C. Court mandated opening, closing

The amended Alabama Open Meetings Act took effect in 2015. There have not yet been any court mandated additions or exceptions to the Act.

In criminal proceedings involving the prosecution of an offense committed against a child under the age of 16, or witnessed by a child under the age of 16, the court on its own motion or on the motion of the party presenting the witness or the guardian ad litem of the child, may order that the testimony of the child be taken by closed circuit television or through one-way mirrors if the court determines that the testimony by the child victim or witness under normal court procedures would result in the child's inability to effectively communicate. In making this determination, the court is to consider such factors as the child's age, level of development, general physical health; any physical, emotional or psychological injury experienced by the child; and the mental or emotional strain that will be caused by requiring the child to testify under normal courtroom procedures. AS 12.45.046(a).

When the provisions of the OML are violated, “a court of competent jurisdiction may issue a writ of mandamus requiring that a meeting be open to the public.”  A.R.S. § 38-431.04.

This action is now accomplished through a statutory special action directed at the public body.

Exemptions to the FOIA can be created only by statute. Accordingly, the courts are not free to fashion their own exemptions via the common law. Laman v. McCord, 245 Ark. 401, 432 S.W.2d 753. However, a court may presumably order that a meeting be closed in order to protect an individual’s constitutional right to privacy. See McCambridge v. City of Little Rock, 298 Ark. 219, 766 S.W.2d 909 (1989). This right is not absolute and must at times yield to societal interests in disclosure. Ark. Op. Att’y Gen. No. 96-009. See also Ark. Op. Att’y Gen. No. 87-478 (student’s right to privacy not violated by public hearing).

Under both the Bagley-Keene and Brown Acts, a court may grant mandamus, injunctive or declaratory relief to stop or prevent violations, or threatened violations, of the Acts, or to determine the application of the Acts to ongoing actions, threatened future actions, or past actions. Cal. Gov't Code §§ 11130 (Bagley-Keene Act), 54960 (Brown Act). A court may also invalidate the body's decision in certain circumstances. Cal. Gov't Code §§ 11130 (Bagley-Keene Act); 54960.1 (Brown Act). In addition, the court has discretion to award court costs or attorneys' fees to a prevailing plaintiff. Cal. Gov't Code §§ 11130.5 (Bagley-Keene Act), 54960.5 (Brown Act). Pursuant to one of these avenues for relief, a court may direct a meeting to be opened or closed, depending on the nature of the relief requested.

Where a public agency or board considers matters declared confidential by statute, the Open Meetings Act does not preclude consideration of such matters in executive sessions closed to the public. Gillies v. Schmidt, 38 Colo. App. 233, 556 P.2d 82 (1976); see Colo. Rev. Stat. §§ 24-6-402(3)(a)(III) and 24-6-402(4)(c) (executive session allowed to consider matters required to be kept confidential by federal or state law). A person seeking access to the records may apply to the court which shall conduct an in camera review of the records of the executive session. If the court determines that the action taken in executive session contravened the law, it shall order those portions of the recorded executive session be open to the public. Colo. Rev. Stat. § 24-72-204(5.5)(II)(C).

Thus, where an Inter-Agency Committee on Child Abuse held closed meetings to consider child abuse reports and records which are declared confidential by statute, the Open Meetings Law did not require public meetings where such confidential reports were considered. Gillies v. Schmidt, supra.

An appeal from a decision of the FOIC may be taken to the Superior Court. The procedure for such an appeal is discussed above. Records Outline at V.D.

Courts may not create exemptions to open meetings that are not found in the Act. 29 Del. C. § 10004(a).

If a court finds that a public body plans to hold a closed meeting or portion of a meeting in violation of § 2-579(d) of the Open Meetings Act, it may enjoin the public body from closing the meeting or portion of the meeting; order that future meetings of the same kind be open to the public; or order that the record of the meeting be made public.  D.C. Code Ann. § 2-579(c).  There are no provisions allowing a court to order that a meeting be closed.

The judiciary has no constitutional or statutory authority to create general “public interest” exemptions to the open meetings requirement. Neu v. Miami Herald Publ’g Co., 462 So. 2d 821 (Fla. 1985) see also Bd. of Pub. Instr. v. Doran, 224 So. 2d 693 (1969); City of Miami Beach v. Berns, 245 So. 2d 38. The Neu opinion was rendered in the context of governmental meetings with agency attorneys, and it overrules Times Publishing Co. v. Williams, 222 So. 2d 470 (Fla. 2d DCA 1969); cf. Wait v. Fla. Power & Light Co., 372 So. 2d 420 (Fla. 1979) (courts may not create exemptions to Public Records Law).

