B. Any other statutory requirements for closed or open meetings
Various statutory provisions require closed proceedings in certain contexts. For example, multidisciplinary child protection teams are created by the Department of Health and Social Services to assist in the evaluation and investigation of reports of harm to children made under AS 47.17 and to provide consultation and coordination for agencies involved in child protection cases under AS 47.10, the child-in-need-of-aid statute. AS 47.14.300. Meetings of a team are closed to the public and are not subject to the provisions of AS 44.62.310 and 44.62.312, the OMA. AS 47.14.300(e). Similarly, meetings of the state child fatality review team are closed to the public and are not subject to the provisions of AS 44.62.310 and 44.62.312. AS 12.65.140(c), as are meetings of domestic violence fatality review teams. AS 18.66.400(d).
Whenever circumstances subject a child to the jurisdiction of the court under the child-in-need-of-aid (CINA) statute, AS 47.10.005 - 47.10.142, a preliminary inquiry and report may result in informal or formal hearings and proceedings. CINA hearings are now presumptively open to the public, except as provided in the CINA statute and unless prohibited by federal or state law, court order or court rule. AS 47.10.070(a). The CINA statute provides that child-in-need-of-aid cases are closed to the public during (1) the initial court hearing after the filing of a petition to commence the child-in-need-of-aid case; (2) a hearing following the initial hearing in which a parent, child or other party to the case is present but has not had an opportunity to obtain legal representation; or (3) a hearing, or a part of a hearing, for which the court issues a written order finding that allowing the hearing, or part of the hearing, to be open to the public would reasonably be expected to (A) stigmatize or be emotionally damaging to a child; (B) inhibit a child's testimony in that hearing; (C) disclose matters otherwise required to be kept confidential by state or federal statute or regulation, court order, or court rule; or (D) interfere with a criminal investigation or proceeding or a criminal defendant's right to a fair trial in a criminal proceeding. AS 47.10.070(c). If a hearing, or part of a hearing, in a child-in-need-of-aid case is not closed under this subsection .070(c), the court shall hear in camera any information offered regarding the location, or readily leading to the location, of a parent, child or other party to the case who is a victim of domestic violence or whose safety or welfare may be endangered by public release of the information. Access to testimony heard in camera under this subsection is limited to the court and authorized court personnel. AS 47.10.070(d). Notwithstanding any other provision of the CINA statute, a person attending a hearing open to the public may not disclose a name, picture or other information that would readily lead to the identification of a child who is the subject of the child-in-need-of-aid case. At the beginning of the hearing, the court must issue an order specifying the restrictions necessary to comply with this subsection. If a person violates the order, the court may impose any appropriate sanction, including contempt and closure of any further hearings to the person. AS 47.10.070(f). Also, the CINA statute provides for adjudication hearings to determine whether the child is or is not a child in need of aid, and, if so, to determine an appropriate disposition for the matter, which might include releasing the child to parents or others, making the child a ward of the state, committing the child to the custody of the Department of Health and Social Services, to a foster home, and hearings concerning a "permanency plan" for the child or termination of parental rights. A hearing conducted under this section is open to the public unless an exception provided in AS 47.10.070 (c) applies to make the hearing closed to the public or unless prohibited by federal or state statute or regulation. AS 47.10.080(u).
Notwithstanding section .110(a), a court hearing on a petition seeking the adjudication of a minor as a delinquent shall be open to the public, except as prohibited or limited by order of the court, if (1) the department files with the court a motion asking the court to open the hearing to the public, and the petition seeking adjudication of the minor as a delinquent is based on (A) the minor's alleged commission of an offense, and the minor has knowingly failed to comply with all the terms and conditions required of the minor by the department or imposed on the minor in a court order; (B) the minor's alleged commission of (i) a crime against a person that is punishable as a felony; (ii) a crime in which the minor employed a deadly weapon (b), in committing the crime; (iii) arson; (iv) burglary; (v) distribution of child pornography; (vi) promoting prostitution in the first degree; or (vii) misconduct involving a controlled substance under AS 11.71 involving the delivery of a controlled substance or the possession of a controlled substance with intent to deliver; or (C) the minor's alleged commission of a felony and the minor was 16 years of age or older at the time of commission of the offense when the minor has previously been convicted or adjudicated a delinquent minor based on the minor's commission of an offense that is a felony; or (2) the minor agrees to a public hearing on the petition seeking adjudication of the minor as a delinquent, AS 47.12.110(d), or when the district attorney has elected to seek imposition of a dual sentence and a petition has been filed under AS 47.12.065, or when a minor agrees as part of a plea agreement to be subject to dual sentencing. AS 47.12.110(e).
There are isolated other statutory provisions in laws governing various agencies that allow for closed proceedings. See, e.g., AS 14.20.180(d, e) (a tenured teacher notified of dismissal or nonretention can demand a hearing and require that the hearing be either public or private). Also, a number of statutes give the person or entity whose rights are the subject of or affected by the proceedings to choose to have the proceedings open. For example, upon receipt of a proper petition for a civil commitment for mental health reasons, the court holds a hearing, at which the respondent, the person to be committed, has certain rights, including the right to have the hearing open or closed to the public as the respondent elects. AS 47.30.735(b)(3).
