted from the open meetings law (or the constitutional provision requiring open access to courts) by statute.
1. Trials of cases of scandalous or obscene natures, if the presiding judge or justice, in his discretion, excludes persons not necessarily present as parties or witnesses. N.D.C.C. § 27-01-02.
2. Juvenile court hearings, except hearings to declare a person in contempt of court. N.D.C.C. § 27-20-24.
3. Jury deliberations. N.D.C.C. § 12.1-09-05; § 29-22-01; § 29-22-0 2.
4. Preliminary hearings in criminal matters, where the magistrate holding the hearing, within his discretion and upon the request of the defendant, excludes every person except his clerk, the prosecutor and his counsel, the attorney general of the state, the state’s attorney of the country, the defendant and his counsel, such other person as he may designate, and the officer having the defendant in custody. N.D.C.C. § 29-07-14; see also Dickinson Newspapers Inc. v. Jorgensen, 338 N.W.2d 72 (N.D. 1983) (upholding constitutionality of this provision.)
5. Grand jury sessions. N.D.C.C. § 29-10.1-28; see also N.D.C.C. § 29-10.2-04(l) (state grand juries governed by same provisions as county grand juries.)
6. Court hearings determining incapacity (i.e., the necessity for a guardian), if the person alleged to be incapacitated or his counsel requests a closed hearing. N.D.C.C. § 30.1-28-03(7).
7. On request of a party and for good cause shown, parentage hearings. N.D.C.C. § 14-20-54.
8. Judicial hearings concerning a minor’s application to obtain an abortion without parental consent.. N.D.C.C. § 14-02.1-03.1(3).
9. Court proceedings or actions brought by women against persons who performed abortions without informed consent, where the court, sua sponte or upon motion, determines that the anonymity of the women should be preserved. N.D.C.C. § 14-02.1-03.3.
10. Court hearings concerning the state health officer’s legal action to enjoin a person with human immunodeficiency virus infection from continuing to engage in behavior that presents an imminent danger to the public health. N.D.C.C. § 23-07.4-03.
11. Adoption proceedings. N.D.C.C. § 14-15-16.
12. Criminal proceedings (including depositions and other discovery proceedings) where the defendant is charged with a sex offense involving a child, when the court, upon the motion of the prosecuting attorney and following a hearing, has determined that the testimony of a child may be closed to the public to protect the child’s reputation, after considering the following factors: (1) The nature and seriousness of the offense; (2) The age of the child; (3) The extent to which the size of the community would preclude the anonymity of the victim; (4) The likelihood of public opprobrium due to the status of the victim; (5) Whether the prosecution has demonstrated a substantial probability that the identity of the witness would otherwise be disclosed to the public during the proceeding and that the disclosure would cause serious harm to the witness; (6) Whether the witness has disclosed information concerning the case to the public through press conferences, public meetings, or other means; and (7) Any other factor the court may find necessary to protect the interests of justice. N.D.C.C. §§ 12.1-35-05.2, 12.1-35-05.3.
13. A governing body may hold an executive session to discuss negotiating strategy or provide negotiating instructions to its attorney or other negotiator regarding litigation, adversarial administrative proceedings, or contracts, which are currently being negotiated or for which negotiation is reasonably likely to occur in the immediate future. N.D.C.C. 44-04-19.1(9). The executive session may be held only when an open meeting would have an adverse fiscal effect on the bargaining or litigating position of the public entity. N.D.C.C. 44-04-19.1(9).
14. Hearings conducted by the department of human services, unless both the claimant and the opposing principal agree to the presence of unauthorized persons. N.D. Admin. Code § 75-01-03-15.
15. Legislative investigative committee hearings, if a closed meeting is requested by an investigated individual and a majority of the committee consents. N.D.C.C. § 54-03.2-10.In any event, no hearing, or part thereof, can be televised, filmed, or broadcast, except upon approval by a majority of the entire committee. N.D.C.C. § 54-03.2-10.
16. Executive sessions called by the state board of higher education to appoint or remove college or university employees, unless the person or persons involved request that the meeting be open to other persons or the public. N.D.C.C. § 15-10-17(l).
17. Board meetings concerning the nonrenewal, dismissal for cause, or suspension of a teacher, principal, superintendent, or directors may be closed. N.D.C.C. §§ 15.1-14-06, 15.1-14-10, 15.1-14-16, 15.1-14-20, 15.1-14-26, 15.1-14-30, 15.1-15-02, 15.1-15-06, 15.1-15-08, 15.1-15-10.
18. Proceedings concerning an attorney general’s or state’s attorney’s investigation of alleged violations of the financial interest statement law, until a determination has been reached by the investigating officer that enough incriminating evidence exists to bring an action and such action is commenced in the appropriate district court. N.D.C.C. § 16.1-09-06.
19. Meetings of the child fatality review panel. N.D.C.C. § 50-25.1-04.5.
20. All agricultural mediation service meetings and meetings involving the credit review board, staff negotiators, or mediators wherein the finances of specific farmers, creditors, and others are discussed. N.D.C.C. § 6-09.10-10.
21. The portion of a meeting during which an attorney consultation (i.e., any discussion between a governing body and its attorney in instances in which the governing body seeks or receives the attorney’s advice regarding and in anticipation of reasonably predictable civil or criminal litigation or adversarial administrative proceedings or concerning pending civil or criminal litigation or pending adversarial administrative proceedings) occurs may be closed. N.D.C.C. § 44-04-19.1(2) and (5).
22. The portion of a meeting held to discuss or consider information pertaining to a prospective location of a business or industry, including the identity, nature, and location of the business or industry, when no previous public disclosure has been made by the business or industry of the interest or intent of the business or industry to locate in, relocate within, or expand within this state, or partner with a public entity to conduct research or to license a discovery or innovation. N.D.C.C. § 44-04-18.4. This exemption does not include records pertaining to the application for permits or licenses necessary to do business or to expand business operations within this state, except as otherwise provided by law. N.D.C.C. § 44-04-18.4.
23. The portion of a meeting held to discuss or consider information pertaining to trade secrets and proprietary, commercial, or financial information received from a person who is interested in or is applying for or receiving financing, technical assistance, or other forms of business assistance. N.D.C.C. § 44-04-18.4.
24. The portions of social work examiners board meetings where client and juvenile testimony or records are taken. N.D.C.C. § 43-41-10(7).
25. The medical portion of a workers’ compensation hearing when Workforce Safety and Insurance grants a claimant’s request to close the medical portion of a hearing. N.D.C.C. § 65-05-32(6).
26. A caucus of members of either house of the legislative assembly may meet in an executive session that is not subject to N.D.C.C. § 44-04-19.2 if the meeting is not held on public property. N.D.C.C. § 44-04-19.3.
Grand juries are exempt from all parts of the statute and at all times. Ohio Rev. Code § 121.22(D)(1).
Audit conferences conducted by the state auditor or an independent CPA with officials of the public office that is the subject of the audit are exempt from the statute. Ohio Rev. Code § 121.22(D)(2).
The adult parole authority is exempt from the statute when its hearings are conducted at a penal institution for the sole purpose of interviewing inmates to determine parole or pardon. Ohio Rev. Code § 121.22(D)(3).
The Ohio organized crime investigations commission is exempt from the statute. Ohio Rev. Code § 121.22(D)(4).
Meetings held by a child fatality review board. Ohio Rev. Code § 121.22(D)(5).
The state medical board, board of nursing, board of pharmacy, and chiropractic board are exempt from the statute when determining whether to suspend a certificate without a prior hearing. Ohio Rev. Code § 121.22(D)(6) - (9).
The executive committee of the emergency response commission is exempt from the statute when determining whether to issue an enforcement order or request enforcement litigation. Ohio Rev. Code § 121.22(D)(10).