Superior courts have jurisdiction to enforce compliance with the Act, including the power to grant injunctions or other equitable relief. O.C.G.A. § 50-14-5(a).

Courts can mandate that meetings be opened or closed.

There are no known reported Idaho judicial decisions either closing public meetings otherwise subject to the Open Meeting Law or ordering that executive sessions be opened to the public.  At least two appellate decisions have found that governing bodies violated the provisions of the Open Meeting Act by not allowing the public to meaningful observe such meeting (Noble v. Kootenai County, 148 Idaho 937, 231 P.3d 1034 (2010)) and violating the executive session provisions (State v. Yzaguirre, 144 Idaho 471, 163 P.3d 1183 (2007).

There are no provisions in the Act for court mandated opening or closing of meetings, aside from court-ordered relief upon challenge to a public body’s decision to close a meeting.

There are no reported cases in which a court has added categories for executive sessions or invalidated the categories set by the legislature. In terms of interpreting the categories of exceptions, Indiana courts have recognized that effectuating the legislative intent behind the Open Door Law requires that “all doubts must be resolved in favor of requiring a public meeting and all exceptions to the rule requiring open meetings must be narrowly construed.” Gary/Chicago Airport Bd. of Auth. v. Maclin, 772 N.E.2d 463, 468 (Ind. App. 2002).

No decision creating new, non-statutory exemptions has been found. Court decisions concerning the propriety of closing specific meetings are discussed throughout the materials.

No court mandated opening, closing.

There are no court-made exemptions or requirements that certain categories of meeting be open.

None that we are aware of, although of course the courts may mandate access to certain governmental proceedings pursuant to the First Amendment, the Louisiana Constitution, or the common law.

Discovery of proceedings of closed meeting

The proceedings of a closed meeting or executive session are discoverable. See Connick v. Brechtel, 713 So.2d 583 (La. App. 4th Cir. 1998). In Connick, the District Attorney brought suit against members of the Orleans Parish School Board for violation of the Open Meeting Law, alleging members made a binding decision with regard to the superintendent's employment while in executive session. See La. Rev. Stat. Ann. § 42:10(B) (district attorney enforces Open Meeting Law for the district he serves). Board members refused to be deposed on the contents of the executive session, in response to which the District Attorney moved for, and the trial court granted, a motion to compel. School Board argued on appeal that the entire executive session was privileged from discovery, or in the alternative, that such portions of the session as dealt with "the character, professional competence, or physical or mental health of a person" — as per the exemption from the Open Meeting Law provided by La. Rev. Stat. Ann. § 42:6.1(A)(1) — were privileged. The Fourth Circuit held, to the contrary, "the fact that some matters may be discussed in executive session does not render the School Board's discussions and actions taken in executive session privileged. Such a rule would completely nullify Louisiana's Open Meetings Law. . . ." A concurring judge pointed out that "[a] substantial purpose of the executive session exceptions is to provide for unimpeded discussion at the time of the discussion. After the fact discovery of such discussion is not the same impediment to discussion as contemporaneous disclosure would be." The court ordered members to submit to deposition and other discovery without any privilege whatsoever and denied a motion for a protective order restricting the District Attorney's disclosure of information within the provenance of section 42:6.1(A)(1).

The Legislature, not the Courts, controls whether a body may meet in executive session.

Section 3-305(b)(13) provides for constitutional, statutory or judicially mandated closure. Section 3-401(d)(2) permits the court to enjoin a public body from violating the open session requirements.

The Superior Court has on occasion set aside such action and ordered actions taken to be reconsidered in open session. No instance is known where a court ordered a meeting closed; however, one court has suggested that a failure to hold a closed session can constitute bad faith in collective bargaining negotiation. Bd. of Selectmen of Marion v. Labor Relations Comm’n, 7 Mass. App. Ct. 360, 388 N.E.2d 302 (1979).

Not specified.

No court decisions mandate open or closed meetings separate from the Open Meeting Law.

