12 Mar Months after closed meetings, details in NC often remain off-limits | News & Observer
Hundreds of times a year across North Carolina, officials who control everything from the taxes you pay the city to the tuition required to attend public universities meet behind closed doors to conduct sensitive business on behalf of the public they serve.
Whether they’re elected or appointed, members of these boards on the local and state level can meet out of the view of the public for almost a dozen legitimate reasons, like personnel decisions or discussions of legal strategy. When they do, they’re supposed to keep an account of what happens – and barring specific exceptions, be able to provide that account to the public.
That’s often not the case.
A collaborative investigation by 10 newsrooms across the state found that governing boards that meet in closed session are often slow to hand over legally required records that detail what they discuss in secret, if they provide them at all. When they are produced, they’re often heavily redacted, raising questions about how closely those boards are following the law.
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The project, which included WRAL News, The News & Observer and The Fayetteville Observer, among others, was timed to coincide with Sunshine Week, a celebration of transparency and open government.
“How well public bodies manage their minutes from their meetings – there’s a whole lot of variance,” said Jonathan Jones, director of the N.C. Open Government Coalition at Elon University. “There really shouldn’t be, at least not when it comes to the closed-session piece.”
For closed meetings, a more specific standard
Every public board, whether it’s a city council, county commission or state oversight authority, is required by North Carolina law to keep minutes of its meetings.
But when the board decides to close its meeting, as it legally can for any one of 10 specific reasons, officials have to go a step further.
While there’s really no legal requirement for what needs to be recorded in the minutes of open meetings, the law says minutes of meetings behind closed doors must be extensive enough “so that a person not in attendance would have a reasonable understanding of what transpired.”
“It doesn’t have to be a verbatim record, but it has to provide a person with a sense of what happened,” said Frayda Bluestein, professor of public law and government at the University of North Carolina at Chapel Hill. “Even if they didn’t take any action, the public has a right to know what they talked about.”
Amanda Martin is an attorney at the Raleigh-based firm Stevens Martin Vaughn & Tadych, which often represents media organizations including WRAL News in lawsuits over government access. She points out that the difference between accounts of open and closed meetings all comes down to access.
“The public is just completely shut out from closed sessions,” Martin said. “That’s why it makes sense that minutes from closed sessions should be more detailed, because the law has prevented you from coming and hearing what happened.”
There are limits, however, on what boards can make public. State law allows officials to withhold records if releasing them would “frustrate the purpose” of the closed session – if the meeting included discussions of personnel issues, for example. But in other cases, Jones said, the reasons for closing meetings are often temporary.
“Eventually those minutes are going to become public,” Jones said. “Once the issue they’ve met to deal with has been resolved, the release of those minutes will no longer frustrate the purpose of the closed session.”
To test how government boards handle these accounts of closed meetings, 10 news organizations simultaneously submitted requests in early January for a year’s worth of minutes from closed sessions at nearly 50 public bodies on the local, state and county level.
The requests went to 10 local and state school boards, including one school board that refused outright to release any records.
After more than two months, about a dozen boards had yet to turn over any minutes from closed sessions. Others provided accounts of only some of their 2017 meetings, or versions that were heavily redacted.
Bluestein said officials often wait until long after the meetings take place to make decisions on what to withhold.
“I think a lot of folks approach this by sealing them all, then taking a look … when somebody requests it,” Bluestein said.
Delays mean meetings stay hidden
For many agencies, more than two months wasn’t enough time to process the requests for minutes, including some cases where the meetings were held more than a year ago. Boards that didn’t provide records by March 9 include:
Durham County Board of CommissionersCumberland County Board of CommissionersMecklenburg County Board of CommissionersEconomic Development Partnership of North Carolina, the public-private group tasked with recruiting companies to the stateWilmington City CouncilNorth Carolina A&T University Board of Trustees
None of these public bodies outright refused to release the minutes. Instead, many attributed the delay to office backlogs.
“Unfortunately, due to a heavy workload, there are still some pending 2017 minutes that have to be prepared,” Durham County Clerk Michelle Parker-Evans wrote on Jan. 22. “I hope to have a response to you in the very near future.”
