Behind closed doors: Public records laws have exceptions
Woe to those public bodies that fail to comply with North Carolina’s sunshine laws; transparency underpins American democracy to the extent that there’s a whole chapter of complicated regulations in the N.C. General Statutes that define public records, public meetings, the availability of both and the very real penalties for violations.
Some things, though, are better left in the dark. At least, for a little while.
Ten separate topics are subject to exemption from the state’s sunshine laws under NCGS 143-318.11, but only nine of them are common, including attorney-client communications, confidential information, economic development, real property acquisition, employment contracts, some personnel matters, investigations, school violence response plans and anti-terror response plans.
When topics like those need to be discussed, public bodies are permitted by statute to go into what’s called “closed session,” during any official meeting. To do so, a motion must be made in open session to go into closed session, and that motion must be passed by a majority of the board members. Within the motion must be stated the reason for the closed session.
Confidential information refers to things like medical records, credentialing information for licensed professionals, health care contracts, student records, records of public assistance, criminal investigations and tax returns.
Closed sessions held for attorney-client communications require the presence of an attorney and do not cover non-legal discussions, such as business advice. Not every board communication with an attorney can be held in closed session.
“Litigation, especially in the public sector, it can get really messy,” said Bryant Morehead, Haywood County’s manager for the last five months. “It largely involves services we provide to the community in some respect, so keeping it private like you would if it was in the private sector, that allows us to be in a better position to win, if it has to go to court, or if there’s ways to talk to our attorney about going to mediation or solving the problem without going through the courts.”
Luckily, according to Morehead, closed sessions for litigation are held less frequently than those for a more enticing prospect.
“Most of the time, in my experience here, we’ve gone into closed session for economic development things that aren’t public yet,” he said.
The economic development exemption — called “business location and development” — occurs when a board wishes to discuss a particular industry or business that wants to locate or expand within the jurisdiction of that public body. General discussion of economic development strategy is not permitted in closed sessions. Boards may not take action in closed session using the economic development exemption.
The exception for real property acquisition is just that — acquisition, not disposition. It allows the public body to consider a strategic position for negotiating, including price or other material terms of a contract. Easements, leases and other deals involving less-than-full ownership may also be discussed.
Personnel issues also warrant an exemption. During closed sessions on this topic, public bodies can establish boundaries for any employment contract including compensation or other terms. The body may also discuss an employee’s qualifications, performance or even character, but may not use closed session for similar discussions about independent contractors, like the town attorney.
“The statute allows you to talk about performance, qualifications, all those things. And if you’ve got a problem with an employee, like their performance isn’t what you’d like it to be, you can talk about that without dragging them through the muck and the mire,” said Morehead.
The body also may not discuss employees generally — such as pay raise policies — but only specifically. Any action taken regarding the appointment, discharge or removal of personnel must be taken in open session.
The investigations exemption is rather narrow and only allows public bodies to plan, conduct or receive reports concerning an investigation into alleged criminal conduct.
The last two exemptions, school violence response plans and anti-terror response plans, are relatively self-evident and permit plans that might otherwise need to be revealed in open session to be concealed in the interest of public safety.
The one other exemption — rare, but real — is to allow closed sessions for the purpose of selecting honorees and award winners, or other such symbolic gestures like naming a facility after a long-time employee. This exemption is most often used by school boards or universities, which under the law are also public bodies like cities and counties.
All other topics must be discussed in open session, so once a board enters closed session it must discuss only those topics announced in the open session.
Only members of the board — as well as ex-officio board members — may attend the closed session, but the board may invite persons who will be helpful to the discussions, like the board attorney, county or town manager, or other administrators.
Boards may also choose to exclude those attorneys, managers and administrators, but they may not, however, exclude some members of the public but not others.
N.C. law allows boards to take action on some of the closed session topics in closed session, but for others, clear direction demands any action to be taken must be taken in open session, although public bodies are allowed to reach a consensus in closed session before returning to open session for a formal vote.
Minutes must be taken in closed session meetings, giving a general account of what’s transpired and must be understandable to someone who was not at the meeting; if no staff member is present to take them, a board member must record them.
Law allows for public bodies to retain the closed session meeting minutes for as long as necessary if their release might “frustrate” the reason for which the closed session was called, but usually, they’re released once the closed-session issue has been resolved.
There’s no legal time limit for the release of resolved minutes, and it’s not usually a high priority for local governments busy with dozens of other more practical, day-to-day concerns. Most will review a batch of minutes every few months to ensure privileged information isn’t revealed.
“Last month or the month before Candy [Way, clerk to the Board of Haywood County Commissioners] sat with the board and went through the closed session minutes and decided to release them, and I think we probably did some in November as well, to clear out the backlog before the new board came in,” Morehead said.
Last fall, The Smoky Mountain News requested a year’s worth of closed session minutes from all municipal and county governments in our four-county coverage area. Those public bodies responded in a variety of ways, with differing degrees of compliance, detail and responsiveness. Each was rated on a scale of one to three stars. Read on to find out who’s doing what, and when, behind closed doors.
The laws governing closed and open sessions of public bodies like cities, counties, school boards and universities are complex, ever-changing and oft subject to judicial clarification. Luckily for elected officials, the University of North Carolina’s School of Government produces a robust, influential and highly useful blog called Coates’ Canons, covering almost any state or local government topic imaginable. Prolific author and UNC-SOG instructor Frayda Bluestein penned a quick reference guide specifically pertaining to closed session law. Check it out at https://canons.sog.unc.edu/quick-reference-guide-for-closed-session-meetings.