1. "[I]n prosecutions for rape, adultery, fornication, sodomy or crime against nature the court may, in its discretion, exclude from the courtroom all persons except such as are necessary in the conduct of the trial." Miss. Const. of 1890 art. 3, § 26. In Globe Newspaper Co. v. Superior Court,457 U.S. 596, 608 n.22 (1982), the United States Supreme Court expressly reserved the question of whether this clause is constitutional under the First Amendment.
2. "The general public shall be excluded [from Youth Court hearings] and only those persons who are found by the youth court to have a direct interest in the cause or work of the youth court. Any person found by the youth court to have a direct interest in the cause shall have the right to appear and be represented by legal counsel." § 43-21-203(6).
3. On closure of court proceedings generally in Mississippi, see In re Gannett River States Publ'g Corp.,630 So. 2d 351 (Miss. 1994); Gannett River States Publ’g Co. v. Hand,571 So. 2d 941 (Miss. 1990); Miss. Publishers Corp. v. Coleman, 515 So. 2d 1163 (Miss. 1987).

The courts have not created judicial exceptions to the open meetings law.

No statutory or case law governing this issue.

There are no statutory provisions for court mandated closing of meetings.

The Nevada Supreme Court has clarified that votes must occur in open meetings, even if the vote is related to an issue discussed in a validly closed meeting. McKay v. Board of Supervisors, 102 Nev. 644, 730 P.2d 438 (1986).

The Statute does not address this issue.

1. 1:2-1 provides:

All trials, hearings of motions and other applications, first appearances, pretrial conferences, arraignments, sentencing conferences (except with members of the probation department) and appeals shall be conducted in open court unless otherwise provided by rule or statute. If a proceeding is required to be conducted in open court, no record of any portion thereof shall be sealed by order of the court except for good cause shown, as defined by R. 1:38-11(b), which shall be set forth on the record. Settlement conferences may be heard at the bench or in chambers. Every judge shall wear judicial robes during proceedings in open court.

No reported New Mexico cases mandating (additional) open or closed meetings except pursuant to the statutory framework and court rules.

The court’s powers with regard to open meetings are powers of enforcement under the OML. N.Y. Pub. Off. Law § 107(1) (McKinney 1988) (“any aggrieved person shall have standing to enforce the provisions of this article against a public body by the commencement of a proceeding pursuant to article seventy-eight of the civil practice law and rules, and/or an action for declaratory judgment and injunctive relief”).

Under the language of the OML, the court, in its discretion and upon good cause shown, may declare void any action taken in violation of the statute. N.Y. Pub. Off. Law § 107(1) (McKinney 1988). The court also may order future meetings open to the public, enjoin a public body from proceeding contrary to the provisions of the OML, and use its contempt powers for persistent violations of the law. See, e.g., Goetschius v. Bd. of Educ. of Greenburgh Eleven Union Free Sch. Dist., 281 A.D.2d 416, 721 N.Y.S.2d 386 (2d Dep’t 2001) (The intermediate appellate court interpreted the Open Meetings Law liberally in accordance with the statute’s purposes and concluded that a school district’s Board of Education had engaged in a persistent pattern of deliberately violating its letter and spirit by improperly convening executive sessions and conducting official business in a manner inaudible to the public audience. Accordingly, the appellate court affirmed the trial court’s annulment of the Board’s determinations made in violation of the Open Meetings Law and also upheld an award of attorneys’ fees to petitioners.); Orange Cty. Publications v. Cty. of Orange, 120 A.D.2d 596, 502 N.Y.S.2d 71 (2d Dep’t 1986), appeal dismissed, 68 N.Y.2d 807, 498 N.E.2d 437, 506 N.Y.S.2d 1037 (1986) (“inasmuch as the respondents have been directed to comply with the OML by court orders, we find the respondents, in their persistent dereliction of the mandates of the statute, to be in contempt of court”); Orange Cty. Publications v. Cty. of Orange, No. 5686/78 (Sup. Ct., Orange Cty., Dec. 26, 1978) (enjoining the Orange County legislature from convening any executive session without first complying with the OML and further enjoining the legislature from excluding the public and press from meetings except legitimately convened executive sessions).

No decisions except in context of Open Meetings Law.

No reported Ohio decision required a public body to close a meeting that it was going to open.