The board of directors or any committee of the nonprofit corporation JobsOhio or any of its subsidiaries are exempt. Ohio Rev. Code §§ 121.22(D)(11), 187.01.
The following state agencies are exempt from the statute when meeting to consider granting financial assistance for businesses when all members of the board vote unanimously to close the meeting during consideration of financial and business information confidentially received by the board from the applicant for assistance:
- state controlling board;
- state development financing advisory council;
- state industrial technology and enterprise advisory council;
- state tax credit authority;
- state minority development financing advisory board.
Ohio Rev. Code § 121.22(E).
Municipalities which have adopted home rule charters may be exempt from the statute, at least where the charter conflicts directly with the statute. Hills & Dales, Inc, v. City of Wooster, 4 Ohio App. 3d 240, 448 N.E.2d 163 (1982); City Comm'n of Piqua v. Piqua Daily Call, 64 Ohio App. 2d 222, 412 N.E.2d 1331 (1979). But, many home rule cities have charter provisions or ordinances providing for open meetings or adopting the provisions of Ohio Rev. Code § 121.22. State ex rel. Cincinnati Post v. City of Cincinnati, 76 Ohio St. 3d 540, 668 N.E.2d 903 (1996); State ex rel. Inskeep v. Staten, 74 Ohio St. 3d 676, 660 N.E.2d 1207 (1996); State ex rel. Fenley v. Kyger, 72 Ohio St. 3d 164, 648 N.E.2d 493 (1995); State ex rel. Plain Dealer Publishing Co. v. Barnes, 38 Ohio St. 3d 165, 527 N.E.2d 807 (1988).
Public bodies may discuss appointments, hiring, employment, promotion, demotion, disciplining or resignation of a salaried public official or employee in a closed meeting. 25 O.S. § 307.B.1. The term "employment includes continued employment and the conditions of employment such as place of employment, salary, duties to be performed and evaluations." Isch v. Oklahoma Independent School District No. I-89, 1998 OK CIV APP 90, 963 P.2d 18. However, a public body cannot go into executive session for discussion of a job opening for a public officer or employee when no particular individual is to be discussed. 2006 OK AG 17. Discussions to consider awarding a contract for professional services when the recipient will be an independent contractor, rather than a public officer or employee of the public body, is also not a proper subject for an executive session. 2005 OK AG 29. School boards can discuss matters relating to volunteers as well as employees. 1996 OK AG 40.
Public bodies may discuss negotiations concerning employees and representatives of employer groups. 25 O.S. § 307.B.2.
Public bodies may discuss the purchase or appraisal of real property. 25 O.S. § 307.B.3. However, the public body is restricted as to the persons who may be present in such executive sessions. 25 O.S. § 307.D. See Lafalier v. The Lead-Impacted Communities Relocation Assistance Trust, 2010 OK 48, 237 P.3d 181 (Trust found to have violated Open Meet Act by allowing persons not authorized under 307.D. to attend executive session wherein the appraisal and purchase of real property was discussed.) Further, the Attorney General has determined that section 307.B.3 authorizes a public body to meet in executive session to discuss the purchase or appraisal of real property, but contains no authority allowing a public body to meet in executive session to discuss the sale of real property. 2007 OK AG 32. To address, in part, these decisions, the Legislature amended 25 O.S. § 307.D to authorize persons who are operating under an existing agreement to represent the public body in a land transaction.
A public body may meet with its attorney concerning an investigation, claim, or action if disclosure of the information would seriously impair the public body's ability to process the claim or conduct an investigation, litigation or proceeding in the public interest. 25 O.S. § 307.B.4. See 2005 OK AG 29 (“A "pending" claim can refer to litigation or an administrative action which either presently exists or is merely potential or anticipated.”)
A board of education may close a hearing discussing the expulsion or suspension of a student when a closing is requested by the student, his parents, attorney or legal guardian. The board may also discuss negotiations concerning employees and representative employee groups and the purchase or appraisal of real property. 25 O.S. § 307.B.5.
Public bodies may discuss matters involving a specific handicapped child. 25 O.S. § 307.B.6.
Public bodies may discuss matters where disclosure of information would violate confidentiality requirements of state or federal law. 25 O.S. § 307.B.7.
Public bodies may engage in deliberations or render a final or intermediate decision in an individual proceeding pursuant to Article II of the Oklahoma Administrative Procedures Act. 25 O.S. § 307.B.8.
A public body may hold executive sessions to discuss investigations into plans, schemes or acts of terrorism, assessments of vulnerability of government facilities to acts of terrorism and/or discussion of plans to prevent or respond to acts of terrorism. 25 O.S. § 307.B.9.
The State Banking Board may hold executive sessions to grant an emergency certificate of authority or a certificate to maintain a branch to a state bank assuming deposit liability of another bank. 25 O.S. § 307.C.1.
The Oklahoma Industrial Finance Authority may hold executive sessions when the matter to be discussed involves trade secrets. 25 O.S. § 307.C.2.
The Oklahoma Development and Finance Authority may hold executive sessions when the matter to be discussed concerns trade secrets. 25 O.S. § 307.C.3.
The Oklahoma Center for the Advancement of Science and Technology may hold executive sessions when the item to be discussed concerns trade secrets. 25 O.S. § 307.C.4.
The Oklahoma Savings and Loan Board may hold an executive session for the purpose of involuntary liquidation of a state-chartered savings and loan association upon the recommendation of the federal savings and loan corporation. 25 O.S. § 307.C.5.
The Oklahoma Health Research Committee may hold executive sessions to discuss matters pertaining to research and development of products, if public disclosure would interfere with the development of patents, copyrights, products or services. 25 O.S. § 307.C.6.
A review committee created under the Local Development Act may hold closed sessions. 25 O.S. § 307.C.7.
The Child Death Review Board may close sessions for purposes of receiving and conferring on matters relative to materials declared confidential by law. 25 O.S. § 307.C.8.
The Domestic Violence Fatality Review Board may meet in executive session to discuss individual cases of a domestic violence death. 25 O.S. § 307.C.9.
Nonprofit entities supported in whole or in part by public funds or entrusted with the expenditure of public funds for purposes pertaining to economic development may close sessions if public disclosure would interfere with development of business or violate confidentiality of the business. 25 O.S. § 307.C.10.
Oklahoma Indigent Defense System Board for purposes of strategies when negotiating contracts to provide legal representation to criminal defendants and indigent juveniles. 25 O.S. § 307.C.11.
The Oklahoma Investment Committee for purposes of discussing application and confidential materials pursuant to terms of the Oklahoma Quality Investment Act. 25 O.S. § 307.C.12
Other than the exceptions to the coverage of the Public Meetings Law under ORS 192.690, to which none of the requirements of the Public Meetings Law apply, the following are the exclusive “exemptions” to the Public Meetings Law pursuant to ORS 192.660(1). Technically, these situations are not exemptions from the process and procedures of the law but, rather, justifications permitting the use of an executive session for the conduct of the public business. These “exemptions” are:
(a) Consideration of employment of a public officer, employee, staff member or agent. This exemption does not apply to the filling of a vacancy in an elective office; the filling of a vacancy on any public committee, commission or advisory group; the consideration of general employment policies; or the employment of the chief executive officer, other public officers, employees and staff members of a public body, unless the vacancy in the position has been advertised and regular procedures for hiring have been adopted by the public body with an opportunity for public participation in the filling of such position. All standards, criteria and policy directives used in hiring a chief executive officer must be adopted by the governing body in open session with an opportunity for public comment. ORS 192.660(1)(a).
(b) Consideration of the dismissal or disciplining of, or complaints or charges against, a public officer, employee, staff member or individual agent unless the subject of the disciplinary proceeding requests an open hearing. ORS 192.660(1)(b).
(c) Consideration of matters pertaining to medical staff functions of a public hospital including clinical committees, peer review committees, and other medical competency matters. ORS 192.660(1)(c).
