The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us) STATE OF MICHIGAN FRANK J. KELLEY, ATTORNEY GENERAL Opinion No. 5436 February 1, 1979 OPEN MEETINGS ACT: Youth Parole and Review Board proceedings FREEDOM OF INFORMATION ACT: Exemption of records exempted from disclosure by statute YOUTH PAROLE AND REVIEW BOARD: Proceedings subject to Open Meetings Act CHILDREN AND MINORS: Youth Parole and Review Board proceedings JUVENILE DELINQUENTS AND DEPENDENTS: Youth Parole and Review Board proceedings Youth Parole and Review Board proceedings are subject to the Open Meetings Act. Part of the Board proceedings may be closed pursuant to Sec. 8(h) of the Open Meetings Act, however, when confidential records are discussed. Administrative hearings held pursuant to Sec. 9 of the Social Welfare Act are subject to the Open Meetings Act. Part of the hearing may be closed pursuant to Sec. 8(h) of the Open Meetings Act, however, when confidential records are discussed. Since certain records are protected from disclosure by the Social Welfare Act, they are exempt from disclosure under Sec. 13(1)(d) of the Freedom of Information Act which exempts records that are exempt from disclosure by statute. John T. Dempsey Director Michigan Department of Social Services 300 South Capitol Avenue Lansing, Michigan 48926 You have asked several questions regarding the effect of the Open Meetings Act, 1976 PA 267, MCLA 15.261 et seq; MSA 4.1800(11) et seq, upon Youth Parole and Review Board proceedings authorized under Sec. 121 of the Social Welfare Act, 1939 PA 280; MCLA 400.121; MSA 16.490(31) and upon administrative hearings held pursuant to Sec. 9 of the Social Welfare Act, 1939 PA 280; MCLA 400.9; MSA 16.409. First, you have asked whether the Youth Parole and Review Board is subject to the requirements of the Open Meetings Act, supra. This Board was created pursuant to Sec. 120 of the Social Welfare Act, 1939 PA 280; MCLA 400.120; MSA 16.490(30), which provides: 'A youth parole and review board is created within the department of social services to consist of 3 members appointed by the director and who shall be within the state civil service. The chairman of the board shall be designated by the director from the membership of the board.' The Youth Parole and Review Board has jurisdiction over delinquent state wards committed to the Department of Social Services pursuant to the Youth Rehabilitation Services Act, 1974 PA 150; MCLA 803.301 et seq; MSA 25.399(51) et seq. Section 121 of the Social Welfare Act, supra, provides: '(1) The parole and review board shall have the following duties: (a) Be responsible for approval of releases from all youth training school facilities of the department, return to the facilities from release status, and discharge from legal delinquency commitment. (b) Have other duties and responsibilities as authorized by law or by the director. (2) The business which the parole and review board may perform shall be conducted at a public meeting of the parole and review board held in compliance with Act No. 267 of the Public Acts of 1976. Public notice of the time, date, and place of the meeting shall be given in the manner required by Act No. 267 of the Public Acts of 1976.' Subsection (2) was added to the Social Welfare Act, supra, by 1978 PA 224. Therefore, in answer to your first question, Youth Parole and Review Board proceedings are subject to the Open Meetings Act, supra, pursuant to 1978 PA 224; MCLA 400.121(2); MSA 16.490(31)(2). You next ask: If Youth Parole and Review Board proceedings fall within the Open Meetings Act, may these hearings be closed under Sec. 8(h) of the Open Meetings Act, 1976 PA 267; MCLA 15.268(h); MSA 4.1800(18)(h). That section provides: 'A public body may meet in closed session only for the following purposes: h) To consider material exempt from discussion or disclosure by state or federal statute.' In those situations where the Youth Parole and Review Board is discussing or adjudicating matters pertaining to a specific state ward, Sec. 8 of the Youth Rehabilitation Services Act, 1974 PA 150; MCLA 803.308; MSA 24.399(58), must be observed. That section states: 'All records of the department [of Social Services] pertaining to a state ward are confidential and shall not be made public unless: (a) If the person is under the age of majority, by the authorization of the department when deemed necessary for the best interests of the youth. (b) If the person has attained the age of majority, by his consent.' It is my conclusion, therefore, that part of Youth Parole and Review Board proceedings may be closed pursuant to Sec. 8(h) of the Open Meetings Act, supra, when confidential records, as defined in 1974 PA 150, Sec. 