Ohio courts have stated that the following should have been open to the public:

• back-to-back repetitive sessions of groups of a municipal council numbering fewer than a majority at each session, State ex rel. Cincinnati Post v. City of Cincinnati, 76 Ohio St. 3d 540, 668 N.E.2d 903 (1996);

• meetings of a full city council where a municipal charter required all meetings to be open, e.g., State ex rel. Plain Dealer Publishing Co. v. Barnes, 38 Ohio St. 3d 165, 527 N.E.2d 807 (1988);

• a "retreat" or "workshop" at which a majority of the members of a county board of commissioners and a township board of trustees discussed public business with a majority of the council of a municipality, State ex rel. The Fairfield Leader v. Ricketts, 56 Ohio St. 3d 97, 564 N.E.2d 486 (1990);

• a school board session to discuss anticipated budget cuts that would affect the number of people employed by the school district, Gannett Satellite Info. Network v. Chillicothe City School Dist., 41 Ohio App. 3d 218, 534 N.E.2d 1239 (1988);

• a committee appointed by a municipal council to make recommendations, Maser v. City of Canton, 62 Ohio App. 2d 174, 405 N.E.2d 731 (1978).

There have been no cases where a court has mandated a meeting be opened or closed.

There are no provisions for this kind of required closure of public meetings in Oregon.

None.

A court could, within the scope of injunctive relief available under the act, order a meeting to be held open to the public.

It is possible.

The Tennessee Supreme Court in Smith County Education Ass'n v. Anderson, 676 S.W.2d 328 at 335 (Tenn. 1984), held the attorney-client privilege to be a constitutionally required exception to protect discussion between governmental bodies and their attorneys concerning pending litigation. The court held that because the legislature has no authority to enact laws that interfere with the judicially imposed duty on an attorney to maintain clients' confidences and secrets, a construction of the Act requiring abrogation of this duty is an unconstitutional breach of the separation of powers and authority doctrines. Id. at 334. This attorney-client exception is a "narrow" one applying only when "the public body is a named party in a lawsuit" and only when the discussions in the meetings deal with "present and pending litigation." Id. at 334-35. In another similar case, the Tennessee Supreme Court continued to adhere to the Smith doctrine. Van Hooser v. Warren County Bd. of Education, 807 S.W.2d 230 (Tenn. 1991). The Court held that the school board properly conducted a closed meeting to discuss a pending controversy pertaining to a suspended school teacher. The Court seems to have eased the requirement that a group be a named party to a lawsuit to close a discussion. However, for the attorney-client privilege exception to apply, the group must actually be discussing only the pending controversy with its attorney in the closed session. Once any discussion begins concerning other matters, the meeting must be open to the public. In another case, during a public session of a school board meeting, members of the board recessed to discuss the matter at hand with their counsel. Immediately after reconvening, the board voted on the matter without verbalizing or discussing it. The court held that because this private meeting with counsel concerned a pending controversy that might result in litigation, the meeting did not violate the Act. Baltrip v. Norris, 23 S.W.2d at 341.

None identified.

The Utah Supreme Court has held that the deliberation phase of quasi-judicial proceedings conducted by state agencies may be conducted in secret. Common Cause of Utah v. Utah Pub. Serv. Comm’n, 598 P.2d 1312, 1315 (Utah 1979). The court ruled, however, that the fact-finding portion of the agency’s quasi-judicial proceeding must be conducted in public. Id.; see also Dairy Prod. Serv. Inc. v. City of Wellsville, 2000 UT 81, ¶ 61, 13 P.3d 581 (City Council deliberations on business license renewal could be closed where the information-gathering procedure and the final decision were conducted in public); Andrews v. Utah Bd. of Pardons, 836 P.2d 790, 792-93 (Utah 1992) (Board of Pardons’ deliberations on commutation petition may be conducted in secret, but information-gathering proceedings must be open).

The Open Meetings Act is not applicable to meetings held by the Utah State Retirement Board. Ellis v. Utah State Retirement Bd., 757 P.2d 882, 888 (Utah Ct. App. 1988). Also, the issuance of certificates of zoning compliance and building permits is an administrative action to be performed by a zoning administrator (or his or her representative) and by the building inspector, respectively. Because this issuance is merely an administrative action, the topic is not one required to be discussed in an open meeting and thus does not fall under the Open Meetings Act. Harper v. Summit County, 2001 UT 10, ¶ 38, 26 P.3d 193.