(d) To conduct deliberations with the persons designated by the governing body to carry on labor negotiations. ORS 192.660(1)(d). This executive session provision applies to discussions between the governing body and its labor negotiator. It is important to note that where a retained negotiator is employed by the governing body, as opposed to delegating such functions to a subcommittee of the governing body, the retained negotiator is neither a public body nor a governing body for purpose of the coverage of the Public Meetings Law. Thus, the negotiator’s activities are outside coverage of the law.
(e) To conduct deliberations with persons designated by the governing body to negotiate real property transactions. ORS 192.660(1)(e). This is very similar to the exemption under ORS 192.660(1)(d).
(f) To consider information or records that are exempt by law from public inspection. ORS 192.660(1)(f). This provision allows the governing body to discuss records which are exempt from disclosure under the Open Records Law as well as under other statutes. However, merely because certain records are discussed in executive session does not mean that those records are automatically exempt from disclosure. While the governing body may urge that executive session matters are not subject to disclosure, this only applies to matters which are properly the subject of an executive session. Any records that are discussed may be subject to disclosure if they are not independently subject to a records exemption.
(g) To consider preliminary negotiations involving trade or commerce in which the governing body is in competition with governing bodies in other states or nations. ORS 192.660(1)(g). The key word in this subsection is “preliminary” negotiations.
(h) To consult with counsel concerning the legal rights and duties of a public body with regard to current litigation or litigation likely to be filed. ORS 192.660(1)(h). This executive session provision is perhaps the most hotly disputed in the Open Meetings statute. The definition of litigation “likely to be filed” is often a subjective determination by the public body (or more likely, its legal counsel).
(i) To review and evaluate the employment-related performance of public employees. ORS 192.660(1)(i). This provision has two important limitations to it. First, the employee has the absolute right to have an open hearing. Second, the executive session may not be used for any general evaluation of goals or objectives or generalized personnel policies.
(j) To carry on negotiations for public investments, provided the other party to the negotiations is a private person or business. ORS 192.660(1)(j).
(k) To consider matters relating to school safety or a plan that responds to safety threats made toward a school.
(l) To consider information obtained as part of an investigation of licensee or applicant conduct, if the governing body is a health professional regulatory board. ORS 192.660(1)(k).
(m) To consider information obtained as part of an investigation of registrant or applicant conduct, if the governing body is the State Landscape Architect Board. ORS 192.660(1)(L).
(n) To discuss information about review or approval of programs relating to the security of energy, radioactive material, hazardous substances, sewage, water, telecommunication systems and data transmissions as described in the statute. ORS 192.660(1)(m).
Labor negotiations must be conducted in open session unless both sides request executive sessions. Subsequent closed negotiating sessions can continue without further public notice. ORS 192.660(3). Labor negotiations conducted by an individual negotiator rather than members of the governing body are not subject to the Public Meetings Law. Southwestern Oregon Publishing Co. v. Southwest Oregon Community College District, 28 Or. App. 383, 559 P.2d 1289 (1977). However, the Attorney General has stated in 42 Op. Atty. Gen. 362 (1982), that if labor negotiations are not carried on with a recognized bargaining representative, “negotiations” do not occur and an executive session justification does not exist.
a. Executive sessions.
Executive sessions can be held for any of the following six purposes:
1. to discuss personnel matters. See Mirror Printing Co., Inc., v. Altoona Area Sch. Bd., 609 A.2d 917 (Pa. Commw. Ct. 1992) (affirming decision that the Sunshine Act did not require disclosure of the basis of a settlement agreement regarding disciplinary action against a teacher that was discussed and negotiated by school board during an executive session but later approved of during an open meeting); see also Bianco v. Robinson Twp., 556 A.2d 993 (Pa. Commw. Ct. 1989) (affirming decision that Sunshine Act was satisfied where promotion of police officers, initially decided by majority of commissioners in a private meeting, was later adopted by commissioners at public session).
2. to hold sessions relating to collective bargaining or labor negotiations. In Lawrence Cty. v. Brenner, 582 A.2d 79 (Pa. Commw. Ct. 1990), appeal denied, 593 A.2d 426 (Pa. 1991), the Commonwealth Court reversed two Common Pleas orders involving Lawrence County’s plan to end operations at and sell a nursing home. The county made its decision with respect to the nursing home in executive session, during stalled collective-bargaining sessions. The county, however, would eventually adopt the decision to close and sell the nursing home as a resolution during open meetings. In reversing the Court of Common Pleas, the Commonwealth Court explained that the decision to close and sell the nursing home related to the collective-bargaining negotiation process because it was a matter which affected the interest of the staff at the nursing home so as to obligate the county commissioners to discuss in its negotiations with the staff’s bargaining representative. Even so, any violation of the Sunshine Act would have been cured by the subsequent ratification of the county’s decision during public meetings. See also St. Clair Area Sch. Dist. v. Saint Clair Educ. Ass’n, 552 A.2d 1133 (Pa. Commw. Ct. 1988), aff’d, 579 A.2d 879 (Pa. 1990) (affirming decision that school board committed an unfair labor practice by negotiating a collective-bargaining agreement on the courthouse steps in bad faith when the board later failed to carry enough votes to adopt the agreement during a public meeting).
3. to consider the purchase or lease of real property up to the time an option to purchase or lease is obtained or up to the time an agreement to purchase or lease is obtained.
4. to consult with an attorney or professional advisor regarding information or strategy in connection with litigation or with issues on which identifiable complaints are expected to be filed. See Trib Total Media, Inc. v. Highlands Sch. Dist., 3 A.3d 695 (Pa. Commw. Ct. 2010) (reversing decision that owners and representatives of a shopping center were properly admitted to an executive session to discuss a property tax assessment appeal with the school board and the board’s solicitor); see also Keenheel v. Commonwealth, 579 A.2d 1358 (Pa. Commw. Ct. 1990) (denying the petitioner’s cross-motion for summary judgment because, in relevant part, he failed to claim any injury as a result of the Pennsylvania Securities Commission’s Sunshine Act violation of discussing and approving a settlement agreement in executive session).
5. to discuss agency business that is otherwise privileged or protected by law, including matters related to investigations of possible legal violations and quasi-judicial deliberations. See, e.g., Riverwalk Casino, L.P. v. Pa. Gaming Control Bd., 926 A.2d 926 (Pa. 2007) (concluding that Pennsylvania Gaming Control Board’s executive-session discussions about applications for slot machine licenses, before public vote on applications, fell within the exception to the open-meeting requirement for quasi-judicial deliberations); Kennedy v. Upper Milford Twp. Zoning Hearing Bd., 834 A.2d 1104 (Pa. 2003) (reversing Commonwealth Court decision that zoning hearing board, which the Supreme Court defined as a quasi-judicial agency, was not permitted to take a recess to deliberate in private before voting on application concerning the height of a radio-communications tower); see also In re Blystone, 600 A.2d 672 (Pa. Commw. Ct. 1991), appeal denied, 626 A.2d 1159 (Pa. 1993) (rejecting argument that Sunshine Act was violated where commissioners did not, during an open meeting, vote on or adopt charges being investigated by district attorney when deciding to demote borough police chief).
6. for certain educational agencies, to discuss matters of academic admissions or standings.
7. to discuss, plan, or review matters and records necessary for emergency preparedness, public safety, and security of property.
Official action on any of the above discussions must be taken in public. 65 Pa. C.S.A. § 708.
