If it is possible to discover what occurred at a closed meeting by obtaining records of action taken at the meeting — minutes, resolutions, votes, etc. — an effort should be made to do so as soon after the closed meeting as possible. See, e.g., Birmingham News Co. v. Cooper, 13 Media L. Rep. (BNA) 1655 (Cir. Ct. of Jefferson County, Ala., Equity Div., Oct. 29, 1986) (Ethics Commission met in executive session in violation of former open meetings law; trial court granted TRO, restraining Commission from denying access to records and other information that would disclose the vote(s) taken at the closed meeting); Birmingham News Co. v. Bell, 17 Media L. Rep. (BNA) 1597 (Cir. Ct. of Jefferson County, Ala., Jan. 5, 1990) (city council met as committee of the whole and voted for Council officers in attempt to evade requirements of former open meetings law and laws requiring voice vote for election of Council officers; trial court enjoined Council from denying access to record of vote(s) for Council officers) (attorneys' fee award affirmed in Bell v. Birmingham News Co., 576 So. 2d 669 (Ala. Civ. App. 1991)).
Under both Acts, any person may commence an action by mandamus, injunction or declaratory relief to determine whether any rule or action by the state body or legislative body of a local agency to penalize or discourage the expression of its members is legal, or to compel the state body to tape record its closed sessions. Cal. Gov't Code §§ 11130(b) (Bagley-Keene Act); 54960(b) (Brown Act).
The court has the power to determine the applicability of the open session, notice, minutes, and attendance requirements of the Act and to grant any other relief the court deems appropriate. § 3-401(b).
A suit brought against a public body to require compliance with the provisions of this chapter must be commenced within 120 days after the action objected to was taken by that public body in violation of this chapter. NRS 241.037.
The statute requires that an injunction action authorized by the statute must be brought within two years after the date of the alleged violation or threatened violation. Ohio Rev. Code § 121.22(I)(1).
Mandamus is an appropriate remedy to compel the creation of minutes of meetings, whether open or closed, and if closed, regardless of whether the meeting was closed lawfully. State ex rel. Cincinnati Post v. City of Cincinnati, 76 Ohio St. 3d 540, 668 N.E.2d 903 (1996); White v. Clinton Cty. Bd. of Comm'rs, 76 Ohio St. 3d 416, 667 N.E.2d 1223 (1996); State ex rel. The Fairfield Leader v. Ricketts, 56 Ohio St. 3d 97, 564 N.E.2d 486 (1990).
Where a public body unlawfully closed a meeting before the person seeking to attend could bring suit, a procedurally sound way to challenge the closure after the meeting is to sue the public body to compel the creation of minutes of the meeting. Otherwise, the person seeking attendance could seek a declaratory judgment, injunction, or mandamus, arguing that the matter is capable of repetition, yet evading review and is not moot. State ex rel. Plain Dealer Publishing Co. v. Barnes, 38 Ohio St. 3d 165, 527 N.E.2d 807 (1988).
Another remedy for challenging the closure of a meeting after it is over is to sue to invalidate whatever action the public body took as a result of the closed meeting (or during it). Ohio Rev. Code § 121.22(H). The virtue of that remedy, like the virtue of seeking the creation of minutes after the conclusion of closed meetings, is that the court necessarily will rule on the lawfulness of closing the meeting and thus create a principle of law guiding future meetings. However, the remedy of seeking invalidation is not recommended because courts try hard to avoid invalidating action already taken, and construe the duty to open meetings narrowly.
Curing violation. Some courts have held that an agency may “cure” a prior violation of the Act by allowing public comment or voting in public at a subsequent meeting. See, e.g., Ass’n of Comm. Org. for Reform Now v. SEPTA, 789 A.2d 811 (Pa. Commw. Ct. 2002); League of Women Voters of Pa. v. Commonwealth, 683 A.2d 685 (Pa. Commw. Ct. 1996).
Because the open meeting law provides remedies for “the curtailment of free speech [caused] by holding improper executive sessions” and for “violations of the rights to observe and participate in the discussion and decision making of local government,” a plaintiff cannot maintain a suit for damages for the same injuries under articles 13 (freedom of speech) or 10 (due process) of the Vermont Constitution. Berlickij v. Town of Castleton, 248 F. Supp. 2d 335, 341-42 (D. Vt. 2003).
The Open Meetings Act provides a practical limitation on challenges made to bond issues. If notice of the meeting at which the bond issue was finally considered was given at least ten days prior to the meeting by a Class I legal advertisement in a qualified newspaper having general circulation in the geographical area, then the bond issue will not be rendered void in a challenge by a citizen. W. Va. Code § 6-9A-6.
It should also be noted that the Act provides for a process by which "any governing body or member thereof . . . may seek advice, information from the executive director of the West Virginia ethics commission" or "an advisory opinion from the West Virginia ethics commission committee on open governmental meetings" for purposes of determining whether "an action or proposed action violates the provisions" of the Act. W. Va. Code § 6-9A-11. The West Virginia ethics commission committee on open governmental meetings was created by the 1999 amendments. W. Va. Code § 6-9A-10. All written advisory opinions of the committee are available from Office of the West Virginia Secretary of State (304-558-6000) and online: https://ethics.wv.gov/advisoryopinion/Pages/default.aspx . These opinions may provide additional clarification that may help one determine whether court action is advisable.