A meeting of the Board of Agriculture and Conservation to act on applications for loans is exempt from the public meeting requirements of the Open Meetings Act. AS 03.10.050(c).
Meetings of public electric and telephone cooperatives are required to be open, but under the provisions of the corporate code governing utility cooperatives, not the OMA. See AS 10.25.175. The most significant effect of this distinction is that only "members" of the cooperative are entitled to attend board meetings. Zoerb v. Chugach Electric Ass'n Inc., 798 P. 2d 1258 (Alaska 1990) (employee of electric cooperative properly excluded from meeting because he was not a member). Other differences between the open meetings provisions of Title 10 and Title 44 (OMA) are that the section governing utility cooperatives applies only to meetings at which a quorum of the board is present, discussions between the Board and its attorney can be closed if disclosure would have an immediate adverse effect, only "formal action" is prohibited in executive sessions, and action taken contrary to the statute is not void if other equitable relief is available. Co-op board members may be subject to recall for violations of open meetings rules governing utility cooperatives found in Title 10 or in utility by-laws, as public officials may be for alleged violations of the OMA. Cf., section IV.C.11, infra.
Closed Meeting Requirements:
- Student disciplinary, suspension or expulsion proceedings can be done in executive session, unless, subject to some exceptions, the parent or guardian wants an open meeting. A.R.S. § 15-843(A), (G). Notice and minutes are required. A.R.S. § 15-843(A).
- A school board’s review of teacher decision either to promote or retain (i.e., flunking) a student in elementary school or to pass or fail a student in a high school course can be done in an executive session, unless the parent, guardian, or emancipated student wants an open meeting. A.R.S. § 15-342(11).
- Meetings of advisory committees of the Arizona Board of Regents may be held in executive sessions, except that a student whose records are being discussed may request an open meeting. A.R.S. § 15-1624.
- Emergency ringside meetings by Arizona State Boxing Commission are exempt from the OML. A.R.S. § 5-223(B).
- Conference call meetings of the board of trustees for the Public Safety Personnel Retirement System “that are held for investment purposes only” are not subject to the OML, except that the minutes shall be available for public inspection within 24 hours after the meeting. A.R.S. § 38-848(H). The board must ratify all legal actions taken during these conference calls at the next regular public meeting. Id.
- A subcommittee of the military family relief advisory committee may meet in executive session without providing advance notice. A.R.S. § 41-608.04(E). If notice is provided, the full advisory committee can meet in executive session “to review and evaluate applications or review recommendations of the subcommittee.” Id.
- “The constitutional defense council shall brief the joint legislative budget committee in executive session regarding contracts for legal representation over the amount of fifty thousand dollars.” A.R.S. § 41-401(L).
- “[T]he director of the department of administration shall meet with and review for the joint legislative budget committee in executive session the planned contribution strategy for each health plan, including indemnity health insurance, hospital and medical service plans, dental plans and health maintenance organizations.” A.R.S. § 38-658(A).
- The Agricultural Employment Relations Board may meet in executive session by majority vote. A.R.S. § 23-1386(G).
- Hearings may be by closed at the discretion of the director of the Department of Insurance, “but the hearing shall be open to the public if so requested in writing by any principal party to the hearing.” A.R.S. § 20-164(A).
- Informal conferences of advisory committees to the Board of Technical Registration are confidential and closed to the public. A.R.S. § 32-129(C).
- Meetings of the property and casualty insurance guaranty fund in which any member insurer’s financial condition is discussed are closed to the public. A.R.S. § 20-671.
Open Meeting Requirements:
- The Arizona Corporation Commission’s meeting are “open to the public.” A.R.S. § 40-102(B).
- Before promulgating rules, state agencies must permit public participation by providing an opportunity to submit written statements and, if requested, to present oral testimony. A.R.S. § 41-1023. A similar requirement is imposed on air pollution control officers for proposed rules or ordinance making actions. A.R.S. § 49-471.06.
- A school board must require that all committee meetings authorized for textbook review and selection are open to the public. A.R.S. § 15-721(F)(2).
- Dental Board’s meetings must be conducted pursuant to the OML. A.R.S. § 32-1205(B). In addition, meetings of the Board of Chiropractic Examiners, the Board of Occupational Therapy Examiners, and the Board of Respiratory Care Examiners generally are open to the public. A.R.S. §§ 32-902(B), 32-3402(D), 32-3503(B).
- Other than meetings to interview candidates or to make preliminary selections, meetings of the Ombudsman-Citizens Aide Selection Committee are open to the public. A.R.S. § 41-1373(C).
- Except when reviewing a domestic violence fatality case, the public may attend meetings of the Domestic Violence Fatality Review Teams. A.R.S. § 41-198(F).
- Hearings held as a result of any inspection pertaining to the safety and health of workers exposed to pesticides and any other safety and health issue not covered by the industrial commission are open to the public. A.R.S. § 3-3107(F).
- The public may attend meetings and access records of community based alternative programs for juveniles. A.R.S. § 8-321(I)(5).
- All proceedings of the County Sports Authority are open to the public. A.R.S. § 11-702(D)(2).