Bluestein pointed out that although there’s no time limit for the approval of minutes, courts have held that there’s nothing that necessarily exempts draft minutes from disclosure.
Several other boards said their minutes needed review before they could be released.
That was the case in Mecklenburg County, where spokesperson Leo Caplanides said an attorney must screen the minutes and redact material deemed to be confidential.
Cumberland County Attorney Rick Moorefield took weeks to conclude that some minutes from 2017 closed meetings among the commissioners included information about economic development projects. That information is protected from release until companies make their final decisions about where to locate.
So in mid-February, he said he needed to check with the county’s economic development director to see if the companies involved were still considering the county.
Moorefield eventually provided commissioners the information that he was advising they release, but he said the board wasn’t expected to vote on the matter until its March 19 meeting.
The Economic Development Partnership of North Carolina took six weeks to reveal that it wasn’t planning to release anything until a March 23 board meeting, when partnership directors would review the records for “appropriateness,” according to spokesperson Mary Wilson.
EDPNC attributed the late release, which for one meeting in February 2017 would mean it was delayed for more than a year, to a change in legal counsel in October.
Before her firm came on board, EDPNC attorney Angie Vincent-Hamacher said, minutes of closed sessions were limited.
“In our view, the better practice is to maintain a more detailed separate account of what transpired in the closed session,” Vincent-Hamacher, who works for the firm Robinson Bradshaw, said in an email. “Accordingly, after we came in as counsel, we started preparing separate minutes for the EDPNC.”
Vincent-Hamacher said EDPNC now has more detailed minutes for all closed sessions in 2017, “albeit later than we would have done had we been counsel at the time of the meetings.” Just how much will be released publicly, she said, will be up to the board.
Martin, the attorney who often represents media outlets, said there is wide variation in how boards handle minutes from closed sessions because there’s no set process in the law for how they should be approved. Often, she said, that means putting off decisions about what is public and what is not.
“In practicality, what happens is that boards and commissions and committees do whatever they want, and they really only deal with this when someone comes forward and says they want to see the minutes,” Martin said.
Redactions obscure details
When public bodies do supply accounts of their closed-door meetings, the Sunshine Week investigation found, they’re often heavily redacted.
Durham City Council, for example, furnished minutes from closed-session meetings within hours of the request in early January. However, the city turned over minutes for only five of the 10 closed sessions. The minutes for the other half of the closed sessions were still protected from public inspection by North Carolina public records law, according to the city’s attorney.
Orange County responded in a timely fashion, but redacted parts of 12 of the 14 records provided.
Accounts of closed meetings from several university boards of trustees revealed little of the discussion outside of “personnel issues” and “legal matters,” as was the case for UNC-Chapel Hill, UNC-Charlotte and NC State University.
UNC-Chapel Hill officials said the “material redacted from the closed minutes dealt with information that was tied directly to the purpose of the closed meeting.”
UNC-Charlotte identified many more topics discussed in closed session, but limited the amount of discussion surrounding the subject.
“We want the minutes to be sufficiently detailed to give the public an understanding of what was discussed, but not so detailed that a release of the minutes would necessitate significant redaction or frustrate the purpose of going into closed session in the first place,” UNC-Charlotte spokesperson Buffie Stephens said. “There are times when that isn’t possible, of course, and in those instances the University would withhold those minutes from inspection to the extent permitted by the statute.”
Contrast that with Fayetteville State University, which released the minutes from seven closed sessions its board of trustees held in 2017 eight days after they were requested. All of the minutes included thorough accounts of what occurred during all of the meetings, including who spoke when. All of the meetings involved personnel matters and involved hiring vice chancellor positions, promotions and a pay increase for Tier 1 employees.
None of the minutes were blacked out or appeared to have been altered.
Todd Davis, assistant general counsel at UNC-Greensboro, responded to the records request after several calls to the Office of General Counsel and Office of the Chancellor. Davis and his office stopped responding to update requests after emailing four documents Jan. 24.
Officials with the state’s new elections and ethics agency provided heavily redacted minutes for the one closed session held by the elections board last year.
