Reasons for Closing Meetings
Chapter 21 permits the closing of a meeting for any one of 12 reasons. Why?
As noted in Chapter 21, at the end of the list of exemptions and discussions about the conduct of closed meetings: “Nothing in this section requires a governmental body to hold a closed session to discuss or act upon any matter.” The list of exemptions, therefore, is not a list of when meetings are required to be closed; rather, the exemptions suggest under what conditions public agencies may consider whether to close a meeting. As noted in an Attorney General’s opinion (Stork to O’Kane, 81-7-4), “Discussion during a closed session … must relate directly to the specific reason announced as justification for the session.”
Exemptions (a) through (l) of Chapter 21.5 embody a legislative effort to address countervailing interests. Several key exemptions are discussed below.
“a. To review or discuss records which are required or authorized by state or federal law to be kept confidential or to be kept confidential as a condition for that governmental body’s possession or continued receipt of federal funds.”
Problems might arise if a governmental body lacked discretion under Chapter 21 to discuss confidential records in closed session. Discussion open to the public could violate the law allowing the confidentiality of a record; discussion closed to the public would violate the open meetings law without this exemption.
Examples of laws allowing for the confidentiality of certain records include the Family Educational Rights and Privacy Act of 1974 (making confidentiality of student records a condition for federal funding) and Chapter 22.7 of the Iowa Code allowing (but not mandating) the confidentiality of specified public records. In effect, each time Chapter 22.7 is amended to provide confidentiality for a government record, a new exemption for closing a public meeting may likewise be created.
In 2007, lawmakers amended Chapter 21.5 to explicitly allow a closed session to discuss records kept confidential under Chapter 22.7, subsection 50, which involves information about government emergency preparedness and security procedures.
In 2008, the Legislature further linked the open meetings and records laws by adding a subsection to Chapter 22.7 that permits a government body to keep confidential “information in a record that would permit a governmental body . . . to hold a closed session . . . in order to avoid public disclosure of that information.” However, non-confidential information in the record shall be released to the public. The confidentiality provision expires after the government body takes final action on the matter or in 90 days, unless the agency can prove that final action was not possible within that period.
“c. To discuss strategy with counsel in matters that are presently in litigation or where litigation is imminent where its disclosure would be likely to prejudice or disadvantage the position of the governmental body in that litigation.”
Certain conditions must be met before a meeting may be closed under this exemption: (1) The litigation must be in progress or be “imminent,” not merely possible or likely at some future date, (2) if the litigation is “imminent,” the disclosure of strategy would likely prejudice or disadvantage the governmental body’s case, and (3) legal counsel should be present. In Tausz v. Clarion-Goldfield Community School District, 569 N.W.2d 125 (Iowa 1997), the Supreme Court emphasized that attorney-client privilege does not extend to all communications between government agencies or officials and their attorneys, and must be examined on a case-by-case basis.
“e. To discuss whether to conduct a hearing or to conduct hearings to suspend or expel a student, unless an open session is requested by the student or a parent or guardian of the student if the student is a minor.”
This exemption permits a closed session at two stages of disciplinary action against a student. The first stage, deciding whether to conduct a hearing, may be closed at the discretion of the governmental body. The second stage, the hearing itself, also may be closed unless the student or the parent or guardian, if the student is under 18, requests an open session. (The student, parent or guardian has no right to demand a closed hearing under this exemption.) The final action of the school board must be taken in open meeting, but to protect the confidentiality of the student, the motion to expel or suspend the student should not identify the student by name.
In Schumacher v. Lisbon School Board, 582 N.W.2d 183 (Iowa 1998), the Iowa Supreme Court ruled that the Lisbon board had violated the open meetings law when it held a closed hearing (at the request of a school aide) to consider disciplining a high school student, even though the parents of the student had asked for a public hearing.
Because disciplinary actions may involve student records otherwise considered private, the Iowa Association of School Boards recommends that a board obtain, from the student, parent or guardian who wants an open session, a written request and permission for disclosure of the records.