“An agency is authorized to participate in a conference which need not be open to the public. Deliberation of agency business may not occur at a conference.” 65 Pa. C.S.A. § 707(b). Conferences are defined as any “training program or seminar, or any session arranged by State or Federal agencies for local agencies, organized and conducted for the sole purpose of providing information to agency members on matters directly related to their official responsibilities.” 65 Pa. C.S.A. § 703. The scope of this exception is unclear. In Times Leader v. Dallas Sch. Dist., 49 D. & C. 3d 329 (Ct. Com. Pl. 1988) (Luzerne Cty.), the court awarded a preliminary injunction to the plaintiffs, enjoining the school district from holding a non-public informational meeting on a commissioned report concerning school overcrowding. The court concluded that the meeting was not a “conference” under the Act.
c. Working sessions.
Boards of auditors may conduct closed sessions to examine or discuss accounts or records, so long as official action is conducted publicly. 65 Pa. C.S.A. § 707(c). No cases discuss this exception.
d. Administrative action.
“Administrative action” is “the execution of policies relating to persons or things as previously authorized or required by official action of the agency adopted at an open meeting of the agency.” See 65 Pa. C.S.A. § 703 (emphasis added). For example, the revision of expense guidelines in accordance with a prior resolution constitutes ministerial action that does not violate the Sunshine Act. See Common Cause/Pennsylvania v. Itkin, 635 A.2d 1113 (Pa. Commw. Ct. 1993). “Administrative action” does not encompass “the deliberation of agency business.” See 65 Pa. C.S.A. § 703.
Exemption (1): Any discussions of the job performance, character, physical or mental health of a person or persons provided that such person or persons affected may require that such discussion be held at an open meeting. According to the Attorney General, Exemption (1) does not authorize completely secret interviews of candidates for public positions. Exemption (1) covers only those portions of the interview dealing with an applicant's job performance, health, or character, which may be conducted in a closed session if the person affected does not object to the session being closed. See Op. Att’y Gen. No. 89-04-24 (April 10, 1989), 1989 WL 421847.
Exemption (2): Sessions pertaining to collective bargaining or litigation, or work sessions pertaining to the same. The Rhode Island Superior Court, concurring with prior Attorney General Opinions, has interpreted exemption (2) to include not only instances in which a lawsuit has already been filed but also matters concerning “threatened litigation or imminent litigation that is reasonably anticipated by the public body.” Phoenix-Times Publishing Co. v. Barrington School Committee, No. PC-2009-4665, 2010 R.I. Super. LEXIS 170 (R.I. Super. Nov. 15, 2010).
The exemption only applies if the public interest will be affected by full disclosure of procedures and defenses in an adversarial situation, and the determining factor is whether advance public information would be detrimental to the public's interest. See Op. Att’y Gen. No. 90-05-17 (June 18, 1990), 1990 WL 357449.
Exemption (3): Discussion regarding the matter of security including but not limited to the deployment of security personnel or devices.
Exemption (4): Any investigative proceedings regarding allegations of misconduct, either civil or criminal.
Exemption (5): Any discussions or considerations related to the acquisition or lease of real property for public purposes, or of the disposition of publicly held property wherein advanced public information would be detrimental to the interest of the public.
Exemption (6): Any discussions related to or concerning a prospective-business or industry locating in the state of Rhode Island when an open meeting would have a detrimental effect on the interest of the public.
Exemption (7): A matter related to the question of the investment of public funds where the premature disclosure would adversely affect the public interest. Public funds shall include any investment plan or matter related thereto, including but not limited to state lottery plans for new promotions.
Exemption (8): Any executive session of a local school committee exclusively for the purposes (i) of conducting student disciplinary hearings or (ii) of reviewing other matters which relate to the privacy of students and their records, provided, however, that any affected student may require that the discussion be held in an open meeting.
Exemption (9): Any hearings on, or discussions of, a grievance filed pursuant to a collective bargaining agreement.
Exemption (10): Any discussion of the personal finances of a prospective donor to a library.
a. Discussion of employment, appointment, compensation, promotion, demotion, discipline, or release of an employee, a student, or a person regulated by a public body. S.C. Code Ann. § 30-4-70(a)(1).
b. Discussion of negotiations incident to proposed contractual arrangements and proposed sale and purchase of property, receipt of legal advice and the position of the agency in an adversary situation involving the assertion of a claim against the agency. S.C. Code Ann. § 30-4-70(a)(2).
c. Discussion regarding the development of security personnel or devices. S.C. Code Ann. § 30-4-70(a)(3).
d. Investigative proceedings regarding allegations of criminal misconduct. S.C. Code Ann. § 30-4-70(a)(4).
e. Discussion of matters relating to the proposed location, expansion, or the provision of services encouraging location or expansion of industry or business in the area served by the public body. S.C. Code Ann. § 30-4-70(a)(5).
f. The Retirement System Investment Commission. S.C. Code Ann. § 30-4-70(a)(6).
The Act allows certain meetings subject to the Act to protect the confidentiality of proprietary information or trade secrets that relate to coverage of government employees under the Tennessee consolidated retirement system. T.C.A. § 8-44-102(b)(1)(E). Additionally, there are several other express exemptions contained in the Tennessee Code. Staff meetings of the Tennessee Industrial Finance Corporation held to consider applications for financing are not subject to the Act. T.C.A. § 4-17-408 (e). Under the Hazardous Chemical Right To Know Law, administrative hearings that involve trade secrets can be closed. T.C.A. § 50-3-2013(c)(1). Screening panels of the Board of Chiropractic Examiners utilized to investigate, mediate or arbitrate complaints are not subject to the Act. T.C.A. § 63-4-115(g). Similar screening panels of the state Board of Nursing are not subject to the Act. T.C.A. § 63-7-115(b)(3).
The exception for consulting with an attorney permits a governmental body and its attorney to consult in private only when the body seeks the attorney's advice with respect to pending or contemplated litigation, settlement offers, or matters where the duty of the attorney to the governmental body under the Texas Rules of Disciplinary Conduct clearly conflicts with the Act. Id. § 551.071. Section 551.071 incorporates the attorney-client privilege. Olympic Waste Servs. v. City of Grand Saline, 204 S.W.3d 496, 502 (Tex. App.—Tyler 2006, no pet.); see also Op. Tex. Att’y Gen. No. JC –0233 (2000). A consultation under this provision is still a meeting, and subject to the notice requirements of the Act. Op. Tex. Att’y Gen. No. JC-0057 (1999). While the Act permits consultation by a governmental body with its attorney in a closed meeting to receive advice on the legal issues raised by a proposed contract, the Act does not authorize discussion of “the merits of a proposed contract, financial considerations, or other non-legal matters related to the contract merely because its attorney is present.” Op. Tex. Att’y Gen. No. JC-0233 (2000).
The real property exception permits closed meetings to discuss "the purchase, exchange, lease, or value of real property if deliberation in an open meeting would have a detrimental effect on the position of the governmental body in negotiations with a third person." Tex. Gov’t Code§ 551.072; Save Our Springs Alliance, 973 S.W.2d at 382
The personnel matters exception permits a governmental body to hold a closed meeting "to deliberate the appointment, employment, evaluation, reassignment, duties, discipline, or dismissal of a public officer or employee" or "to hear a complaint or charge against an officer or employee" unless the officer or employee requests a public hearing. Tex. Gov’t Code§ 551.074. A 1997 amendment to the Act provides a similar exception for meetings of the commissioners court of a county "to deliberate the appointment, employment, evaluation, reassignment, duties, discipline, or dismissal of a member of an advisory body" or "to hear a complaint or charge against a member of an advisory body" unless the individual who is the subject of the deliberation or hearing requests a public hearing. Id. § 551.0745.
The prospective gift exception permits closed meetings "to deliberate a negotiated contract for a prospective gift or donation to the state or the governmental body if deliberation in an open meeting would have a detrimental effect on the position of the governmental body in negotiations with a third person." Id. § 551.073.
The Texas growth fund exception permits closed meetings to confer with one or more employees of the Texas growth fund or with a third party in an open meeting if the only purpose of the conference is to receive information or to question employees or third parties relating to investment in certain business entities the disclosure of which would give advantage to a competitor. Id. § 551.075. Only meetings relating to either investments in private business entities or investments in publicly traded business entities that need not be registered (under the Securities Exchange Act of 1934) may be closed under this section.