- Several statutes contain provisions mandating public access to specific meetings, including (1) the Advisory Council on Indian Health Care (A.R.S. § 36-2902.01(H)); (2) the Merit System Council for Law Enforcement Officers (A.R.S. § 38-1002(D)); (3) the Personnel Board (A.R.S. § 41-781(C)); and (4) board meetings for stadium districts (A.R.S. § 48-4203(D)(2)) and for public health services districts (A.R.S. § 48-5804(A)(2)).
- “To ensure transparency, the [Independent Redistricting] Commission must conduct it business ‘in meetings open to the public, with 48 or more hours public notice provided.’” Ariz. Minority Coal. for Fair Redistricting v. Ariz. Indep. Redistricting Comm’n, 220 Ariz. 587, 591, 208 P.3d 676, 680 (2009) (quoting Ariz. Const. art. 4, pt. 2, § 1(12)).
(1) Like the open records provisions of the FOIA, the act’s open meeting section incorporates other statutes that permit or require closed meetings. Under Ark. Code Ann. § 25-19-106(a), meetings must be open to the public “[e]xcept as otherwise specifically provided by law.” The phrase “by law” has been interpreted to mean “by statute,” and the statute must be specific in creating the exemption. Laman v. McCord, 245 Ark. 401, 432 S.W.2d 753 (1968) (statute creating an evidentiary privilege for attorney-client communications is not an exemption that would allow a governing body to meet with its attorney in private). See also Ark. Op. Att’y Gen. No. 2001-040 (Ark. Code Ann. § 11-10-314(a)(1), which provides that “information obtained by the Director of the Arkansas Employment Security Department . . . shall be held confidential,” does not authorize closed meetings); Ark. Op. Att’y Gen. No. 97-298 (Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g, neither qualifies as an exemption nor supersedes the FOIA under the Supremacy Clause).
(2) Hundreds of Arkansas statutes make some reference to public hearings or public meetings, but most either state simply that an entity is to conduct its business in public, e.g., Ark. Code Ann. § 23-110-203(a)(1) (Arkansas Racing Commission), or set forth an agency’s obligation to hold meetings without specifying whether they are to be open or closed, e.g., Ark. Code Ann. § 3-2-201(e) (Alcoholic Beverage Control Board). Under these statutes, the FOIA plainly demands an open meeting unless the personnel exemption or another statutory exemption applies.
(3) More than a dozen statutes qualify as exemptions to the FOIA. Also, the constitution specifically gives discretion to both houses of the legislature and committees of the whole to meet in private “when the business is such as ought to be kept secret.” Ark. Const. art. V, § 13. Exemptions enacted after June 30, 2009 must cite the FOIA. Ark. Code Ann. § 25-19-110. Illustrative statutes include:
(a) Ark. Code Ann. § 2-7-202(c) (mediation sessions conducted by Arkansas Farm Mediation Office).
(b) Ark. Code Ann. § 6-18-507(d)(2) (school boards may meet in executive session in student expulsion cases “if requested by the parent or guardian of the student”). See Ark. Op. Att’y Gen. Nos. 96-009, 87-478. As amended in 1997, Section 6-18-507 draws a distinction between a suspension from school (dismissal not to exceed 10 days) and an expulsion (dismissal for more than 10 days). The provision for closed meetings appears in paragraph (d), which deals with expulsions. A circuit court has held that the statute “provides for an executive session only in the case of expulsion hearings” and that a school board must meet in public when considering an appeal from a student who has been suspended. Troutt Brothers Inc. v. Valley View School Dist., No. CIV-2000-343(F) (Craighead County Cir. Ct., July 2, 2000).
(c) Ark. Code Ann. § 8-7-1012(c) (administrative hearings conducted by Department of Labor under Public Employees’ Chemical Right to Know Act).
(d) Ark. Code Ann. § 10-3-305(a) (meetings of Legislative Council).
(e) Ark. Code Ann. § 14-14-109(a)(2) (county quorum court meetings involving personnel). See Ark. Op. Att’y Gen. No. 97-080.
(f) Ark. Code Ann. § 16-10-404(b)(2) (preliminary proceedings of Judicial Discipline and Disability Commission are confidential, and commission members may deliberate in executive session at the close of public hearings). If a judge waives the statutory right to a closed probable-cause hearing, then the hearing must be public. Griffen v. Arkansas Judicial Discipline and Disability Comm’n, 368 Ark. 557, 247 S.W.3d 816 (2007).
(g) Ark. Code Ann. § 16-46-105(a) (meetings of hospital medical review committees are exempt from the FOIA). A previous version of this statute had been held insufficiently specific to qualify as an FOIA exemption, Baxter County Newspapers Inc. v. Medical Staff of Baxter Gen. Hospital, 273 Ark. 511, 622 S.W.2d 495 (1981), but the amended statute passes muster. Ark. Op. Att’y Gen. No. 2000-271.
(h) Ark. Code Ann. § 17-14-205(b) (disciplinary hearings conducted by Appraiser Licensing and Certification Board).
(i) Ark. Code Ann. § 23-2-316(b) (proceedings of Public Service Commission).
