A. When to challenge

Any person (1) on notice that a public meeting will be closed, (2) denied access to a public meeting, or (3) asked to leave a public meeting may challenge the denial immediately, by speaking directly with the chairperson for the meeting of the public entity, or with the presiding trial court judge if closure of an on-going judicial proceeding is at issue. Options include:

Engaging an attorney and having the attorney speak with the chairperson of the meeting of the public entity or with the attorney for the public entity, or with the presiding trial court judge if closure of on-going judicial proceedings is at issue;

Asking the public entity that is threatening to meet in closed session to file a request for an Alabama attorney general opinion on the question of closure before proceeding to meet in closed session; or

Filing a complaint in circuit court in the county where the governmental body's primary office is located alleging that the pertinent public officials violated the Alabama Open Meetings Act, Ala. Code § 36-25A-1, et seq., by wrongfully closing a public meeting or remaining in attendance at a meeting that was held in executive session in violation of the statute.

The deadline to file a complaint is 60 days from when the plaintiff knew or should have known of the alleged violation, but in no event more than two years from the date of the alleged violation.  Ala. Code § 36-25A-10.  However, suits to invalidate an action taken must be filed within 21 days of when the action is made public.  Ala. Code § 36-25A-7(f). See Swindle v. Remington, 291 So.3d 439 (Ala. 2019), reh'g denied (Ala. 2019) (upholding circuit court’s invalidation of rate increases discussed during improper executive session).

Arizona’s OML allows legal challenges both before a violation will occur and after a violation has occurred.

Before violation:

A person may bring an action “for the purposes of requiring compliance with, or the prevention of violations of, [the OML] . . . or to determine the applicability of [the OML] to matters or legal actions of the public body.”  A.R.S. § 38-431.07(A).

A person also may seek a writ of mandamus ordering future compliance with the OML if potential violations seem likely.  A.R.S. § 38-431.04.  This is now done through a procedure known as a statutory special action.  See Arizona Rules of Procedure for Special Actions.

After violation: A.R.S. § 38-431.07(A) provides for actions against public bodies and their members who have violated the OML.

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Any person wrongfully denied the right to attend a meeting under FOIA, or denied any other right under FOIA, may appeal therefrom to the FOIC. Conn. Gen. Stat. §1-206(b)(1).

FOIA provides that a citizen complaining of a violation of the open meeting law has a right to challenge the validity “of any action of a public body by filing suit within 60 days of the citizen’s learning of such action but in no event later than 6 months after the date of the action.” 29 Del. C. § 10005(a). The Attorney General has declined to pursue any FOIA complaint where the act complained of took place more than six months prior to the date of the complaint. Del. Op. Att’y Gen., No. 00-ib05 (Feb. 18, 2000) (stating that since the meeting that is the subject of the complaint occurred more than six months ago, the Attorney General could not take any further action with regard to the complaint); see also Del. Op. Att’y Gen., No. 01-ib10 (June 12, 2001) (requiring a council “to begin the decision-making process anew” in order to remedy violations of the open meetings laws).

The Act, however, does not provide an expedited procedure for reviewing requests to attend upcoming meetings, for ruling on being barred from a meeting, for ruling on whether to set aside decisions made at improperly closed meetings or for ruling on future meetings. Those illegally barred from a meeting should attempt to persuade the agency to open the meeting; if this fails, negotiation with the public body’s attorney or litigation should be considered.

The Office of Open Government may bring a lawsuit to enforce the Open Meetings Act before or after the meeting in question takes place.  D.C. Code Ann. § 2-579(a).

A challenge may be made any time a present dispute exists.  See Askew v. City of Ocala, 348 So. 2d 308 (Fla. 1977) (declaratory relief not appropriate where plaintiff seeks judicial advice different from that advanced by the Attorney General and/or state attorney).

An informal or formal challenge is ripe and advisable as soon as a violation of the Act has occurred or is threatened.