None, except that, in an appropriate case, a court may issue an injunction or grant declaratory relief stating that a meeting shall be open. See 1 V.S.A. § 314(c).

No decisions have mandated that specific future meetings be open or closed. Instead, courts have ruled that based on the facts before them closed meetings did or did not violate the Act. See, e.g., Columbia Riverkeeper v. Port of Vancouver USA, 188 Wn.2d 421, 395 P.3d 1031 (2017); Miller v. City of Tacoma, 138 Wn.2d 318, 979 P.2d 429 (1999) (City Council members’ informal balloting to fill commission position should have occurred in an open meeting instead of the closed executive session); Protect the Peninsula’s Future v. Clallam Cnty., 66 Wn. App. 671, 833 P.2d 406 (1992) (executive session was improper where review of shoreline permit application involved matter of substantial importance to the public); Walla Walla Union-Bulletin v. Walla Walla Cnty. Comm’n, 15 Media L. Rep. 1208 (1988) (closed commission meeting violated OPMA); Port Townsend Publ’g Co. v. Brown, 18 Wn. App. 80, 567 P.2d 664 (1977) (no violation where closed session of county commission involved Comprehensive Employment and Training Act).

As discussed previously, the open courts mandate of the state constitution provides a broad right of public access to judicial and quasi-judicial proceedings.

The state Supreme Court has held that this provision creates a "fundamental constitutional right of access" to civil and criminal judicial proceedings, as well as to the records and proceedings of quasi-judicial agencies. The court has relied on this provision to rule that disciplinary hearings held by the licensing bodies for attorneys and physicians, based upon charges of professional misconduct or incompetence, must be open to the public. The public also must be given access to "all reports, records, and nondeliberative materials introduced at such hearings, including the record of the final action taken." Daily Gazette v. W. Va. State Bar, 176 W. Va. 550, 326 S.E.2d 705, 706 (1984); Daily Gazette v. W. Va. Board of Medicine, 177 W. Va. 316, 352 S.E.2d 66, 70 (1986). These rulings apply to all agencies exercising quasi-judicial powers.

In addition, the state constitution provides greater public access to actual judicial proceedings than does the federal constitution. In State ex rel. the Herald Mail Company v. Hamilton, 165 W. Va. 103, 267 S.E.2d 544 (1980), the Supreme Court of Appeals held the state constitution "confers an independent right on the public to attend civil and criminal trials, and not simply a right in favor of the litigants to demand a public proceeding." 267 S.E.2d at 548 (citations omitted). And in its State Bar decision, the court outlined the scope of the open courts mandate:

This fundamental constitutional right of access is not limited to formal trials but extends to other types of judicial and quasi-judicial proceedings. For example, in Hamilton, 267 S.E.2d at 551, this court recognized a public right of access to pretrial hearings in criminal cases. See also Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 104 S. Ct. 819, 78 L. Ed. 2d 629 (1984) (first amendment right of access to pretrial voir dire); Sentinel Star Co. v. Edwards, 387 So. 2d 367 (Fla. App. 1980) (common law right of access to post-trial hearing concerning juror interview); Herald Co. v. Weisenberg, 89 A.D.2d 224, 455 N.Y.S.2d 413 (1982), aff'd, 59 N.Y.2d 378, 465 N.Y.S.2d 862, 452 N.E.2d 1190 (1983) (right of access to unemployment compensation hearing); In re Estate of O'Connell, 90 Misc. 2d 555, 394 N.Y.S.2d 816 (1977) ("open courts" statute requires examination of witness in will contest in surrogate's court to be public proceeding); In re Petition of Daily Item, 310 Pa. Super. 222, 456 A.2d 580 (1983) (right of access to preliminary hearings based upon "open courts" provision); Cohen v. Everette City Council, 85 Wash. 2d 385, 535 P. 2d 801 (1975) ("open courts" provision held to preclude sealing of transcript of city council's license revocation proceeding by court that reviewed transcript on appeal); State ex rel. La Crosse Tribune v. Circuit Court, 340 N.W.2d 460 (Wis. 1983) ("open courts" statute applied to voir dire proceedings).

Daily Gazette v. W. Va. State Bar, 326 S.E.2d at 710 n. 9.

There are no court-created or common-law exemptions to the requirements of the Open Meetings Law.

The Public Meetings Law does not address this issue.