The security exception permits a governmental body to deliberate in private about "deployment, or specific occasions for implementation, of security personnel or devices." Id. § 551.076.
School boards have three additional exceptions they can use to close portions of their meetings. Section 551.082 permits closed sessions when school boards deliberate in cases "involving discipline of a public school child," unless an open hearing is requested in writing by a parent or guardian of the child. That section also allows a school board to close portions of its meetings to deliberate in cases "in which a complaint or charge is brought against an employee of the school district by another employee and the complaint or charge directly results in a need for a hearing," unless the employee made the subject of the complaint or charge requests an open hearing in writing. Id. § 551.082. Section 551.0821 permits a closed meeting "to deliberate a matter regarding a public school student if personally identifiable information about the student will necessarily be revealed by the deliberation." This exception does not apply if an open meeting about the matter is requested in writing by a parent or guardian or by the student if the student has reached the age of 18. Id. § 551.0821(c). Section 551.083 permits a school board operating under a consultation agreement authorized by Section 13.901 of the Texas Education Code (repealed in 1993) to deliberate in private regarding "the standards, guidelines, terms, or conditions the board will follow, or instruct its representatives to follow, in consultation with a representative of an employee group."
A medical board or committee is not required to hold open meetings "to deliberate the medical or psychiatric records of an individual applicant for a disability benefit from a public retirement system." Id. § 551.078. Section 551.0785 allows a governmental body that administers a public insurance, health, or retirement plan to conduct a closed meeting to deliberate records or information from the medical or psychiatric records of an individual applicant for a benefit from the plan. In addition, the governing board of a municipal hospital, municipal hospital authority, hospital district created under general or special law, or nonprofit health maintenance organization created under Section 534.101 of the Health and Safety Code is not required to conduct open meetings to deliberate "pricing or financial planning information relating to a bid or negotiation for the arrangement or provision of services or product lines to another person if disclosure of the information would give advantage to competitors of the hospital, hospital district, or nonprofit health maintenance organization" or "information relating to a proposed new service or product line of the hospital, hospital district, or nonprofit health maintenance organization before publicly announcing the service or product line." Id. § 551.085.
The State Board of Insurance is not required to have open meetings when considering the solvency of people over whom the agency has regulatory authority. Id. § 551.079. The Board of Pardons and Paroles is not required to have an open session when interviewing or counseling inmates of a facility of the institutional division of the Texas Department of Criminal Justice. Id. § 551.080. The Credit Union Commission, The Finance Commission of Texas, and the State Banking Board are not required by the Act to deliberate in the open about matters "made confidential by law." Id. §§ 551.081; .0811; .0812. Finally, the Texas Building and Procurement Commission may conduct a closed meeting under certain circumstances. Id. § 551.0726.
Section 551.086 permits certain power utilities to meet in private to deliberate, vote, or take final action on any competitive matter, defined as a utility related matter that the public power utility governing body in good faith determines by a vote is related to the public power utility's competitive activity, including commercial information, and, if disclosed, would give advantage to competitors and prospective competitors. This provision expressly provides 13 categories of information that may not be considered "competitive matter" under the section. Id. § 551.086.
Section 551.087 allows for closed meetings where a governmental body discusses or deliberates regarding commercial or financial information received from certain business prospects or to deliberate the offer of a financial or other incentives to such a prospect.
Deliberations about test items or information related to them may be closed in limited situations. Id. § 551.088.
The governing board of the Department of Information Resources is not required to conduct an open meeting to deliberate: (1) security assessments or deployments relating to information resources technology; (2) network security information as described by Section 2059.055(b); or (3) the deployment, or specific occasions for implementation, of security personnel, critical infrastructure, or security devices. Id. § 551.089.
A closed meeting may be held for any of the following purposes:
a. discussion of an individual’s character, professional competence, or physical or mental health;
b. strategy sessions to discuss collective bargaining;
c. strategy sessions to discuss pending or reasonably imminent litigation;
d. strategy sessions to discuss purchase, exchange, or lease of real property if public discussion would disclose the appraisal or estimated value of the property under consideration or prevent the public body from completing the transaction on best possible terms;
e. strategy sessions to discuss the sale of real property if public discussion would disclose the appraisal or estimated value of the property under consideration or prevent the public body from completing the transaction on best possible terms, as long as the body has previously given notice of the sale and the terms of the sale are disclosed publicly before approval;
f. discussion regarding deployment of security personnel, devices, or systems;
g. investigative proceedings regarding criminal misconduct allegations.
h. business conducted by the Independent Legislative Ethics Commission regarding the receipt or review of ethics complaints;
i. a purpose of an ethics committee of the Legislature permitted under Utah Code section 52-4-204(1)(a)(iii)(C);
j. as relates to the Independent Executive Branch Ethics Commission created in Section 63A-14-202, conducting business relating to an ethics complaint;
k. discussion of commercial information by a county legislative body; or
l. as relates to the Utah Higher Education Assistance Authority and its appointed board of directors, discussing fiduciary or commercial information as defined in Section 53B-12-102;
m. deliberations, not including any information gathering activities, of a public body acting in the capacity of: (i) an evaluation committee under Title 63G, Chapter 6a, Utah Procurement Code, during the process of evaluating responses to a solicitation, as defined in Section 63G-6a-103; (ii) a protest officer, defined in Section 63G-6a-103, during the process of making a decision on a protest under Title 63G, Chapter 6a, Part 16, Controversies and Protests; or (iii) a procurement appeals panel under Title 63G, Chapter 6a, Utah Procurement Code, during the process of deciding an appeal under Title 63G, Chapter 6a, Part 17, Procurement Appeals Board;
n. the purpose of considering information that is designated as a trade secret if the public body’s consideration is necessary in order to properly conduct procurement;
o. the purpose of discussing information provided to the public body during the procurement process if certain circumstances are met; or
p. a purpose for which a meeting must be closed under Utah Code section 52-4-202(2).
Utah Code § 52-4-205(1).
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 only other exemptions are the topics that are authorized to be addressed in executive session. 1 V.S.A. § 313(a).
a. Personnel Matters: Discussion of candidates for employment; assignment, performance, salaries, disciplining or resignation of specific public officers; and evaluation of performance of departments or schools of public institutions of higher education discussing the performance or specific individuals, discipline and job performance. Also provides that a teacher, on written request, may be present in closed session where discussion involves the teacher's disciplining of a student and student is also present. This exclusion may not be used to discuss compensation matters that affect the membership of the public body collectively. Va. Code Ann. § 2.2-3711.A.1.
b. Admission and Discipline Matters: Discussion concerning admission or discipline, or that would require the disclosure of information in a scholastic record, of student(s), of any public institution of higher education or any state school system. Va. Code Ann. § 2.2-3711.A.2.
c. Real Property: Discussion of the acquisition of real property for public purpose, or of the disposition of publicly held property, where public disclosure would adversely affect the bargaining position of the public body. Va. Code Ann. § 2.2-3711.A.3.
d. Privacy of Individuals: Protection of the privacy of individuals in personal matters not related to public business. Va. Code Ann. § 2.2-3711.A.4.
e. Prospective Business or Industry Expansion: Discussions where no previous announcement has been made of the business' or industry's interest in locating or expanding in the community. Va. Code Ann. § 2.2-3711.A.5.
f. Investment of Public Funds: Where competition or bargaining is involved, where, if made public initially, the financial interest of the governmental unit would be adversely affected. Va. Code Ann. § 2.2-3711.A.6.
