Texas Open Meetings Act Documents at Meetings What are the Rules? Becky P. Casares Assistant Attorney General Opinion Committee

 Difference Between Open Meetings Act (OMA) and Public Information Act (PIA)  Specific Documents Background packets Handouts and other documents Documents used during an executive session Minutes of open meetings Certified agenda or recording of executive session Personal notes  Rights and responsibilities of governmental bodies Topics to be Covered

 OMA (Gov’t Code ch. 551) and PIA (Gov’t Code ch. 552) have a similar goal – making government accessible  Exceptions to public access also similar – examples: Personnel matters Property matters Competition or bidding Legal matters OMA vs. PIA - similarities

 But exceptions to public access, while similar, are not interchangeable Fact that document is discussed in a closed meeting does not make it confidential under the PIA An exception to disclosure under PIA does not provide a basis for holding a closed meeting to discuss that document OMA vs. PIA - differences

 Academic teaching institutions, university systems, and junior college districts must post the written agenda and “supplemental written materials” that are provided to governmental body members for their use during the meeting “as early as practicable in advance of the meeting” on the governmental body’s website - Gov’t Code § , § (OMA)  Does not include material certified by general counsel as confidential or permitted to be withheld under the PIA  Requires only Internet posting, not hard copies Background packets – duties of certain governmental bodies

 Do other governmental bodies have to post or link, on their websites, the background packets that are provided to governmental body members for their use during the meeting? When OMA specifies that certain governmental bodies must provide Internet access to background documents in advance, presumption is that others do not But nothing in the OMA prohibits such voluntary posting or linking Background packets – duties of other governmental bodies

 If a governmental body voluntarily provides background packet material on its website: Be consistent – if there is regular Internet posting, this should not change just because particular agenda contains controversial topics Be complete – with the exception of confidential material, provide access to all the documents Be timely – provide access as soon as possible in advance, every time Background packets – voluntarily posting or linking

 Does a governmental body have to make available at the meeting hard copies of background packets, handouts or PowerPoint presentations that will be made or discussed at a meeting? OMA rights of the public include attendance at, and recording of, a meeting OMA rights do not extent to getting copies of materials used or mentioned at meetings Duty to provide copies is potentially triggered only if request is made in writing under the PIA Handouts and other documents at meetings

 Neither the OMA nor the PIA prohibit the voluntary disclosure of public information that is not otherwise confidential or prohibited by law from being disclosed  If a governmental body chooses to provide a particular document, it must provide access to that particular document to anyone who asks  Gov’t Code § (PIA) Documents at meetings – voluntarily providing

 Are handouts, PowerPoints, and other such documents of third parties automatically “public information” documents by virtue of being presented at a meeting? No. Documents must independently meet the definition of “public information” in the PIA  Example - information written or produced in connection with the transaction of official business for a governmental body and the governmental body has a right of access to the information - Gov’t Code § (PIA)  Inquiry will be fact specific Documents of third parties at meetings

 Are documents used in an executive session cloaked with confidentiality by sole virtue of the executive session? No. “That a matter can be discussed in closed meetings does not mean that all documents involving the same matter are exempt from public access. Otherwise, any document, regardless of its content and regardless of whether it would be otherwise available to the public under the Public Information Act, would be exempt from disclosure just because it could be considered in a closed meeting.” City of Garland v. Dallas Morning News, 22 S.W.3d 351, 367 (Tex. 2000) Documents used in executive session

 Governmental body “shall prepare and keep minutes or make a recording of each open meeting.” - Gov’t Code§ (a) (OMA)  Minutes must state the subject of each deliberation and indicate each vote, order, decision, or other action taken - Gov’t Code § (b) (OMA) Minutes of open meeting - requirements

 Minutes and recordings of an open meeting are public records and shall be available for public inspection and copying on request to the governmental body’s chief administrative officer or the officer’s designee – Gov’t Code§ (OMA) Provision does not require first making a written request pursuant to the PIA Items included in the minutes as attachments must be disclosed under section even if PIA exception applies (see York v. Tex. Guaranteed Student Loan Corp., 408 S.W.3d 677, 687–88 (Tex. App.—Austin 2013, no pet.) Minutes of open meetings – public access

 Handwritten notes or recordings made to aid in the preparation of minutes are generally public information Doesn’t matter if personal recording equipment is used or if notes are in the personal possession of a single person – JM-1143 (1990) at 2–3, ORD 635 (1995) at 4  Draft minutes awaiting adoption vote by the governmental body are generally public information – ORD 225 (1979) at 2–3 PIA exception covering “deliberative process privilege” ( ) not applicable to material reflecting only facts Are public records when made, regardless of form Minutes of open meetings – preparation

 OMA requires a governmental body to make and keep either a “certified agenda” or a recording of each executive session (except for a closed meeting held to consult with an attorney under Gov’t Code§ ) Attending while aware of noncompliance is a Class C misdemeanor  Must keep for at least two years after date of meeting  Must preserve certified agenda or recording while any legal action is pending  Gov’t Code§ , § (OMA) Certified agenda or recording of executive session – requirements

 Certified agenda must include: subject matter of each deliberation record of any further action taken Indication of date and time by presiding officer at the beginning and end of executive session  Presiding officer must certify that agenda is a true and correct record of the executive session  Gov’t Code § (OMA) Certified agenda - preparation

 Certified agenda or recording of an executive session may NOT be disclosed to the public except under a court order issued under Gov’t Code§ (b) Disclosure is a Class B misdemeanor and also can subject one to civil liability - Gov’t Code §  Prohibition on disclosure is “to the public” Certified agenda or recording of executive session – limited access

 Does anyone outside of the governmental body members who were in the executive session have access to the certified agenda or recording of an executive session? Current members who were absent – yes Current members who were not yet members at the time of the executive session – yes Former members who were members at the time of the executive session – no Non-members who were present at the meeting – no Certified agenda or recording of executive session – certain access

 If not made for record-keeping, OMA likely does not address  PIA definition of “public information” includes: information that is written, produced, collected, assembled, or maintained... in connection with the transaction of official business... by an individual officer... in the officer's... official capacity and the information pertains to official business of the governmental body  Thus, personal notes made as mere memory aids are subject to disclosure under the PIA unless exception applies – ORDs 635 (1994), 626 (1994), 327 (1982), 120 (1976) Personal notes made by governmental body members during a meeting

 Public access to meeting documents mandated by the OMA in only two instances: online background materials of an academic teaching institution, university system, or junior college district minutes (including attachments) of open meetings  Public access to meeting documents in other instances will be governed by the PIA  When in doubt, ask your legal counsel Summary

Open Government Hotline Toll Free (877) OPEN-TEX (877) OAG website Views expressed are those of the presenter, do not constitute legal advice, and are not official opinions of the Office of the Texas Attorney General. Questions and Assistance