(j) Ark. Code Ann. § 23-42-203(e) (hearings held by Securities Commissioner).
(k) Ark. Code Ann. § 23-51-112(a) (hearings held by Bank Commissioner under Trust Institutions Act must be closed with respect to “a matter made confidential by law”).
(l) Ark. Code Ann. § 23-90-107(b)(3) (meetings of Arkansas Property & Casualty Advisory Association).
(m) Ark. Code Ann. § 25-17-208(b) (meetings to consider certain personnel matters by state boards and commissions whose members receive no compensation). See Ark. Op. Att’y Gen. No. 96-317.
(4) If an executive session is held pursuant to one of these statutes, the governing body may presumably permit anyone to attend, unless the statute provides otherwise. The provisions of Ark. Code Ann. § 25-19-106(c)(2) specifying those persons who may attend a closed meeting apply only to executive sessions under the personnel exemption. See Ark. Op. Att’y Gen. No. 96-009. But see Ark. Op. Att’y Gen. No. 87-478. Similarly, the requirement that the purpose of the executive session be announced appears only in the statutory provision covering the personnel exemption, Ark. Code Ann. § 25-19-106(c)(1), and is therefore not applicable when the executive session is held pursuant to another statute.
(5) A statute may prohibit executive sessions of any type. E.g., Ark. Code Ann. § 14-250-110(d) (board of directors of wastewater treatment district “shall at no time go into executive session”). See Ark. Op. Att’y Gen. No. 87-470 (1988) (interpreting Ark. Code Ann. § 14-116-308(d), since renumbered as § 14-116-308(d)(1) and limited by Act 1210 of 2003, codified as § 14-116-308(d)(2)).
Both Act require that the notice of meetings and agenda packets be made available in formats accessible to the disabled under the Americans with Disabilities Act. Cal. Gov’t Code §§ 11125(f), 11125.1(b) (Bagley-Keene Act); 54954.1, 54954.2(a)(1) (Brown Act).
Both Acts provide that no meeting, conference or other function shall be held in any facility that has discriminatory admission policies, or that is inaccessible to disabled persons, or where members of the public may not be present without making a payment or purchase. Cal. Gov't Code §§ 11131 (Bagley-Keene Act); 54961(a) (Brown Act).
Both Acts provide that no notice, agenda, announcement or report required under the Act need identify any victim or alleged victim of tortious sexual conduct or child abuse unless the identity of the person has been publicly disclosed. Cal. Gov't Code §§ 11131.5 (Bagley-Keene Act); 54961(b) (Brown Act).
The Brown Act provides that closed sessions of hospitals are subject to the requirements of Health and Safety Code Sections 1461, 1462, 32106, 32155 and Government Code Sections 37606, 37624.3 (regarding meetings of boards of trustees and governing bodies of hospitals and quorum requirements, hospital trade secrets, and medical audit reports). Cal. Gov't Code § 54962. School districts and community college districts are subject to provisions of the Education Code. Cal. Gov't Code § 54962.
Boards of county commissioners are required to meet in open session by Colo. Rev. Stat. § 30-10-302.
Boards of Education. Meetings of boards of education are declared open to the public by Colo. Rev. Stat. § 22-32-108(5).
Colorado Student Obligation Bond Authority. Meetings of the board of directors of Colorado Student Obligation Bond Authority are declared open to the public by Colo. Rev. Stat. § 23-3.1-205(2).
Division of Labor. Sessions of the director of the Division of Labor, or any deputy or referee of the division are required to be open to the public by Colo. Rev. Stat. § 8-1-106(3).
Search committees. Open. A search committee of a state public body or local public body shall establish job search goals, including the writing of the job description, deadlines for applications, requirements for applicants, selection procedures, and the time frame for appointing or employing a chief executive officer of an agency, authority, institution, or other entity at an open meeting. A list of all finalists being considered for a position shall be made public by the search committee no less than fourteen days prior to the first interview conducted for the position. Records submitted by or on behalf of a finalist for such position shall be subject to the provisions of Colo. Rev. Stat. § 24-72-204(3)(a)(XI). Colo. Rev. Stat. § 24-6-402(3.5).
The Act's open meeting requirements may be subject to provisions elsewhere in the Georgia Code. E.g., O.C.G.A. § 20-2-757(a) (public school disciplinary proceedings conducted by school administration or board of education not subject to requirements of Act); § 31-2A-16 (exempting the Department of Public Health’s Maternal Mortality Review Committee); § 43-34-124 (exempting meetings of the Patient Qualification Review Board to certify patients, physicians and pharmacies entitled to participate in the state’s medical marijuana program).
The provisions of the City Charter or applicable city ordinances apply if they are more stringent than those of the Sunshine Law. The Honolulu Charter allows closed "executive sessions" under fewer circumstances than under state law.
Corporation Counsel guidelines on proper implementation of the Sunshine Law include advanced written notice of meetings, written minutes, the public's right to tape record a meeting, and the penalties for willful violation of the law. As amended in 1984, the county ordinance requires eight days advance notice. Honolulu Corp. Counsel Memo. (Feb. 13, 1985).