g. Consultation and Legal Advice: With legal counsel, staff members or consultants pertaining to actual or probable litigation or other specific legal matters requiring the provision of legal advice by counsel. The mere presence of, or consultation with, an attorney at a meeting is not sufficient grounds for closure. Va. Code Ann. § 2.2-3711.A.7. See Marsh v. Richmond Newspapers, Inc., 223 Va. 245, 288 S.E.2d 415 (1982) (The governing body need not disclose in detail the legal matter or legal issues to be considered.). This provision is best interpreted as being aimed at litigation work product protection.
h. Consultation and Legal Advice: With legal counsel employed or retained by a public body regarding specific legal matters. The mere presence of, or consultation with, an attorney at a meeting is not sufficient grounds for closure. Va. Code Ann. §2.2-3711.A.8.
i. Discussion of Gifts, Fundraising, and Bequests to State Institutions of Higher Education: Discussion by boards of visitors of public institutions of higher education, of matters relating to gifts, bequests and fundraising activities, and grants or contracts for services or work to be performed by such institution. However, if the gifts, financial contributions, or bequests are made by a foreign government or foreign person, the terms and conditions shall be subject to disclosure upon written request. Va. Code Ann. § 2.2-3711.A.9.
j. Discussions of Gifts, Bequests, and Grants to Specified Entities: Discussion by boards of trustees relating to specific gifts, bequests, and grants from private sources to Virginia Museum of Fine Arts, the Virginia Museum of Natural History, the Jamestown-Yorktown Foundation, and the Science Museum of Virginia.Va. Code Ann. § 2.2-3711.A.10.
k. Discussions Regarding Honorary Degrees and Special Awards: May be exempt from the open meeting provisions. Va. Code Ann. § 2.2-3711.A.11.
l. Tests and Examinations: Discussion of tests, examinations or other records excluded pursuant to § 2.2-3705.1.4. (student, employee or licensee qualification and evaluation testing). Va. Code Ann. § 2.2-3711.A.12.
m. Disciplinary Action Against a General Assembly Member: Discussion by appropriate committees of possible disciplinary action arising out of the possible inadequacy of the disclosure statement filed by the member. The member may request in writing that the meeting not be closed. Va. Code Ann. § 2.2-3711.A.13.
n. Negotiation of Hazardous Waste Siting Agreements: May be exempt from the open meeting requirement if the governing body finds that an open meeting will have a detrimental effect upon the negotiating position of the government body or the establishment of terms and conditions of the agreement. Va. Code Ann. § 2.2-3711.A.14.
o. Forecasts or Estimates of General and Non-General Fund Revenues: Discussion by the governor and any economic advisory board reviewing economic forecasts and estimating revenues. Va. Code Ann. § 2.2-3711.A.15.
p. Medical and Mental Records: Discussion of medical and mental records excluded under § 2.2-3705.5.1. Va. Code Ann. § 2.2-3711.A.16.
q. State Lottery Information: Deliberations of Virginia Lottery Board concerning license denial or revocation; discussion or review of proprietary lottery game information excluded under Va. Code Ann.§§ 2.23705.3.6 and 3705.7.11. Va. Code Ann. § 2.2-3711.A.17.
r. Board of Corrections Anonymous Tips: Discussion by Board of prisoner tips concerning criminal activity, potential escapes or other extraordinary services provided anonymously. Va. Code Ann. § 2.2-3711.A.18.
s. Public Safety Plans Related to Terrorism: Discussion of plans relating to terrorist activity or cybersecurity threats, and discussion of records excludable under Va. Code Ann. 2.2-3705.2.2 or 14. Va. Code Ann. § 2.2-3711.A.19.
t. Investment Information Concerning the Virginia Retirement System, any local retirement system, the Virginia College Savings Plan or the Board of Visitors of the University of Virginia: Discussion regarding the acquisition, holding or disposition of a security or other ownership interest in an entity, where such security or ownership interest is not traded on a governmentally regulated securities exchange, to the extent that such discussion (i) concerns confidential analyses prepared for the covered public body and provided to the public body under a promise of confidentiality, of the future value of such ownership interest or the future financial performance of the entity, and (ii) would have an adverse effect on the value of the investment to be acquired, held or disposed of by the covered public body. Nothing in this subdivision may be construed to prevent the disclosure of information relating to the identity of any investment held, the amount invested or the present value of such investment. Va. Code Ann. § 2.2-3711.A.20.
u. Discussions of Deaths by Child and Adult Fatality Review Teams: Discussion of individual dearth cases by covered public bodies. Va. Code Ann. § 2.2-3711.A.21.
v. Proprietary and Business-Related Information Related to University of Virginia Medical Center or Eastern Virginia Medical School: Discussions by University of Virginia Board of Visitors, Eastern Virginia Medical School Board of Visitors, or the management of University of Virginia Medical Center or Eastern Virginia Medical School of business or proprietary information and business development or marketing strategies, which, if disclosed, would be harmful to the competitive position of the medical center. Va. Code Ann. § 2.2-3711.A.22.
w. Proprietary and Business-Related Information Related to the Virginia Commonwealth University Health System Authority: Discussion of marketing or operational strategies which, if disclosed, would be harmful to the competitive position of the authority; members of its medical and teaching staffs and qualifications for appointments thereto; and qualifications or evaluations of other employees. Va. Code Ann. § 2.2-3711.A.23. This subdivision also contains language that is redundant of other exclusions that relate to procurement activities and gifts or bequests.
x. Health Practitioners’ Monitoring Program Committee meetings within the Department of Health Professions: To the extent such discussions identify any practitioner who may be, or is, impaired pursuant to Va Code Ann. § 54.1-2515 et seq. Va. Code Ann. § 2.2-3711.A.24.
y. Meetings of the Board of the Virginia College Savings Plan: Where personal information about individuals requesting information about, or applying for, prepaid tuition contracts or savings trust account agreements is discussed. Va. Code Ann. § 2.2-3711.A.25.
z. Discussions of Trade Secrets by the Wireless Carrier E-911 Cost Recovery Subcommittee: Discussion of trade secrets related to the provision of wireless E-911 service. Va. Code Ann. § 2.2-3711.A.26.
aa. Portions of Disciplinary Proceedings: Any regulatory board within the Department of Professional and Occupational Regulation, Department of Health Professions, or the Board of Accountancy conducting disciplinary proceedings pursuant to § 2.2-4019 or § 2.2-4020 during which the board deliberates to reach a decision or meetings of health regulatory boards or conference committees of such boards to consider settlement proposals in pending disciplinary actions or modifications to previously issued board orders as requested by either of the parties. Va. Code Ann. § 2.2-3711.A.27.
bb. Information Excluded Under PPEA-PPTA Records Exclusion: Discussion or consideration by a responsible public entity or an affected local jurisdiction, as those terms are defined in § 56-557, of confidential proprietary records excluded from this chapter pursuant to § 2.2-3705.6.11. Va. Code Ann. § 2.2-3711.A.28.
cc. Bargaining Position or Negotiating Strategy: Discussion of the award of a public contract involving the expenditure of public funds, including interviews of bidders or offerors, and discussion of the terms or scope of such contract, where discussion in an open session would adversely affect the bargaining position or negotiating strategy of the public body. Va. Code Ann. § 2.2-3711.A.29.
dd. Grant Application Records: Discussion or consideration by the Commonwealth Health Research Board or the Innovation and Entrepreneurship Investment Authority or a grant allocation committee of grant application records excluded from the Act pursuant to § 2.2-3705.6.17. Va. Code Ann. § 2.2-3711.A.30.
ee. Sexually Violent Predators: Discussion or consideration by the Commitment Review Committee of records excluded from the Act under § 2.2-3705.2 relating to individuals subject to commitment as sexually violent predators under Va. Code Ann. § 37.2-900 et seq.. Va. Code Ann. § 2.2-3711.A.31.
