Open Records/Meetings

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Introduction

What do the Open Records and Meetings Laws Require?

• All records and meetings of a public entity are open unless otherwise specifically provided by law.
• Purpose - to enable the public to determine how public business is being handled and how public funds are being spent.
• Interpreted broadly in favor of public access.
• Exceptions - in state statutes, and federal laws and regulations. Exceptions narrowly construed.

How are the Open Records and Meetings Laws Enforced?

• Violation - no longer a criminal offense.
• Administrative review by Office of Attorney General is available.
• Civil court actions authorized with a wide array of potential remedies.

Administrative Review.

• Interested persons may request Attorney General's opinion within 30 days of an alleged violation of:
  • the open records or meetings laws;
  • the procedures to hold closed or confidential meetings;
  • notice requirements;
  • voting and minutes requirements.
• Opinion is issued to public entity based on facts it provides.
• If Attorney General concludes violation has occurred, entity has seven days to comply or be subject to mandatory attorney's fees and costs if entity loses lawsuit.
• State entity that fails to comply with the opinion pays for its own defense if sued.

Civil Court Actions and Remedies.

• Civil action authorized if brought within 60 days. Remedies include declaratory relief, injunctions, attorney's fees and costs.
• $1,000 actual damages, whichever is greater, can be imposed for intentional or knowing violations.
• Court may void actions taken at illegal meetings.
• Public entity must be given three days' notice and opportunity to cure violation before being sued for attorney's fees or damages.
• Violations can be corrected before civil action is filed if no person harmed by the delay.

Terminology.

• Classes of records and meetings:
  • Open - must be disclosed.
  • Exempt - not required to be disclosed, but not prohibited from being open. Public entity has discretion.
  • Confidential - public disclosure prohibited.
  • Closed - exempt records or meetings not opened to the public.
  • Executive session - portion of a meeting that is confidential or closed.

What is a Record or Meeting?

• Meeting = Public Entity + Public Business + Governing Body + Gathering
• Record = Public Entity + Public Business + Recorded Information
• Public Entity and Public Business are elements of both definitions.

What is a Public Entity?

• Governmental entity - entity created or recognized by state law, resolution, ordinance, rule, bylaw or executive order, of:
  • the State, or
  • a political subdivision, including counties, cities, townships, school districts, park districts, rural fire protection districts, water resource districts, solid waste management authorities, rural ambulance service districts, irrigation districts, hospital districts, soil conservation districts, recreation service districts, railroad authorities, and district health units.
• Nongovernmental entity - private organization supported by or expending public funds.

What Nongovernmental Entities are Covered?

• Organizations "supported in whole or in part" by public funds.
  • "Supported in whole or in part" applies only to exchanges where organization receives public funds exceeding fair market value of goods or services given to public entity.
  • "Supported in whole or in part" does not include grants under authorized economic development programs.
• Organizations expending public funds.

Public Business.

• Matters that relate to public entity's performance of a governmental function, including supervisory or advisory functions.
• Matters that relate to public entity's use of public funds.

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Meetings

What is a Meeting?

• Any gathering of a quorum of members of a governing body of a public entity regarding public business.
  • Includes work sessions and video or telephone conferences.
  • Does not include chance or social gatherings if public business is not considered, or attendance at meetings of an association to which the public entity or individual members belong.
• Any series of smaller gatherings intended to avoid the law.

What is a Governing Body?

• Multimember body responsible for making a collective decision on behalf of a public entity.
• Any other group, regardless of membership, acting collectively pursuant to authority delegated to the group by a governing body.
  • Includes committees.
  • Usually does not include staff meetings.

Filing and Posting of Notice.

• For regularly scheduled meetings, the annual schedule must be centrally filed in January.
• When members of governing body are notified of the meeting:
  • post notice at the entity's main office, and
  • file at designated central location.
• On the day of the meeting, post notice at the location of the meeting.
• Notice of emergency or special meetings also given to entity's official newspaper, if any, and any media who have requested it.
• Publication generally not required.