8, supra, are under discussion. You have also asked, presuming parts of a hearing or meeting may be closed under Sec. 8(h) of the Open Meetings Act, supra, whether such closure must take place at an open meeting called in accordance with Secs. 4 through 7 of the Open Meetings Act, supra, MCLA 15.264-267; MSA 4.1800(14)-(17). Section 7 of the Open Meetings Act, supra, provides in relevant part: '(1) A 2/3 roll call vote of members elected or appointed and serving shall be required to call a closed session. . . . The roll call vote and the purpose or purposes for calling the closed session shall be entered into the minutes of the meeting at which the vote is taken. (2) A separate set of minutes shall be taken by the clerk or the designated secretary of the public body at the closed session. These minutes shall be retained by the clerk of the public body, shall not be available to the public, and shall only be disclosed if required by a civil action filed under section 10, 11, or 13. These minutes may be destroyed 1 year and 1 day after approval of the minutes of the regular meeting at which the closed session was approved.' Subsection 7(1) of the Act indicates that a two-thirds vote of all members of the public body is required before any portion of a meeting can be closed under Sec. 8(h) of the Act and minutes shall be taken which reflect such vote and the purpose for which the closed session is to be called. Subsection 7(2) requires the public body to keep a separate set of minutes for the portion of the meeting which is held as a closed session. This clear language manifests the legislature's intent that a decision to hold a closed session be reached at a meeting which is open to the public. This conclusion is consistent with the recent Court of Appeals decision in Wexford County Prosecutor v Pranger, 83 Mich App 197, 201; ---- Nw2d ---- (1978), in which the court stated, 'We construe the closed session exception strictly to limit the situations that are not open to the public.' 83 Mich App 197, 201. Therefore, it is my opinion that the decision to hold any portion of a meeting as a closed session pursuant to Sec. 8(h) of the Open Meetings Act, supra, must be made at an open meeting, held in compliance with the procedures mandated by that Act. You have also raised similar questions with respect to the application of the Open Meetings Act, supra, to administrative hearings held pursuant to Sec. 9 of the Social Welfare Act, 1939 PA 280; MCLA 400.9; MSA 16.409. That section provides: '(1) Pursuant to Act No. 306 of the Public Acts of 1969, as amended, being sections 24.201 to 24.315 of the Michigan Compiled Laws, the director shall prescribe rules for the conduct of hearings within the state department, which provide adequate procedure for a fair hearing of appeals and complaints, when requested in writing by an applicant for or recipient of assistance or service, financed in whole or in part by federal funds. Hearings shall be conducted by agents designated by the director. The director may appoint a hearing authority to decide these cases. The hearing authority shall be vested with the powers and duties of the director to hold and decide hearings. The decisions in these cases shall be binding upon each county or district department of social services involved and shall be complied with by that department. The director may also upon his or her own motion, review a decision of a county or district department with respect to the granting of assistance financed in whole or in part by federal funds, and may consider and pass upon an application for assistance which has not been acted upon by the county or district department within a reasonable time. (2) A hearing held pursuant to this section shall be held as prescribed in Act No. 267 of the Public Acts of 1976.' As in Sec. 121(2), discussed above, subsection 9(2) was added to the Social Welfare Act, supra, by 1978 PA 224, to make it clear that the procedures specified in the Open Meetings Act, supra, are to be followed in conducting hearings under Sec. 9 of the Social Welfare Act. Again you have asked whether any part of a hearing conducted under Sec. 9 of the Social Welfare Act, supra, MCLA 400.9; MSA 16.409, may be closed pursuant to Sec. 8(h) of the Open Meetings Act, quoted above. In this regard, Sec. 35 of the Social Welfare Act, supra, MCLA 400.35; MSA 16.435 provides: 'Notwithstanding section 2(6), records relating to categorical assistance, including medical assistance, shall be confidential and shall not be open to inspection except as prescribed in section 64. The state department of social services may promulgate and enforce rules for the use of the records as may be necessary for purposes related to federal, state, or local public assistance, pursuant to Act No. 306 of the Public Acts of 1969, as amended.' 