ff. Local Telecommunications and Cable Services Proprietary Records and Trade Secrets : Discussion or consideration of confidential proprietary records and trade secrets excluded pursuant to § 2.2-3705.6. Va. Code Ann. § 2.2-3711.A.32. This subdivision does not apply to the BVU Authority.
gg. Virginia Wireless Service Authorities Act: Discussion or consideration by a local authority created in accordance with the VWSAA (§ 15.2-5431.1 et seq.) of confidential proprietary records and trade secrets excluded pursuant to § 2.2-3705.6.19. Va. Code Ann. § 2.2-3711.A.33.
hh. Voting Security Matters: Discussion or consideration by the State Board of Elections or local electoral boards of voting security matters made confidential pursuant to § 24.2-625.1. Va. Code Ann. § 2.2-3711.A.34.
ii. Forensic Science Board or Scientific Advisory Committee: Discussion or consideration by the Forensic Science Board or Scientific Advisory Committee of criminal investigative files subject to exclusion under Va. Code Ann. § 2.2-3706.B.1.. Va. Code Ann. § 2.2-3711.A.35..
jj. Brown v. Board of Education Scholarship Program Awards Committee: Discussion or consideration by the committee to deliberate concerning the annual maximum scholarship award, review and consider applications and requests for scholarship award renewal, and to cancel, rescind, or recover scholarship awards. Va. Code Ann. §2.2-3711.A.36.
kk. Virginia Port Authority: Discussion or consideration of records excluded from the Act pursuant to Va. Code Ann. § 2.2-3705.6.1. Va. Code. Ann. § 2.2-3711.A.37.
ll. Investments of Virginia Retirement System Board of Trustees, Local Retirement Systems and Virginia college Savings Plan: Discussion or consideration by the Board of Trustees of VRS acting pursuant to § 51.1-124.30 by the Investment Advisory Committee appointed pursuant to § 51.1-124.26 by any local retirement system, acting pursuant to § 51.1-803, by the Board of the Virginia College Savings Plan acting pursuant to § 23.1-706, or by the Virginia College Savings Plan's Investment Advisory Committee appointed pursuant to § 23.1-702 of information subject to exclusion under the Act pursuant to Va. code Ann. § 2.2-3705.7.24. Va. Code Ann. § 2.2-3711.A.38.
mm. Economic Development Trade Secret Information: Discussion or consideration of certain records regarding trade secrets excluded from the Act pursuant to Va. Code Ann. § 2.2-3705.6.3. Va. Code Ann. § 2.2-3711A.39.
nn. Board of Education Licensure Matters: Discussion or consideration by the Board of Education of records relating to the denial, suspension, or revocation of teacher licenses excluded from the Act pursuant to Va. Code Ann. § 2.2-3705.2.11. Va. Code Ann. § 2.2-3711.A.40.
oo. Military Advisory Councils: Those portions of meetings of the Virginia Military Advisory Council, commission created by executive order, or a local or regional military affairs organization appointed by a local governing body, during which there is discussion of information concerning military base closure or realignment subject to exclusion under the Act pursuant to Va. Code Ann. § 2.2-3705.2.8. Va. Code Ann. § 2.2-3711.A.41.
pp. Veterans Services Foundation: Discussion or consideration by the Board of Trustees of the Veterans Services Foundation of information subject to exclusion from the Act pursuant to Va. Code Ann. § 2.2-3705.7.28. Va. Code Ann. § 2.2-3711.A.42.
qq. Virginia Tobacco Region Revitalization Commission: Discussion or consideration by the Commission of information in grant applications subject to exclusion under Va. Code Ann. § 2.2-3705.6.23. Va. Code. Ann. § 2.2-3711.A.43.
rr. Commercial Space Flight Authority: Discussion or consideration by the Board of the CSFA of rates, services and proprietary information subject to exclusion under Va. Code Ann. § 2.2-3705.6.24. Va. Code Ann. § 2.2-3711.A.44.
ss. Agricultural Landowner Information Provided to Certain Public Bodies: Discussion or consideration of information provided to Department of Environmental Quality, Department of Agriculture or other public bodies subject to exclusion under Va. Code Ann. § 2.2-3705.6.25 or § 10.1-104.7.E. Va. Code Ann. § 2.2-3711.A.45.
tt. Alcoholic Beverage Licensee Information: Discussion or consideration by the Board of the ABC Authority of information relating to licensee investigations and subject to exclusion under Va. Code Ann. § 2.2-3705.3.1. Va. Code Ann. § 2.2-3711.A.46.
uu. Virginia Research Investment Fund Applications: Discussion or consideration of grant or loan application information subject to exclusion under Va. Code Ann. § 2.2-3705.6.28. Va. Code Ann. § 2.2.3711.A.47.
vv. Virginia Growth and Opportunity Board Grant Proposals: Discussion or development of grant proposals by a regional council established pursuant to Va. Code Ann. § 2.2-2484 to be submitted for consideration to the Virginia Growth and Opportunity Board. Va. Code Ann. § 2.2-3711.A.48.
ww. Sexual Assault Review Team Discussions: Discussion of individual cases bisexual assault tem or child abuse and neglect team established by Va. Code Ann. §§ 15.2-1627.4 or 1627.5. Va. Code Ann. § 2.2-3711.A.49.
xx. Economic Development Entities: Discussion of consideration by Board of Virginia Economic Development Partnership Authority of strategic, marketing or operational plans subject to exclusion under Va. Code Ann. § 2.2-3705.7.33. Va. Code Ann. § 2.2-3711.A.50.
yy. Virginia Economic Development Authority Information Received from Virginia Employment Commission: Portions of meeting to review and discuss information received by VEDPA from VEC pursuant to Va. Code Ann. § 60.2-114. Va. Code Ann. § 2.2-3711.A.51.
Meetings may be closed in the following situations because the OPMA is deemed inapplicable, RCW 42.30.140:
a. The formal granting or denying of a license permit or certificate to engage in a business, occupation or profession, or disciplinary proceedings involving a member of a business, occupation or profession;
b. Proceeding of a quasi-judicial nature relating to named parties. A county commission’s consideration of whether to grant a permit allowing a city to extend its sewer outfall, as a matter of significant public interest, was not a “quasi-judicial matter between named parties.” Protect the Peninsula’s Future v. Clallam County, 66 Wn. App. 671, 676, 833 P.2d 406 (1992). A four-part test is employed to determine whether an agency action is quasi-judicial:
(1) [w]hether a court could have been charged with making the agency’s decision; (2) whether the action is one which historically has been performed by courts; (3) whether the action involves the application of existing law to past or present facts for the purpose of declaring or enforcing liability; and (4) whether the action resembles the ordinary business of courts as opposed to that of legislators or administrators.
c. Meetings involving matters covered by the state Administration Procedure Act (“APA”) Ch. 34.05 RCW. (The APA has its own, more limited, provisions for “public observation.” See RCW 34.05.449.) The APA does not apply to local agencies. Victoria Tower Partnership v. City of Seattle, 49 Wn. App. 755, 745 P.2d 1328 (1987);
d. Collective bargaining sessions with employee organizations, including contract negotiations, grievance meetings, and discussions relating to the interpretation or application of a labor agreement; and
e. Meetings or portions of meetings concerning the strategy or position to be taken by the governing body during the course of collective bargaining, professional negotiations, grievance or mediation proceedings, or involving reviewing proposals made in such negotiations or proceedings.