Contents of Notice.

• Notice of every meeting, including executive sessions, must contain:
  • date, time, and location;
  • topics to be considered, where practicable; and
  • general subject matter of any executive session expected to be held during the meeting.
• Notice of telephone or video conferences must also include location of speaker or monitor.
• Notice should also include a phone number for arranging special accommodations.
• Topics discussed at an emergency or special meeting limited to those included in the notice.

How Do You Conduct an Open Meeting?

• Meetings are almost always open.
• Provide notice of the meeting.
• Hold the meeting in a room of sufficient size to accommodate the number of persons reasonable expected to attend.
• Meetings can be held electronically, such as through phone or video conferencing, but a monitor or speaker must be available at location specified in the notice.
• Keep minutes of the meeting.
• Allow public to photograph, record electronically, or broadcast live, without prior approval, if there is no active interference with the conduct of the meeting.

Voting and Minutes.

• Recorded roll call votes are required for:
  • all votes pertaining to the merits of the matter;
  • any procedural votes upon request of any member of the governing body.
• Minutes must be kept of all open meetings and include:
  • names of members attending the meeting;
  • date and time the meeting is held;
  • description of each motion made and whether it was seconded;
  • results of every vote; and
  • vote of each member on recorded roll call votes.
• Disclosure of minutes may not be conditioned on final approval of the minutes.

Violations.

• The open meetings law is violated when a person is denied access to a meeting.
• The notice requirements are violated when a meeting is held and notice is not provided in substantial compliance with the law.

Executive Sessions.

• To hold an executive session, the governing body must:
  • pass a motion in an open meeting to hold an executive session;
  • announce in open session the topics to be considered in executive session and the legal authority of the session;
  • record the executive session;
  • limit the executive session to the announced topics; and
  • take final action in open session.
• Minutes of an open meeting during which an executive session is held must indicate:
  • the members who attended the session;
  • when the session was held;
  • the general topics considered; and
  • the legal authority for the executive session.
• Remainder of the meeting is open.

Recording Executive Sessions.

• All executive sessions must be recorded.
• The recording must be provided to the Attorney General for purposes of administrative review, but the recording will be returned undisclosed.
• The recording may be released to the public only by majority vote of the governing body or pursuant to a court order.

When Can an Executive Session be Held?

• An executive session must be held to consider confidential records.
• An executive session may be held:
  • to consider closed records;
  • to consider state agency loss control committee records;
  • for attorney consultation; and
  • for negotiation preparation.

State Agency Loss Control Committee.

• Meetings of a state agency loss control committee must be closed when considering:
  • records related to the portion of the funds or liability reserves of the risk management fund established for the purpose of satisfying a specific pending or reasonably predictable claim; and
  • incident reports, investigation reports, or other risk management fund records of a pending or reasonably predictable claim.
• The meetings must be open if the Office of Management and Budget has disclosed the records of the specific pending or reasonable predictable claim being considered.

Attorney Consultation.

• The portion of a meeting of a governing body during which "attorney consultation" occurs is exempt and may be closed.
• "Attorney consultation" means any discussion between a governing body and its attorney in which the governing body seeks or receives advice regarding pending or reasonably predictable litigation or adversarial administrative proceedings.
• Consultations with an attorney that do not meet this definition are open.

Negotiation Preparation.

• A governing body may hold an executive session to:
  • discuss negotiating strategy or provide negotiating instruction to its attorney or negotiator regarding litigation, adversarial administrative proceedings, or contract; or
  • if disclosure would have an adverse fiscal effect on the bargaining or litigating position of the entity.
• A meeting of a governing body to conduct negotiations is still open unless another exception applies.

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Records

What is a "Record"?

• Recorded information in the possession or custody of a public entity regarding public business.
• Physical form in which the information is recorded is irrelevant.
• Information need only relate to, or be received or prepared for use in connection with public business.
• Applies to records in possession of agents as well as the public entity itself.

