What is meant by the burden of going forward and why should that burden be on the governmental body?
Chapter 21.6(2) notes: “Once a party seeking judicial enforcement of this chapter demonstrates to the court that the body in question is subject to the requirements of this chapter and has held a closed session, the burden of going forward shall be on the body and its members to demonstrate compliance with the requirements of this chapter.” What is meant by the “burden of going forward” and why should that burden be on the governmental body?
This subsection provides for a shift in the burden of going forward in an action to enforce the requirements of the Act. Ordinarily in litigation, the burden is on the complaining party (the plaintiff) to show that a requirement of a law has been violated. Chapter 21.6(2) provides an exception to that general rule. Whenever the plaintiff can show that (1) the defendants are members of a governmental body subject to the requirements of the Act and (2) the defendants have held a closed meeting, the burden of going forward shifts to the defendants. The governmental body and its members must show by a preponderance of the evidence that the requirements of Chapter 21 were followed.
The shift in the burden to governmental bodies and their members is fundamental to the intent of the open meetings law. Evidence of compliance with the requirements for closing a meeting is largely in the possession of the governmental body and its members. They are in a much better position to prove compliance than a typical plaintiff is to prove non-compliance. Also, placing the major burden on a party that has closed a meeting is in harmony with the express purpose of the Act: to maximize public access to governmental decision-making. Those who curtail public access by closing meetings are rightly assigned the duty of defending the legality of such closure.