Although it may be questionable as a practical matter how many minds remain open after deliberations during an executive session, no final decisions can be made in executive session. Idaho Code 74-206(3) states flatly that “no executive session may be held for the purpose of taking any final action or making any final decision.”
The Idaho Commission of Pardons and Parole is accorded limited exemption from this provision of the Open Meeting Law. Idaho Code § 20-213A. While their meetings are generally open, deliberations and decisions concerning paroles can be made in executive session and the votes of individual parole board members on such decisions shall not be made public. Idaho Code § 20-213A(1)(a). But the public may obtain overall vote tallies of Commission’s decisions. Idaho Code § 20-213A(2). See Leavitt v. Craven, 154 Idaho 661, 302 P.1 (2012) (commission’s consideration of death row inmate’s petition for commutation not required to be public).
Every public body is required to designate employees, officers, or members to receive training on compliance with this Act. Each public body must submit a list of designated employees, officers, or members to the Public Access Counselor. Within 6 months after the effective date of this amendatory Act of the 96th General Assembly, the designated employees, officers, and members must successfully complete an electronic training curriculum, developed and administered by the Public Access Counselor, and thereafter must successfully complete an annual training program. Thereafter, whenever a public body designates an additional employee, officer, or member to receive this training, that person must successfully complete the electronic training curriculum within 30 days after that designation. 5 ILCS 120/1.05.
The General Assembly and committees or commissions of the General Assembly are specifically exempt from the definition of "public body," but other state and local legislative bodies are covered by the definition. See 5 ILCS 120/1.02. The policy of openness is the same regarding the General Assembly, but the Illinois Constitution provides that sections of each house of the General Assembly and meetings of committees, joint committees and legislative commissions are open to the public unless two-thirds of the members elected to the particular house determine that the public interest requires a closed meeting. Joint committee and legislative commission meetings may also be closed if two-thirds of the members elected to each house so determine. See Ill. Const. art. IV, § 5(c)).
One court has noted that this provision actually places greater restrictions on the General Assembly than on bodies covered by the Act, since the General Assembly must have the concurrence of two-thirds of the members involved, while the Act allows closed meetings on certain topics without member concurrence. See People ex. rel. Hopf v. Barger, 30 Ill.App.3d 525, 534-35, 332 N.E.2d 649, 657 (2d Dist. 1975).
Additionally, the Open Meetings Act does not apply to a child death review team, the Illinois Child Death Review Teams Executive Council, and the meetings of the Executive Ethics Commission. See 5 ILCS 120/1.02.
Various statutes provide for other statutory requirements or authority for open or closed meetings. See, e.g., Ind. Code § 4-23-2-3(3) (public hearings of the Indiana Arts Commission); Ind. Code § 4-22-3-1 (public hearings of administrative bodies); Ind. Code § 4-9.1.-1-3(c) (public meetings of State Board of Finance); Ind. Code § 5-13-7-6(c) (public meetings of local Boards of Finance); Ind. Code § 5-12-1-21(c) (public meetings of Board for Depositories); Ind. Code § 20-26-4-3(d) (school corporation meetings must be open and are limited to certain locations); Ind. Code § 36-2-2-8(b) (county commissioner meetings subject to certain notice requirements and location limitations).
1. La. Rev. Stat. Ann. § 46:1073(B) (part of the "Enhanced Ability to Compete" Act) (discussion of "marketing strategies and strategic plans" of public hospitals may be held in executive session); See also, Op. Att'y Gen. 93-62; Op. Att'y Gen. 95-193; Op. Att'y Gen. 95-316; Op. Att'y Gen. 95-346 (applying § 46:1073(B)). Two related cases, St. Mary Anesthesia Assocs. Inc. v. Hosp. Serv. Dist. No. 2 of Parish of St. Mary, 836 So. 2d 379 (La. App. 1st Cir.), writ denied, 840 So. 2d 577 (La. 2003) and Joseph v. Hosp. Serv. Dist. No. 2 of the Parish of St. Mary, 805 So. 2d 400 (La. App. 1st Cir.), writ denied, 813 So. 2d 1088 (La. 2002), contested the constitutionality of La. Rev. Stat. Ann. § 46:1070-1076, the Enhanced Ability to Compete Act ("EACA"). The First Circuit held that the clear language of the Louisiana Constitution stated that the legislature had the authority to establish exceptions to the public's right to open meetings, and because Section 3 is not a "fundamental, inalienable right, in the sense of those enumerated rights under Article 1," the EACA exception was not unconstitutionally overbroad.
2. La. Rev. Stat. Ann. § 17:3390 (may entirely exempt certain university foundations).
Some state agencies or governmental bodies have their own requirements for open or closed meetings. If the meetings are designated as closed, the statutory basis must still fall within one of the permitted topics for executive sessions listed in 1 M.R.S.A. § 405. Examples include: legislative investigating committee meetings may be closed if so requested by a witness, 3 M.R.S.A. § 427; Commission of Governmental Ethics and Election Practices meetings are open unless six of the seven members want the meeting closed, 1 M.R.S.A. § 1005; confirmation hearings and pre-hearings are open unless the committee determines that the meeting should be closed to avoid damage to the nominee's reputation, 3 M.R.S.A. § 154; proceedings related to issuance, refusal, suspension or revocation of concealed firearms permits are closed unless the applicant requests that it be open, 25 M.R.S.A. § 2006(1); meetings of the Maine Drug Enforcement Advisory Board are open unless there is a discussion of pending investigations, 25 M.R.S.A. § 2957.