Records Generally Open.

• Correspondence received or sent by an office or public official in connection with public business.
• Reports, drafts, outlines, minutes, notes of meetings, lists, and calendars kept for official business or paid for by public funds.
• Videotapes, audiotapes, computer data, and photographs.
• Personnel records relating to salary and job performance.
• Financial records, telephone records and travel vouchers.

Drafts and Working Papers.

• "Record" includes drafts and working papers.
• A record prepared at the direction of and for presentation to a governing body can be withheld until:
  • a final draft is completed;
  • the record is distributed to a member of the governing body or discussed by the body at an open meeting; or
  • work is discontinued or a final version has been prepared, whichever occurs first.

Open Records Requests.

• Cannot require a requester to provide the requester's name or indicate the purpose of the request before providing access to open records.
• Cannot refuse request because information is available elsewhere.
• Requests may be made at any time during regular office hours and need not be made in person or writing.
• An entity without regular office hours must post the name of a contact person on its office door, if any, or else in the designated central location.
• Not required to compile or create a new record.

How Do You Provide Access to Open Records?

• Requester entitled to access all open records.
• Access cannot be denied because record contains both open and closed or confidential information.
• Entity must remove all closed or confidential information.
• Records must remove all closed or confidential information.
• Requester entitled to a copy of an open record.
• Copies must be provided and mailed upon request.
• Employee or officer may disclose or comment on substance of open record, and agreements prohibiting such disclosures are void.

How Do I Disclose Computer Records?

• Information stored electronically in a computer is a record.
• Requester has choice between printed document or other available medium.
• Computer disc is not available medium if closed or confidential material cannot be excised.
• An entity is not required to reformat or reorganize an electronic record so long as the information is usable.
• Access to a computer terminal is not required.

What Can I Charge for Open Records?

• A public entity may charge a "reasonable fee" for making copies, mailing copies, or both.
• "Reasonable fee" means the actual cost to the public entity of providing or mailing the copies, or both, including labor, materials, postage and equipment.
• A public entity may not charge the requester for costs associated with locating and providing access to open records, or for excising closed or confidential information from open records.

Denials and Violations.

• A denial of an open records request must be in writing, if requested, and explain the legal authority for the denial.
• The open records law is violated when access or receipt of a copy is denied or unreasonably delayed.

Requests During Litigation by a Party.

• A party to a lawsuit or adversarial administrative proceeding involving a public entity, or a person acting on behalf of a party, who requests a record from that entity, must make the request to the attorney representing the party in the litigation proceeding.

Examples of Exempt or Confidential Records.

• Records of public employees' medical treatment - confidential.
• Employee assistance program records - confidential.
• Trade secrets and proprietary information - exempt or confidential.
• Personal employee information - exempt.
• State agency loss control records - exempt.
• Attorney work product - exempt.
• Law enforcement records - exempt or confidential.

Personal Information is Exempt.

• Personal information in a public employee's personnel file or given to the state or political subdivision in the course of employment is exempt.
• Personal information includes:
  • address;
  • telephone number;
  • photograph;
  • medical information other than treatment records;
  • driver's license number;
  • social security number;
  • payroll deduction information;
  • information regarding dependents or emergency contacts; and
  • bank or credit card numbers.

State Loss Control Records.

• The following records regarding a specific pending or reasonably predictable claim against the state or a state employee are privileged and exempt:
  • records relating to the portion of the funds or liability reserves of the risk management fund established for the purpose of satisfying the claim; and
  • incident reports, investigation reports, or other risk management fund records of the claim.
• Discretion to disclose these records lies with OMB, which shall disclose the records when:
  • disclosure will not prejudice any outstanding or reasonable predictable claim;
  • all civil litigation or adversarial administrative proceedings regarding the claim are completed; and
  • the applicable statute of limitations for a reasonable predictable claim has expired.