The records show that in the middle of a public meeting held Feb. 22 by teleconference, the board went into closed session to talk about two lawsuits involving election laws and the board merger. Spokesperson Pat Gannon said the minutes were redacted under state law that protects the board’s privacy as it consults with its attorneys about ongoing litigation. He provided records from the public meeting that he said the board may have reviewed in its closed session.
Jones said the agency appears to have complied with the law on those minutes, but he questioned whether the four paragraphs the agency provided were enough to describe what appeared to be a lengthy closed session.
“The Open Meetings Law requires a general account be kept so that anyone not in attendance would be able to follow along,” Jones said. “It’s hard to know, though, since it is redacted and they can withhold that portion of the minutes so long as it would ‘frustrate the purpose’ of the closed session.”
Gannon said the closed session minutes accurately reflect what happened, but added that the board would take care to make more detailed minutes of closed sessions in the future.
As for the ethics commission, Gannon cited state law in declining to provide any documentation of its closed sessions, aside from minutes of open sessions that explain why the board planned to go behind closed doors. In all three meetings, the commission reported that it needed to consult with attorneys about the court case involving the board merger.
"Counsel reviewed those, and everything is still confidential,” Gannon said.
The Alamance County Board of Commissioners had a similar response to requests from reporters. County attorney Clyde Albright said the three closed or executive session meetings from 2017 are exempted from disclosure because they are related to the personnel file of the new county manager and pending lawsuits.
In many cases, Jones said, what ends up being redacted is ultimately a judgment call. But he said the shorter the account of the meeting, the more doubt there is about whether public boards are keeping with the spirit of the law.
“What we should be seeing is only the amount of redaction to avoid hurting the process they went into closed session for,” Jones said.
Closed meetings not always clear cut
There are cases when open government advocates say public boards veer too far from transparency.
The Fayetteville City Council and its committee overseeing a $33 million minor league baseball stadium project released minutes from 34 closed meetings in response to the January requests. Four of the meetings involved discussions about the baseball stadium and private construction going on around it.
Boards often cite attorney-client privilege when going into closed session. And on May 8, the council cited that exemption for a closed session that included David Lane, general manager for the Astros baseball team that will play in Fayetteville’s new stadium. Lane expressed concerns on behalf of the Houston Astros about the stadium design, the minutes said.
Jones, the director of the North Carolina Open Government Coalition, took issue with the board’s rationale for going behind closed doors.
“The presence of the Astros representative destroys the attorney-client privilege,” Jones said. “The meeting could not legally be closed for attorney-client communications with him in the room.”
“If the basis for a closed session is attorney-client privilege, essentially the only thing they can do is get legal advice. That advice doesn’t have to relate to litigation,” Martin said. “It could be a lawyer explaining a contract or legal issues related to something going on.”
Karen McDonald, the city’s attorney, disputed that analysis of the open meetings law.
“The attorney-client exception allows the council (a public body) to go into closed session to consult with an attorney employed or retained by the public body in order to preserve the attorney-client privilege,” McDonald said. “This exception also permits other persons to participate if their presence is necessary to the issue being discussed.”
Frayda Bluestein, the professor at the UNC School of Government, said the system as it stands puts a lot of discretion in the hands of elected and appointed officials, who are charged with making decisions about when they should discuss issues in secret. That’s not necessarily a bad thing, she said.
“There is some trust whenever you have a situation where they’re going into closed session,” Bluestein said.
But Martin said that discretion also gives public boards the power to go beyond just the letter of the law.
“The statute is all about minimums, and it sets out the lowest common denominator standard that public officials have to do,” Martin said. “But in a lot of circumstances and a lot of cases, a local public body can choose to do more for public transparency.”
This story was reported by Emery Dalesio, of the Associated Press; Christina Elias, of the Burlington Times-News; Jim Morrill and Ann Doss Helms, of the Charlotte Observer; Monica Vendituoli and Steve DeVane, of the Fayetteville Observer; Scott Bolejack and Andy Specht, of the News & Observer; Shawn Flynn, of Spectrum News; Brandon Wissbaum, of WECT; Tyler Dukes and Kelly Hinchcliffe, of WRAL News; and Jason deBruyn, of WUNC.