Other statutory provisions exist for specific kinds of meetings. See e.g. G.L. c. 71, § 42 (closing hearings on dismissal of tenured teachers). See also Kurlander v. School Committee of Williamstown, 16 Mass. App. Ct. 350, 451 N.E.2d 138 (1983) (tenured teacher unsuccessfully resisted closed hearing); O'Sullivan v. School Committee of Worcester, 411 Mass. 123, 579 N.E.2d 160 (1991) (teacher not entitled to be present at school committee's disciplinary deliberations).
A public body may close a meeting “when an open meeting would have a detrimental effect on the litigating position of the public agency.” Mont. Code Ann. § 2-3-203(4). A lawsuit must actually be filed before this statutory protection is provided. The mere threat of litigation does not trigger the right to close a meeting. However, a meeting cannot be closed to discuss litigation in which only public agencies are involved. Associated Press v. Bd. of Pub. Educ., 246 Mont. 386, 804 P.2d 376 (1991).
Closed sessions may be held only upon the affirmative vote of a majority of members of the public body, in open session. The entire motion, the vote of each member on the closure question, and the time when the closed session commenced and concluded, must be stated in the minutes. Closed session discussion is restricted to consideration of matters set forth in minutes as reason for closed session. Open session must be reconvened before any formal action may be taken. An individual member of the public body may challenge closure if discussion exceeds stated reason for closed session. A public body may not fail to invite members, or rely on chance meetings, social gatherings or electronic communications to circumvent statutory provisions. Neb. Rev. Stat. §84-1410.
A vote in open session without discussion, following closed session, may be mere rubber stamping of decisions actually reached in closed session, and violates Open Meetings Act. Grein v. Board of Education, supra. Good faith motivation is not cure for noncompliance with Open Meetings Act, nor is it defense to lawsuit seeking nullification of action taken at illegal closed session. Id.
1. Ethics commission meetings at which information concerning the propriety of the conduct of any public officer or employee is received may be closed. NRS 281.511(9).
2. Labor negotiations between public bodies and employees or their unions, including fact finding by negotiations, may be closed. NRS 288.220.
3. School board of trustee hearings concerning suspension or expulsion of students may be closed. NRS 392.467(3).
4. Investigative meetings of the Nevada Gaming Control Board may be closed. NRS 463.110.
At the completion of a closed meeting, the minutes of the next open meeting must state that the matters discussed in the closed meeting were limited only to those specified in the motion. The statement must be approved by the public body by individual vote. NMSA 1978 § 10-15-1(J).
Although government officials have attempted to read exclusions into the open meetings and open records laws based upon statutes that do not contain explicit exceptions, the North Dakota Supreme Court has resisted this effort. In Hovet v. Hebron Public School District, 419 N.W.2d 189, 191 (N.D. 1988), the court held that “an exception to the open-records law may not be implied.” Id.
The provisions of Ohio Rev. Code Chapter 1347 (known as the Privacy Act) shall not be construed to authorize a public body to hold an executive session for the discussion of personal information other than as authorized by Ohio Rev. Code § 121.22. Ohio Rev. Code § 1347.04.
Meetings of the board of trustees of the Ohio police and firemen's pension fund may be closed to discuss medical records. Ohio Rev. Code § 742.07.
Meetings of the state teachers retirement board, school employees retirement board, and state highway patrol retirement board may be conducted in executive session to discuss medical records. Ohio Rev. Code §§ 3307.09, 3309.09, 5505.04.
Parole board hearings are not subject to the open meetings statute. Ohio Rev. Code § 5149.101(C).
The state dental board's proceedings related to the investigation of a complaint or the determination of whether there are reasonable grounds to believe that a violation of law governing the practice of dentistry has occurred is confidential. Ohio Rev. Code § 4715.03.
The Ohio cemetery dispute resolution committee may conduct confidential meetings to consider the merits of a complaint before it. Ohio Rev. Code § 4767.06.
A hearing by the Ohio department of health on a nursing home administrator's attempt to transfer or discharge a resident is not subject to the open meetings statute. Ohio Rev. Code § 3721.162(B).
All proceedings of the board of county commissioners shall be public. Ohio Rev. Code § 305.09.
The meetings of a legislative authority of a municipality shall, at all times, be open to the public. Ohio Rev. Code § 731.46.
The Act specifically states that no public body "shall hold executive sessions unless otherwise specifically provided in this section." 25 O.S. § 307. This language is reinforced by the legislative mandate that if an executive session is proposed, the agenda shall "state specifically the provision of Section 307 of this title authorizing the executive session." 25 O.S. § 311.A.12.B.2.c. The Act does not contain any other provision which would provide a "catch-all" exemption allowing a closure of meetings as provided by law.