Attorney Work Product is Exempt.

• A document or record is exempt as an attorney work product if it:
  • was prepared by an attorney representing a public entity or at the attorney's express direction;
  • reflects a mental impression, conclusion, litigation strategy or legal theory of the attorney or public entity; and
  • was prepared exclusively for pending or reasonable predictable civil or criminal litigation or adversarial administrative proceedings.
• Attorney work product must be available to the public after litigation is completed unless disclosure would have an adverse fiscal effect on the conduct or settlement of other pending or reasonable predictable litigation or adversarial administrative proceedings.

Active Criminal Information.

• Active criminal intelligence information - exempt.
  • "Criminal intelligence information" means information regarding a specific person or persons collected in an effort to anticipate, prevent, or monitor possible criminal activity.
  • Information is "active" as long as it is related to intelligence gathered with reasonable belief if will lead to the detection of criminal activities.
• Active criminal investigative information - exempt.
  • "Criminal investigative information" means information regarding a specific person or persons compiled in the course of investigating a specific act or omission.
  • Information is "active" as long as it is related to an ongoing investigation reasonable expected to lead to an arrest or prosecution in the foreseeable future.
• Personal information is exempt, even if inactive.

Law Enforcement Records of a Child.

• Identifying information of a living child victim or witness of a crime is confidential.
  • Does not apply to information identifying a child victim or witness of a traffic offense of a child victim of a fire.
• Records of a child alleged or found to be delinquent, unruling or deprived must be kept separate from records of adults and are confidential.
  • Release of general information not identifying the child is permitted.

Records of Law Enforcement Officers and Information.

• The telephone number and home address of an employee of a law enforcement agency or correctional facility are confidential;
• Records that would reveal the identity or endanger the life or physical well-being of an undercover law enforcement officer are confidential.
• A law enforcement officer or prosecutor acting within the scope of employment may provide assurances of confidentiality to persons providing information regarding violations of the law.

Criminal History Records.

• Criminal justice agencies must disclose criminal history record information to other criminal justice agencies, to a court, pursuant to a subpoena, or as otherwise required by law.
  • "Criminal history information" includes information collected by criminal justice agencies on individuals consisting of identifiable descriptions and notations of arrests, detentions, indictments, information, or other criminal charges, any dispositions arising therefrom, sentencing, correctional supervision, and release dispositions arising therefrom.
• Only BCI can provide criminal history record information to other parties, upon written request.

Law Enforcement Identification of Person Injured or Deceased.

• A law enforcement agency investigating a serious injury or death must notify the person's immediate family.
• The investigating agency may not release the name of the injured or deceased person until:
  • a member of the immediate family has been notified and allowed to notify other immediate family members, or
  • twenty-four hours has elapsed since the person has been identified, whichever occurs first.
• "Immediate family" means spouse parent, child, sibling, or any person who regularly reside in the household of the injured or deceased person.

Computer Programs.

• Computer programs developed by a public entity or for which the public entity acquires a license, copyright or patent are exempt.
• Public entities can enter into agreements for the sale, licensing, or distribution of its licensed, copyrighted, or patented computer programs.

Sharing Closed or Confidential Information.

• Pursuant to an agreement signed by the Attorney General, confidential records of another jurisdiction can be shared with the State and remain confidential if the record will further a civil investigation or litigation, and can be obtained only by agreeing to keep the record confidential.
• Governmental entities can share closed or confidential records with each other for purposes of law enforcement and collection of debts owed to a governmental entity, if the records are not used for other purposes and the closed or confidential nature of the records is otherwise maintained.

Court Ordered Disclosure.

• Closed records generally must be disclosed if subpoenaed by a court.
• Confidential records generally must be disclosed pursuant to a court order.
• Upon request of the public entity, the court ordering disclosure of confidential records shall issue a protective order.
• Employees who comply with a court order cannot be prosecuted for disclosing confidential material.