III. Meeting categories - open or closed

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Both Acts expressly state that unless specifically provided for in the open meeting acts and other specifically designated statutes, no closed session may be held by any state body or legislative body of any local agency. Cal. Gov't Code §§ 11132 (Bagley-Keene Act), 54962 (Brown Act).

The California Constitution requires the court to "narrowly construe" the closed session exemptions to the open meeting provisions. See Cal. Const., art. I., § 3(b)(2) ("[a] statute . . . shall be . . . narrowly construed if it limits the right of [public] access" to government records and proceedings).

Under the Brown Act, the legislative body may not stray into topics not listed on the agenda and not expressly permitted for closed session, even if those topics are "reasonably related" to the posted agenda item or topic permitted for closed session. Cal. Gov't Code § 54956 ("No other business shall be considered at these meetings by the legislative body."); Shapiro v. San Diego City Council, 96 Cal. App. 4th 904, 924, 117 Cal. Rptr. 2d 631 (2002).

In Shapiro, the San Diego City Council stated on its agenda that it would meet in closed session to discuss real estate negotiations — which are permitted for closed session — for a new baseball stadium. Id. at 908. But the City Council moved beyond the real estate negotiations topic, and discussed a wide variety of related topics, including the architectural design for the stadium, an environmental impact report, traffic issues, naming rights, and the impact the project would have on the homeless. Id. at 923-24. The City argued that the Brown Act permitted such "background deliberations" because they were "reasonably related" to the real estate negotiations listed on the agenda. Id. at 922. But the court disagreed, holding that the City Council violated the Brown Act when its deliberations "range[d] far afield" of the listed agenda item. Id. at 924.

The litigation provision is most likely to be abused by legislative bodies. As the California Attorney General has instructed, "[i]t should also be emphasized that the purpose of [pending litigation] exception is to permit the body to receive legal advice and make litigation decisions only; it is not to be used as a subterfuge to reach nonlitigation decisions." The Brown Act: Open Meetings for Local Legislative Bodies (Cal. Att'y Gen. 2003 ed.) at 40 (citing 71 Ops. Cal. Att'y Gen. 96, 104-105 (1988)).

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The Open Meetings Act specifies limited categories of meetings that may be closed; all other types of meetings must be open.

Agencies subject to the Act are not permitted to exclude the public from any portion of any meeting unless authorized to do so by a specific statutory exception, O.C.G.A. § 50-14-1(b)(1), and then only by majority vote taken in a properly noticed and open meeting, § 50-14-4(a).

Other categories: Planning.

The Sunshine Law expressly applies to the Land Use Commission; its meetings must be open to the public. Haw. Rev. Stat. § 92-6(b).

Maui Corporation Counsel held that an "informational meeting" between the Planning and Land Use Committee of the Maui County Council and members of the Kihei-Makena Citizens Advisory Committee did not violate the Sunshine Law. Because it was not the Land Use Commission, the rules of the council, not Section 92-6(b), governed its conduct. Maui Corp. Counsel Op. (Sept. 27, 1985).

Only those meetings which concern topics described in the ten categories contained in Idaho Code §§ 74-206(1)(a)-(j) are properly conducted in executive session. All other meetings must be conducted in open session.

Kentucky’s Open Meetings Act exempts certain categories of meetings and allows public agencies to conduct them in closed session. See Ky. Rev. Stat. 61.810(1)(a) through (n).

Excluding the privacy exception, there are no rules, judicially or legislatively imposed, that exempt certain discussions from the Montana open meetings law. Rather, the court will examine on a case-by-case basis the necessity for closing the meeting and the presiding officer's determination that the demand of individual privacy clearly exceeds the merits of public disclosure. The Montana Supreme Court, in that regard, has determined that the Montana Board of Regents may close its meeting when discussing matters related to the qualifications of individual applicants for presidency of any of the branches of the Montana University System. Missoulian v. Board of Regents, 207 Mont. 513, 675 P.2d 962 (1984). In construing the "individual privacy" provision of the Montana Constitution, the Montana Supreme Court has refused to extend the privacy protection to corporations. See Great Falls Tribune v. Mont. Pub. Serv. Commn., 319 Mont. 38, 82 P.3d 876 (2003).

In Associated Press v. Crofts, 321 Mont. 193, 89 P.3d 971 (2004), media organizations brought an action against the Commissioner of Higher Education, seeking a declaration that the meetings between the Commissioner and the state university policy committee, which was made up of senior university employees, were subject to open meetings laws and enjoining Commissioner from excluding the public from meetings. The Montana Supreme Court held that the meetings between the Commissioner and the university policy committee were subject to open meetings laws, and that the media organizations were not entitled to attorney’s fees.

In Goldstein v. Commission on Practice of Supreme Court, 297 Mont. 493, 995 P.2d 923 (2000), the Montana Supreme Court held that confidentiality provisions of Rules on Lawyer Disciplinary Enforcement did not violate an attorneys' right to know or right to participate in government decisions by excluding attorney from the deliberations of Commission on Practice following the filing of formal complaint and held that Commission was not subject to open meeting requirements and sat in only advisory capacity to Supreme Court.

A woman who would testify in a personnel disciplinary proceeding that she had sex with the police chief in or near the patrol car while the chief was on duty had a constitutionally protected right of privacy which exceeded the merits of public disclosure, and the meeting could be closed. Goyen v. City of Troy, 276 Mont. 213, 915 P.2d 824 (1996).

The Montana Supreme Court has not yet addressed extension of the Montana open meetings law to hospital board discussions of patients, parole board meetings, or any other deliberation involving questions related to individual privacy. However, given the predilection of the court to protect individual privacy, any determination to close a meeting based upon privacy considerations will not likely be overturned.

Negotiations and collective bargaining of public employees. In Motta v. Philipsburg School Bd. Trustees, 323 Mont. 72, 98 P.3d 673 (2004), a citizen brought an action against a school district, alleging violation of open meeting laws. The district court granted the citizen's motion for partial summary judgment, but refused to void the collective bargaining agreement reached at the school board meeting, and did not award the citizen his costs. On appeal, the Montana Supreme Court held that the trial court did not abuse its discretion when it refused to void the agreement reached at the meeting held in violation of open meeting laws; remand was necessary so that district court could determine whether to award citizen his costs; and citizen prevailed, even though he did not receive all of the remedy he desired, and thus it was up to discretion of district court to determine whether to award citizen his costs.

Note: The Act bases access on the type of agency action undertaken, not on the particular agency or the subject matter of the action. Hence, specific meeting categories are not particularly helpful.

Again, there is nothing more in the Vermont open meeting statute than what is discussed above. If there is no specific authorization for an executive session, or there is no express statutory exemption from the law, any meeting of any “public body” must be open no matter what the particular topic.