'Categorical assistance' and 'medical assistance' are assistance programs which are 'financed in whole or in part by federal funds' as specified in Sec. 9 of the Social Welfare Act, supra. Section 64 of the Social Welfare Act, supra, MCLA 400.64; MSA 16.464, referred to in Sec. 35 above, states in relevant part: '(1) Notwithstanding sections 2(6), 35, 45(6) and 46(6), applications and records concerning an applicant for or recipient of aid or relief under the terms of this act, except medical assistance, shall be considered public records and shall be open to inspection by persons authorized by the federal or state government, the state department of social services, or the officials of the county, city or district involved, in connection with their official acts and by the general public as to the names and addresses of recipients and the amounts of aid or relief granted. General public access shall be restricted to persons who present a signed application containing the name, the address, and the occupation of the persons signing the application. A person shall not utter or publish the names or addresses except in cases where fraud is charged or wrongful grant of aid is alleged. A person shall not use the names or addresses for political or commercial purposes. (2) Records relating to persons applying for, receiving or formerly receiving medical services under the categorical assistance programs of this act shall be confidential and shall be used only for purposes directly and specifically related to the administration of the medical program.' In addition, 42 USC 602(a)(9), 42 USC 1396a(a)(7), 42 USC 1397b(d)(1)(B) and 7 USC 2020(e)(8) each contain restrictions upon the disclosure of information relating to applicants for or recipients of federally funded assistance and services through programs administered by the Department of Social Services. Therefore, any portion of an administrative hearing held under Sec. 9 of the Social Welfare Act, supra, may be closed to the general public pursuant to Sec. 8(h) of the Open Meetings Act, MCLA 15.268(h); MSA 4.1800(18)(h), if the matters to be discussed involve records protected from disclosure under the above cited federal and state statutes. As noted above, the decision to hold a closed session under Sec. 8(h) of the Open Meetings Act, supra, must be reached at an open session in accordance with Sec. 7 of the Act, MCLA 15.267; MSA 4.1800(17). Finally, you have asked: 'To what extent does section 61(3) [of the Social Welfare Act, MCLA 400.61(3); MSA 16.461(3) as amended by 1978 PA 224] require or permit release of case information which would otherwise be considered confidential?' The provision you refer to states: 'If the Michigan social welfare commission, a county department of social services, a county social services board, district department of social welfare, district social welfare board, or the parole and review board arbitrarily and capriciously violates section 2(6), 45(6), 46(6) or 64(3) the commission, department, or board shall be subject to the penalties prescribed in Act No. 442 of the Public Acts of 1976.' Sections 2(6), 45(6) and 46(6) of the Social Welfare Act, supra, MCLA 400.2(6), 400.45(6) and 400.46(6); MSA 16.402(6), 16.445(6) and 16.446(6), each require that, except as provided in Secs. 35 and 64 of the Social Welfare Act, supra, writings 'prepared, owned, used in the possession of, or retained by' the Michigan Social Welfare Commission, the county departments of social services or the county social services boards 'in the performance of an official function shall be made available to the public' in accordance with the Freedom of Information Act, 1976 PA 442, MCLA 15.231 et seq; MSA 4.1801(1) et seq. Section 13(1)(d) of the Freedom of Information Act, supra, MCLA 15.243(1)(d); MSA 4.1801(13)(1)(d) provides: 'A public body may exempt from disclosure as a public record under this act: (d) Records or information specifically described and exempted from disclosure by statute.' Since records which are protected from disclosure by any statute are exempt from disclosure under the Freedom of Information Act, supra, such material would likewise be exempt from disclosure under Sec. 61(3) of the Social Welfare Act, supra, which incorporates the requirements of the Freedom of Information Act, including Sec. 13(1)(d); MCLA 15.243(1)(d); MSA 4.1801(13)(1)(d). Therefore, in answer to your last question, MCLA 400.61(3); MSA 16.461(3), as amended by 1978 PA 224, does not require the release of records which are confidential under any statute. Frank J. Kelley Attorney General