The legislature may meet in executive session in accordance with the state constitution and the rules of each house. S.C. Code Ann. § 30-4-70(e). Before going into executive session the public body must vote on a motion to enter into the session, and the specific purpose of the closed session must be stated if the vote is favorable. S.C. Code Ann. § 30-4-70(b). No action may be taken in executive session except to adjourn or return to public session. The public body may not commit to a course of action by the polling of members in executive session. Id.
Although the Act requires that meetings be open to the public, the Act does not require governing bodies to permit members of the public to speak, comment, or actively participate in the meeting. Whittemore v. Brentwood Planning Comm'n., 835 S.W.2d 11 (Tenn. Ct. App. 1992). It is not a violation of the Act for a governing body to order the removal of a person who is disrupting the meeting.
In several instances the Attorney General concluded certain discussions were not “meetings” subject to the Act because the discussion topics were not “public business.” In Tex. Att’y Gen. Op. No. H-223 (1974), the Attorney General determined an open discussion was not necessary for administrative proceedings held by the comptroller hearing division. The Attorney General cited taxation statutory provisions that expressly prohibited the comptroller from making information about a taxpayer’s affairs public in any manner. In Tex. Att’y Gen. Op. No. H-1154 (1978), the Attorney General advised that a county’s child welfare board could meet in a closed session “for the limited purpose of discussing case files where an open meeting would result in a violation of section 33 of (Tex. Rev. Civ. Stat. Ann.] article 695(c),” which made it unlawful for anyone to disclose any information about public assistance applicants or recipients. In Tex. Att’y Gen. Op. No. JC-108 (1999), the Attorney General advised that a hospital district’s proceedings as a medical peer review committee are exempt from the Act.
1. Meetings of the Health and Human Services Interim Committee and of the Child Welfare Legislative Oversight Panel to review fatality review reports, and their responses to such reports, must be closed. Utah Code § 52-4-205(2)(a)-(b). A meeting of a conservation district as defined in Section 17D-3-102 for the purpose of advising the Natural Resource Conservation Service of the United States Department of Agriculture on a farm improvement project must be closed if the discussed information is protected information under federal law. Id. 52-4-205(2)(c).
2. The following meetings also are exempt from the Open Meetings Act:
a. portions of meetings of the Board of Financial Institutions which concern confidential information pertaining to a particular financial institution, Utah Code § 7-1-203(5); and
b. meetings of judicial nomination commissions. Id. § 78A-10-103(7).
3. The following government entities are required specifically by statute to comply with the Open Meetings Act:
a. the Uintah Basin Revitalization Fund Board, id. § 35A-8-1605(2);
b. governing bodies of municipalities, id. § 10-3-601;
c. the House, Senate, and Legislative Management Committee, subcommittee, or interim committee, id. § 36-12-10;
d. the Department of Public Safety, id. § 53-1-105; and
e. the State Building Board. Id. § 63A-5-102.
4. Statutory requirements for public hearings.
a. A city must hold a public hearing on budgets tentatively adopted. Id. § 10-6-114.
b. A city must hold a public hearing before designating any street as a “mall.” Id. § 10-15-6.
c. The governing body of a special district must hold a public hearing on budgets tentatively adopted. Id. § 17B-1-610.
d. The governing body of a county must hold a public hearing on budgets tentatively adopted. Id. § 17-36-13.
e. The local school board must hold a public meeting to discuss its proposed budget. Id. § 53A-19-102.
f. The Board of Child and Family Services and the Child Abuse Advisory Council must conduct public hearings before purchasing or contracting for any child abuse or neglect prevention or treatment program or service. Id. § 62A-4a-306.
g. The Division of Parks and Recreation must conduct a public hearing before establishing any recreational trail. Id. § 79-5-304.
h. A county must hold a public hearing to discuss a proposed agricultural protection area. Id. § 17-41-304.
i. Before approving a plan for underground conversion of public utilities, the governing body of the county, city, or town must hold a public meeting to discuss the proposed improvements. Id. § 54-8-9. Notice must be published in a newspaper of general circulation, published on the Utah Public Notice Website, posted in at least three public places, and mailed to each property owner within the district. Id. § 54-8-10.
j. The governing body of a municipality that wishes to consolidate must hold a public hearing on the proposed consolidation. Id. § 10-2-606.
k. The Utah Constitutional Revision Commission may hold public hearings “that it considers advisable.” Id. § 63I-3-205.
l. The Utah Tax Review Commission “may hold public hearings it considers advisable.” Id. § 59-1-904.
m. “The county board of equalization shall meet and hold public hearings each year to examine the assessment roll and equalize the assessment of property in the county.” Id. § 59-2-1001(2).
