Texas Open Meetings Act

Documents at MeetingsWhat are the Rules?

Becky P. CasaresAssistant 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 §551.1281, §551.1282 (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 § 552.007 (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 §552.002 (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§ 551.021(a) (OMA)

Minutes must state the subject of each deliberation and indicate each vote, order, decision, or other action taken - Gov’t Code § 551.021(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§551.022 (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 551.022 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” (552.111) 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§551.071)

• 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§551.104, § 551.145 (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 §551.103 (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§551.104(b)

• Disclosure is a Class B misdemeanor and also can subject one to civil liability - Gov’t Code § 551.146

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 HotlineToll Free

(877) OPEN-TEX(877) 673-6839

OAG websitewww.texasattorneygeneral.gov

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. 

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