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

JENNIFER M. GRANHOLM, ATTORNEY GENERAL

OPEN MEETINGS ACT:

Disclosure of closed session meeting minutes
Under the Open Meetings Act, the clerk or designated secretary of a public body may furnish to a member of that body the minutes of a closed session of the body, either for inspection or copying. A public official who disseminates closed session minutes to the public in violation of this act, however, risks criminal prosecution and civil penalties.


Opinion No. 7061

August 31, 2000


Mr. John L. Livesay
Branch County Prosecuting Attorney
Branch County Courthouse
31 Division Street
Coldwater, MI 49036


You have asked whether under the Open Meetings Act, the clerk or designated secretary of a public body may furnish to a member of that body the minutes of a closed session of the body, either for inspection or copying.

The Open Meetings Act (OMA), 1976 PA 267, MCL 15.261 et seq; MSA 4.1800(11) et seq, generally requires a "public body" to open its meetings to the public, subject to limited exceptions. OAG, 1981-1982, No 6053, p 616 (April 13, 1982). The OMA authorizes a public body to meet in a session closed to members of the public only for certain enumerated purposes, such as dismissing an employee. Sections 7 and 8. A 2/3 roll call vote of members serving on the public body is required to call a closed session, except for the closed sessions permitted under section 8(a), (b), (c), (g), (i) and (j). The roll call vote and the purpose for calling the closed session must be entered into the minutes of the meeting at which the vote is taken. Section 7(1). OAG, 1979-1980, No 5436, pp 31, 33 (February 1, 1979).

The OMA should be broadly construed to "promote openness in government," Wexford County Prosecutor v Pranger, 83 Mich App 197, 204; 268 NW2d 344 (1978), and the closed-door meeting exceptions must be strictly construed so as "to limit the situations in which meetings are not open to the public." Detroit News, Inc. v Detroit, 185 Mich App 296, 302; 460 NW2d 312 (1990). If a public body deliberates in closed session on a matter affecting public policy, it must wait to reach a decision based on those deliberations until it meets in open session. Section 3(2). People v Whitney, 228 Mich App 230, 243; 578 NW2d 329 (1998); OAG, 1979-1980, No 5632, p 563 (January 24, 1980).

When a public body meets in closed session, the OMA requires that minutes be taken, retained, and remain generally unavailable to the public. Section 7(2) provides that:

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, are not 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.

The minutes of a public body meeting in closed session include transcribed testimony of witnesses appearing before the public body "as well as the dialogue between board members during the [closed] session [which] . . . were part of the members' actual deliberations." Titus v Shelby Charter Twp, 226 Mich App 611, 615-616; 574 NW2d 391 (1997). Thus, the minutes of the public body meeting in closed session become the official record of the proceedings before that public body.

Against this background, we address your question whether the custodian of closed session meeting minutes may disclose them to a member of the public body that convened the meeting. No specific language in the statute resolves the question. But consideration of concrete examples helps illustrate the Legislature's intent. Should a member of a public body be unable to attend a closed session of that body convened to consider, for example, the disciplining of a public employee or a public school pupil at their request, the absent member could nevertheless vote on final action on that matter at a later public meeting of the body. In order to make an informed decision, however, the member would need to review the minutes and transcripts of testimony, if any, of the closed session. See Leonardi v Sta-Rite Reinforcing, Inc, 120 Mich App 377, 381-382; 327 NW2d 486 (1982). The Legislature could not have intended to deny access to the minutes of a closed session of that body to that absent member or to any other member of the public body. If the members themselves could not review the minutes, there would be no discernible purpose in keeping minutes. Even members who were present at the closed session should have access to the minutes in order to refresh their recollection about their own deliberations before reaching a final decision at a later open meeting. Thus, the custodian of closed session minutes may make them available to members of the public body.

The conclusion that members of a public body have continuing access to the minutes of its closed sessions is consistent with the OMA's distinction between a member of a public body and the public. In particular, section 2(c) of the OMA defines a "closed session" as "a meeting or part of a meeting of a public body which is closed to the public." Similarly, section 3(3) requires that "[a]ll deliberations of a public body constituting a quorum of its members shall take place at a meeting open to the public except as provided in this . . . [act]." In addition, the public body may, in its discretion, selectively include certain persons in closed sessions, such as legal advisors and other consultants, while excluding all others. See, for example, OAG, 1985-1986, No 6358, p 268 (April 29, 1986), concluding that elected municipal officers, department heads, and other persons who are not members of a public body may be excluded from attending a closed session of the public body. By establishing this distinction between a member of the public body and the public, and in making minutes of a closed meeting unavailable to the public, the Legislature evidenced its intent that those minutes would be available to members of the public body.

It should be emphasized, however, that the Legislature has imposed criminal and civil penalties upon a public official who intentionally violates the OMA. Sections 12 and 13 of the OMA. Thus, a member of a public body who discloses closed session minutes to the public in violation of section 7(2) risks both criminal prosecution and civil penalties under the OMA.

It is my opinion, therefore, that under the Open Meetings Act, the clerk or designated secretary of a public body may furnish to a member of that body the minutes of a closed session of the body, either for inspection or copying. A public official who discloses closed session minutes to the public in violation of this act, however, risks criminal prosecution and civil penalties.

JENNIFER M. GRANHOLM
Attorney General