5. Other statutory requirements.
a. All meetings of county legislative bodies shall be open to the public. Id. § 17-53-206.
b. Upon the filing of a formal complaint in a discipline matter, the filing of a petition for reinstatement, or the filing of a motion or petition for interim suspension, an attorney discipline proceeding is public, except as otherwise provided by a protective order. Utah R. Prof’l Prac. 15.
c. Meetings of the Property and Casualty Guaranty Association are open upon a majority vote of the Association’s board of directors. Id. § 31A-28-205(3).
d. Meetings of the Utah Health Data Committee are public, with some exceptions. Id. § 26-33a-103(10).
e. Meetings of the Alcoholic Beverages Control Commission are open, with some exceptions. Id. § 32B-2-201(10)(b).
f. All meetings of the State Money Management Council are open, with some exceptions. Id. § 51-7-16(4)(d).
g. Meetings of the Board of Financial Institutions are subject to the Open Meetings Act, except for discussion of confidential information pertaining to a particular financial institution. Id. § 7-1-203(5)(e).
h. Meetings of the Judicial Council are open to the public unless closed in accordance with the Code of Judicial Administration. Utah R. Jud. Admin. 2-103.
i. All state legislature sessions shall be public, except for Senate executive sessions. Utah JR-13.12.
j. News media representatives shall be admitted to the Senate and House chambers, halls, lounges, and committee rooms. With permission, the news media may conduct interviews in the lounges, halls, available committee rooms, or in the House chamber or gallery. Utah SR-33.06, Utah HR-33.06.
l. If a House committee chooses to hold a public hearing in addition to, or instead of, a regular committee meeting, the committee chair shall give notice of the meeting in accordance with the Open Meetings Act. Utah HR-24.14.
m. Visitors may attend House committee meetings so long as the number of people present does not exceed the maximum occupancy of the committee room. Utah HR-24.22. Visitors may not sit in legislators’ chairs and may not speak unless called upon by the chairman. Id.
1. Discussion Must be Limited: The discussion in the closed session shall be restricted to the matters identified in the motion to convene in closed session. Va. Code Ann. § 2.2-3712.C.
2. Voting in Closed Session: No action of a public body becomes official until it is acted on in an open meeting. Va. Code Ann. §§ 2.2-3710.A. and 2.2-3712.H. No resolution, ordinance, rule, contract, regulation or motion adopted, passed or agreed to in a closed meeting shall become effective unless the public body, following the meeting, reconvenes in open meeting and takes a vote of the membership on such resolution, ordinance, rule, contract, regulation or motion that shall have its substance reasonably identified in the open meeting. Va. Code Ann. § 2.2-3711.B.
3. Duty to Reconvene After Closed Session: At the conclusion of a closed session, the public body must reconvene in open session and shall take a roll call or recorded vote certifying that to the best of each member's knowledge the matters discussed were those exempted from the Act's requirements and were identified previously in the motion to convene in closed session. Va. Code Ann. § 2.2-3712.D.
Before convening an executive session, the presiding officer must publicly announce both the purpose for excluding the public and the time at which the executive session is to conclude. RCW 42.30.110(2). There is no similar requirement with respect to meetings to which the Act does not apply. Minutes are not required during closed or executive sessions; however, if such minutes are made they must be made promptly.
A few specific statutes mandate certain proceedings be open or closed to the public. As in the case of public record statutes, discussed in the preceding section of this outline, these provisions may create a greater right of public access to particular proceedings.
Several statutes require "all meetings" of particular agencies to be open to the public. These include the Public Energy Authority (W. Va. Code § 5D-1-21), the Community Infrastructure Authority (W. Va. Code § 31-19-19), the Railroad Maintenance Authority (W. Va. Code § 29-18-23), and the Water Development Authority (W. Va. Code § 20-5C-21). Except for the Railroad Maintenance Authority Act, all of these statutes require the public agency to maintain the confidentiality of any "information relating to secret processes or secret methods of manufacture or production" and presumably these agencies could close portions of their meetings if necessary to comply with this mandate. However, the other exceptions in the Open Meetings Act apparently are not available to these bodies.
Most statutes that mandate confidentiality of particular proceedings are confined to judicial or adjudicatory proceedings, which, in any event, would not be subject to the Open Meetings Act. These statutes preclude public access to actions for divorce, W. Va. Code § 48-2-27, or adoption, W. Va. Code § 48-4-10, as well as juvenile proceedings, W. Va. Code § 14-2A-17, § 49-5-17. Additionally, grievance proceedings for employees of boards of education (W. Va. Code § 18-29-3) and for public employees (W. Va. Code § 29-6A-3), and meetings of medical peer review proceedings (W. Va. Code § 30-3C-3) are required by statute to be closed to the public, unless the involved individuals request a public proceeding.
In 1999, the West Virginia Legislature enacted amendments to the West Virginia Open Hospital Proceedings Act. Prior to the amendments, the statute simply provided that the public non-profit hospital boards were subject to the same requirements as other governing bodies covered by the Open Meetings Act, (W. Va. Code §§ 16-5G-1et seq.) The amendments provide comprehensive guidance relating to such hospital meetings, displacing its former reliance upon the Open Meetings Act. In many respects the new provisions of the amended hospital act adopt provisions of the Open Meetings Act as it was constituted prior to its 1999 amendments. Thus, one interested in issues relating to meetings of public non-profit hospital boards must look to the Open Hospital Proceedings Act rather than the generally applicable Open Meetings Act for guidance. See, e.g., Hamrick v. Charleston Area Medical Center, Inc., 648 S.E.2d 1 (W. Va. 2007) (“The definition of ‘governing body’ that was added to the Hospital Act in 1999 closely tracks the definition used in the 1982 Open Meetings Act, with the word ‘hospital’ substituted for the words ‘public body.’ ”)