Executive sessions may be called in the following situations, RCW 42.30.110(1)(a)-(m):
a. To consider matters affecting national security;
b. To consider, with legal counsel available, information regarding communications network security, risk assessments and related information that if made public may increase the risk to agency security or information technology infrastructure;
c. To consider the selection of a site or the acquisition of real estate by lease or purchase when public knowledge regarding such consideration would likely increase the price;
d. To consider the minimum price at which real estate will be offered for sale or lease when public knowledge regarding the consideration would likely lower the price;
e. To review negotiations on the performance of publicly bid contracts when public knowledge would likely increase costs;
f. To consider, in the case of a commercial export trading company, financial and commercial information supplied by private persons to the export trading company;
g. To receive and evaluate complaints or charges brought against a public officer or employee, unless the officer or employee requests that the meeting be open;
h. To evaluate qualifications of an applicant for public employment or to review the performance of a public employee. Final actions and discussions of generally applied salary levels must be open to the public;
i. To evaluate the qualifications of a candidate for employment to elective office. Interviews and final actions appointing candidates to elective office must be open;
j. To discuss certain matters with legal counsel when public knowledge of the discussion is likely to result in adverse legal or financial consequences to the agency;
k. To discuss western library network prices, products, equipment and services, when public discussion would reduce the network’s competitiveness, though final actions must be taken in public;
l. To consider, in the case of the State Investment Board, financial and commercial information when the information relates to the investment of public trust or retirement funds and when public knowledge regarding the discussion would result in loss to such funds or in private loss to the providers of this information;
m. To consider proprietary or confidential non-published information related to the development, acquisition, or implementation of state purchased healthcare services; and
n. To consider, in the case of the life sciences discovery fund authority, the substance of grant applications and grant awards when public knowledge regarding the discussion would reasonably be expected to result in private loss to the providers of this information.
o. To consider in the case of a health sciences and services authority, the substance of grant applications and awards when public knowledge regarding the discussion would reasonably be expected to result in private loss to the providers of this information.
The Open Meetings Act, as amended in 1999, specifically exempts twelve categories of information from its provisions. These exceptions, which are stated in much broader language than the exemptions under the Freedom of Information Act, permit public bodies to meet in closed executive session to discuss the following items:
(a) The governing body of a public agency may hold an executive session during a regular, special or emergency meeting, in accordance with the provisions of this section. During the open portion of the meeting, prior to convening an executive session, the presiding officer of the governing body shall identify the authorization under this section for holding the executive session and present it to the governing body and to the general public, but no decision may be made in the executive session.
(b) An executive session may be held only upon a majority affirmative vote of the members present of the governing body of a public agency. A public agency may hold an executive session and exclude the public only when a closed session is required for any of the following actions:
(1) To consider acts of war, threatened attack from a foreign power, civil insurrection or riot;
(2) To consider:
(A) Matters arising from the appointment, employment, retirement, promotion, transfer, demotion, disciplining, resignation, discharge, dismissal or compensation of a public officer or employee, or prospective public officer or employee unless the public officer or employee or prospective public officer or employee requests an open meeting; or
(B) For the purpose of conducting a hearing on a complaint, charge or grievance against a public officer or employee, unless the public officer or employee requests an open meeting. General personnel policy issues may not be discussed or considered in a closed meeting. Final action by a public agency having authority for the appointment, employment, retirement, promotion, transfer, demotion, disciplining, resignation, discharge, dismissal or compensation of an individual shall be taken in an open meeting;
(3) To decide upon disciplining, suspension or expulsion of any student in any public school or public college or university, unless the student requests an open meeting;
(4) To issue, effect, deny, suspend or revoke a license, certificate or registration under the laws of this state or any political subdivision, unless the person seeking the license, certificate or registration or whose license, certificate or registration was denied, suspended or revoked requests an open meeting;
(5) To consider the physical or mental health of any person, unless the person requests an open meeting;
(6) To discuss any material the disclosure of which would constitute an unwarranted invasion of an individual's privacy such as any records, data, reports, recommendations or other personal material of any educational, training, social service, rehabilitation, welfare, housing, relocation, insurance and similar program or institution operated by a public agency pertaining to any specific individual admitted to or served by the institution or program, the individual's personal and family circumstances;
(7) To plan or consider an official investigation or matter relating to crime prevention or law enforcement;
(8) To develop security personnel or devices;
(9) To consider matters involving or affecting the purchase, sale or lease of property, advance construction planning, the investment of public funds or other matters involving commercial competition, which if made public, might adversely affect the financial or other interest of the state or any political subdivision: Provided, That information relied on during the course of deliberations on matters involving commercial competition are exempt from disclosure under the open meetings requirements of this article only until the commercial competition has been finalized and completed: Provided, However, that information not subject to release pursuant to the West Virginia freedom of information act does not become subject to disclosure as a result of executive session;
(10) To avoid the premature disclosure of an honorary degree, scholarship, prize or similar award;
(11) Nothing in this article permits a public agency to close a meeting that otherwise would be open, merely because an agency attorney is a participant. If the public agency has approved or considered a settlement in closed session, and the terms of the settlement allow disclosure, the terms of that settlement shall be reported by the public agency and entered into its minutes within a reasonable time after the settlement is concluded;
(12) To discuss any matter which, by express provision of federal law or state statute or rule of court is rendered confidential, or which is not considered a public record within the meaning of the freedom of information act as set forth in article one [§ § 29B-1-1 et seq.], chapter twenty-nine-b of this code.
W. Va. Code § 6-9A-4. There are no decisions of the West Virginia Supreme Court of Appeals interpreting any of these exceptions to the Act. It is certain, however, that all of these exceptions --- particularly numbers two and four --- are limited by the constitutional requirement, discussed below, that quasi-judicial proceedings of public bodies be open to the public.
The statutory grounds upon which meetings may be closed are (a) deliberating following a judicial or quasi-judicial trial or hearing; (b) considering negative action against an employee or licensee of the state or an investigation of same; (c) considering employment, promotion, compensation or performance evaluation data of a public employee (but not elected officials; see 76 Op. Att'y Gen. 276 (Nov. 6, 1987); (d) considering applications for probation or parole or strategies for crime detection or prevention; (e) deliberating or negotiating concerning specified public business whenever competitive or bargaining reasons require; (f) deliberating for the relocation of a burial site; (g) considering financial, medical, social or personal histories or disciplinary data, preliminary consideration of specific personnel problems or the investigation of charges against specific persons, if such discussion would be likely to have a substantial adverse effect upon the reputation of the person referred to; (h) conferring with counsel concerning actual or likely litigation; (i) state government accountability board or local ethics board consideration of requests for confidential written advice; and (j) considering economic adjustment program applications if public consideration would adversely affect the business or its employees. Wis. Stat. § 19.85(1).
Wyo. Stat. § 16-4-405 sets forth eleven instances where a governing body may close a meeting. That provision states:
“(a) A governing body of an agency may hold executive sessions not open to the public:
(i) With the attorney general, county attorney, district attorney, city attorney, sheriff, chief of police or their respective deputies, or other officers of the law, on matters posing a threat to the security of public or private property, or a threat to the public's right of access;
(ii) To consider the appointment, employment, right to practice or dismissal of a public officer, professional person or employee, or to hear complaints or charges brought against an employee, professional person or officer, unless the employee, professional person or officer requests a public hearing. The governing body may exclude from any public or private hearing during the examination of a witness, any or all other witnesses in the matter being investigated. Following the hearing or executive session, the governing body may deliberate on its decision in executive sessions;
(iii) On matters concerning litigation to which the governing body is a party or proposed litigation to which the governing body may be a party;
(iv) On matters of national security;
(v) When the agency is a licensing agency while preparing, administering or grading examinations;
(vi) When considering and acting upon the determination of the term, parole or release of an individual from a correctional or penal institution;
(vii) To consider the selection of a site or the purchase of real estate when the publicity regarding the consideration would cause a likelihood of an increase in price;
(viii) To consider acceptance of gifts, donations and bequests which the donor has requested in writing be kept confidential;
(ix) To consider or receive any information classified as confidential by law;
(x) To consider accepting or tendering offers concerning wages, salaries, benefits and terms of employment during all negotiations;
(xi) To consider suspensions, expulsions or other disciplinary action in connection with any student as provided by law.”