Although the law does not specifically require it, a challenge should be initiated informally as soon as the violation of the law is known or suspected. In some instances, a governing body (particularly in some smaller local agencies) may simply be unaware or ill informed as to the law's requirements. If the governing body learns of its potential error in advance of the violation, the problem may be corrected.
The Idaho Open Meeting Law does not contain specific provision for reviewing requests to attend upcoming meetings. However, if it is apparent that the proposed meeting will violate the law, a person may draw upon general declaratory and injunctive judicial remedies to prevent the violation from occurring.
The only “bar” to challenging an Open Meeting Law violation is the statutory period for bringing a claim under the law, found at Idaho Code § 74-208(6). In some instances, permanent injunctive relief may be sought to prevent future violations of the law. A suit brought to have an action declared null and void because it happened at a meeting in violation of the Open Meeting Law needs to be commenced within 30 days of the time of the decision or action that results. Any other suit brought needs to be brought within 180 days of the time of the alleged violation.

Generally, challenges to Open Meetings Act violations must occur after the violation. See Ky. Rev. Stat. 61.846 and 61.848.

As soon as the public body fails to comply with the Act's open session, attendance, notice or minutes requirements, an adversely affected person may petition the circuit court for relief. § 3-401(b). The aggrieved individual must file a petition complaining of an alleged violation of the open session or attendance provisions within 45 days of the issuance of minutes documenting the prior closed session. § 3-401(b)(3). A petition complaining of an alleged violation of the notice or minutes requirements must be filed within 45 days of the alleged violation. § 3-401(b)(2). The 45-day limitations period does not apply to a claim about an Open Meeting Act violation that is included in a petition for judicial review of a governmental agency's action brought under other laws. Handley v. Ocean Downs, LLC, 151 Md. App. 615, 827, A.2d 961 (2003); see also OMA Manual, at 7-10.

The limitation periods are tolled by the use of the OMCB complaint procedures until the issuance of a written opinion by the Board. § 3-401(b)(4). The Act permits any adversely affected person to file a complaint with the OMCB for past or anticipated future violations of the Act. §§ 3-205, 3-212.

There are two ways to challenge a violation of the Open Meeting Law.  First, you can file a complaint with the chair of the public body, using a form on the Attorney General’s website.  940 C.M.R. 29.05(1). This must be done “within 30 days of the alleged violation” or, if the violation “could not reasonably have been known at the time it occurred, then within 30 days of the date it should reasonably have been discovered.” Id. at 29.05 (4). Within 14 days, the public body must review the complaint, “take remedial action, if appropriate,” send the complainant a response and description of the remedial action taken, and simultaneously send the Attorney General a copy of the complaint, the response, and a description of the remedial action taken, if any. Id. at 29.05(5).

Alternatively, the Attorney General or 3 or more registered voters may initiate a civil action to enforce the Open Meeting Law. G.L. c. 30A, § 23(f). The statute does not specify when such an action must be taken.

The OMA does not provide for administrative review.

Challenges to decisions to close public meetings have occurred both before and after the scheduled meeting. The law itself does not require that a court expedite such a challenge.

As soon as practical after being denied access.

The open meetings law and the constitutional provision may be asserted by petition either requesting voidability under Mont. Code Ann. § 2-3-213, or for general injunctive relief. There is no time limit on challenging a closed meeting when the petitioner seeks injunctive or prospective relief. However, if the petitioner intends to have the decision made in the closed meeting voided, the action must be brought within thirty days of the decision. Id.

Since most closure decisions turn on questions of individual privacy, the "legs" of the government's legal basis for a closed session may be summarily removed by contacting the individual about whom the discussion will pertain. Usually, that person has no objection to an open meeting and the privacy consideration is removed. This method of obtaining open meetings is particularly successful when the body indicates an intention, in advance of the meeting, to close the meeting to discuss "personnel" matters.

