The Senate Committee on Government Operations heard public testimony today on SB 6109: Exempting video and audio recordings of closed executive session meetings from public inspection and copying. [1] SB 6109 reflects a new strategy by the Attorney General and State Auditor to ensure that executive sessions aren't being misused in violations of the state's Open Public Meetings Act (OPMA).
I joined State Auditor Brian Sonntag and Tim Ford, Open Government Ombudsman for the Attorney General's Office, in testifying on SB 6109:
Previous efforts by the State Auditor and Attorney General to require taping of executive session was met with fierce resistance by local governments. Among the concerns expressed was that such recordings would be subject to public disclosure thus circumventing the legal use of executive session. To address this concern SB 6109 would exempt recordings of executive session from public disclosure.
According to the intent section of the OPMA [2]:
The legislature finds and declares that all public commissions, boards, councils, committees, subcommittees, departments, divisions, offices, and all other public agencies of this state and subdivisions thereof exist to aid in the conduct of the people's business. It is the intent of this chapter that their actions be taken openly and that their deliberations be conducted openly.
The people of this state do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created.
To fulfill this intent the OPMA requires all meetings of state and local government governing bodies to be open to the public and announced in advance. However, the law allows the governing officials to meet behind closed doors in an executive session for certain limited purposes, such as consulting with their attorney on litigation, or discussing the maximum price they are willing to pay for a parcel of land.
Closed executive sessions are allowed only if the purpose of the meeting is announced in advance, and the secret discussion is limited to the announced allowed topic.
According to the State Auditor's Office, however, there have been hundreds of violations of this requirement.
This is why WPC believes that to ensure executive sessions are not being used to evade public disclosure, the sessions should be recorded and made exempt from disclosure under the Public Records Act and from subpoena or discovery in a lawsuit.
If a lawsuit is filed under the Open Public Meetings Act challenging the propriety of the executive session, and the person filing the lawsuit presents evidence sufficient to convince a judge that a violation had likely occurred, the recordings could be used to settle the question.
If a judge finds the challenged executive session included improper discussions and violated the law, the recording of only the portions of the meeting that should not have occurred in executive session could then be publicly disclosed.
Here is a 2008 handout by the Attorney General's Office [3] in support of taping executive sessions.