“f. To discuss the decision to be rendered in a contested case conducted according to the provisions of Chapter 17A [The Administrative Procedure Act].”
This exemption is rather unambiguous, and applies only to state agencies. A contested case under Chapter 17A is similar to a court trial. It is presided over and decided by one or more hearing officers (similar to judges) for disputes about rates, prices, licenses and the like.
“g. To avoid disclosure of specific law enforcement matters, such as current or proposed investigations, inspection or auditing techniques or schedules, which if disclosed would enable law violators to avoid detection.”
“h. To avoid disclosure of specific law enforcement matters, such as allowable tolerances or criteria for the selection, prosecution, or settlement of cases, which if disclosed would facilitate disregard of requirements imposed by law.”
The public is interested in effective and efficient enforcement of the law. Persons who want to violate a law might do so with reduced fear of prosecution if they know what the prosecution tolerances, investigative schedules or investigative techniques are.
“i. To evaluate the professional competency of an individual whose appointment, hiring, performance or discharge is being considered when necessary to prevent needless and irreparable injury to that individual’s reputation and that individual requests a closed session.”
This exemption permits public agencies to protect individual reputations but does not allow closed sessions for each and every discussion of “personnel” matters. Its scope is wide and includes any evaluation of an individual’s professional competence occasioned by consideration of that individual’s appointment, hiring, performance or discharge. It would, of course, be unreasonable and inconsistent with the intent of Chapter 21 to apply this exemption to evaluations of corporate or business “entities.” Such entities, which do not have personal privacy interests at stake, cannot require a closed meeting for discussion of their qualifications.
The potential breadth of this exemption is somewhat offset by the two conditions that must be met before a meeting may be closed under this exemption: (1) the individual involved must request a closed session, and (2) there must be reasonable basis to believe the individual’s reputation would be injured irreparably and needlessly unless the meeting is closed. (The construction here may allow irreparable injury if that is unavoidable in serving the public interest.)
An advisory opinion issued by the Iowa Public Information Board on Feb. 20, 2014, confirmed that the individual evalulated must request the closed session.
The exemption provides no right for the person who is the subject of discussion to attend the session closed by request; nor does it forbid such attendance. In Feller v. Scott County Civil Service Commission, 435 N.W.2d 387 (Iowa 1988), the Iowa Court of Appeals limited a public agency’s discretion in deciding whether to honor a request for a closed session. The Court ruled that there could be basis for a lawsuit if a public agency denied a request for a closed session in arbitrary and capricious fashion.
“j. To discuss the purchase or sale of particular real estate only where premature disclosure could be reasonably expected to increase the price the governmental body would have to pay for that property or reduce the price the governmental body would receive for that property. The minutes and the audio recording of a session closed under this paragraph shall be available for public examination when the transaction discussed is completed.”
A meeting may be closed under exemption (j) only when public discussion of the possible purchase or sale of particular real estate could be reasonably expected to increase the price demanded of that property or decrease the amount the government would receive in a sale. The economic public interest that this exemption is intended to serve is clear. The exemption does not allow closed sessions for discussion of real estate in general.
If a session is closed under this exemption, the records of that closed meeting must be made available for public examination when the transaction is completed or canceled.
Under Chapter 21.5(4) the minutes and tape recording of any closed session must be kept at least one year. If more than a year should elapse between a meeting closed under Chapter 21.5(1)(j) and the completion of the real-estate transaction, the record of that closed session should be kept for a reasonable time after the completion of the transaction so it can be available for public examination.
“l. To discuss patient care quality and process improvement initiatives in a meeting of a public hospital or to discuss marketing and pricing strategies or similar proprietary information. . . .”
In 2008, the Legislature amended Chapter 21 to allow the boards of public hospitals to hold closed sessions under some circumstances.
However, the closed meetings are allowed only when (1) public disclosure would harm the hospital’s competitive position, and (2) no public purpose would be served by public disclosure. When public disclosure would no longer harm the hospital’s position, the minutes and recording of the closed session shall be made available to the public.
This provision does not apply to discussions of employment conditions or employee compensation.