Moreover, in most instances, the chairman is not a lawyer or is relatively unschooled about open meetings law. A call from the media lawyer to the governmental body's lawyer will usually produce compliance with the law short of going to court.

RSA 91-A:7 provides that when a court finds that "time probably is of the essence, he may order notice by any reasonable means, and he shall have authority to issue an ex parte order when he shall reasonably deem such an order necessary to ensure compliance with the provisions of this chapter." RSA 91-A:8, III authorizes the court to enjoin future violations of the Statute.

Immediately, although no special statute of limitations applies to the Open Meetings Act.

Unless a specific statutory exemption to the open meetings law is applicable, a challenge to non-admission is appropriate.

The statute is silent on this issue. The basic procedure for challenging closure of meetings is through litigation, which can result in future direction to the governing body.

Legal challenges under the Act must be filed within 30 days of a closed meeting or within 30 days of discovery of an action that occurred at a closed meeting at which the Act was violated. In the latter case, there is a one-year outside time limit. 65 Pa. C.S.A. § 713. See, e.g., Day v. Civil Service Comm’n of the Borough of Carlisle, 931 A.2d 646 (Pa. 2007) (Sunshine Act challenge brought eight months after closed meeting was untimely); Lawrence Cty. v. Brenner, 582 A.2d 79 (Pa. Commw. Ct. 1990), appeal denied, 593 A.2d 426 (Pa. 1991) (stating that since there was no evidence to support the allegation that legal challenge was initiated more than 30 days after discovery, the court must conclude the action was timely); Bradford Educ. Ass’n. v. Bradford Area Sch. Dist., 572 A.2d 1314 (Pa. Commw. Ct. 1990) (finding that the 30-day limitations began to run when the person claiming a violation of the Sunshine Act read an editorial alleging such a violation).

The South Carolina Press Association provides cards for reporters with language to use when challenging a public body attempting to enter executive session illegally. The card instructs reporters to stand, address the chair of the meeting and state an objection to closing the meeting.

A person contesting closure should advise the public body of that fact and attempt to convince them that a closed meeting would be improper in the first instance. The public body might be persuaded to postpone holding such a meeting until counsel have had an opportunity to confer about its legality.

Section 551.142 provides that an interested person, including a member of the news media, may bring an action by mandamus or injunction to stop, prevent, or reverse a violation or threatened violation of the Act by members of a governmental body. Tex. Gov’t Code § 551.142; see also Finlan, 888 F. Supp. at 784. An action taken by a governmental body in violation of this Act is voidable. Tex. Gov’t Code § 551.141.

Promptly challenging the closure of a meeting is recommended. Generally, an effort should be made to address the presiding officer or the clerk of the body, explain that the body is not complying with the requirements of the Act, and request reconsideration of the motion to close.

There is no specific statutory requirement as to when a closed meeting must be challenged. Therefore, the normal statute of limitations of two years and the doctrine of laches probably apply.

Wisconsin’s Open Meetings Law, in contrast to its Open Records Law, is basically intended to be enforced by an action for penalties after the violation, brought by the attorney general, the local district attorney, or a private citizen. There are no pre-meeting procedures for the assertion or preservation of rights by persons who wish to attend. Wis. Stat. § 19.97; see also State ex rel. Auchinleck v. Town of La Grange, 200 Wis. 2d 585, 595, 547 N.W.2d 587, 591 (1996) (claimant under the Open Meetings Law is not required to comply with 120-day-notice-of-claim requirement contained in state tort claims act). However, a request for declaratory relief, mandamus or an injunction may be made before, as well as after, a meeting.

There is no procedure set forth in the Public Meetings Act for asserting a right of access. Refer to the Wyoming Rules of Civil Procedure.  However, Wyoming courts have accepted petitions from citizens and media outlets for declaratory judgments regarding violations of the Public Meetings Act and whether actions at meetings in violation of the Act are null and void.