The open meetings law requires all official meetings of public bodies to be open to the public. G.S. 143-318.10(a). However, government bodies can hold closed-door meetings, known as closed sessions, in certain limited circumstances. This post focuses on one of those limited exceptions—closed sessions held for the purpose of preventing the disclosure of confidential or privileged information—and is Part 4 of a series examining each of the closed session purposes.
Purpose (a)(1): Protecting materials that are privileged, confidential, or not public record
Under G.S. 143-318.11(a)(1), government bodies may enter closed session to prevent disclosing information that is confidential or privileged under state or federal law. This subsection also authorizes closed sessions to protect non-public information under Chapter 132 of the General Statutes.
Motions to enter closed session for this purpose have an additional procedural requirement. Rather than just stating the closed session purpose, the motion must also identify the law that makes the information confidential, privileged, or not public record. G.S. 143-318.11(c). The motion can provide the name of the law or a specific legal citation. Identifying the underlying authority allows the public to verify or dispute claims of privilege and confidentiality, promoting the open meetings law’s policy of transparency. Failing to identify the relevant confidentiality or privilege law violates the open meetings law and could subject a board to legal challenge, including a court to invalidating any actions taken within the closed session. G.S. 143-318.16A(a).
Let’s walk through the language of the statute.
“To prevent the disclosure of information that is privileged or confidential pursuant to the law of this State or of the United States…”
This closed session purpose protects privileged or confidential information. When information is privileged under state or federal law, it need not be disclosed to anyone outside the scope of the privilege. In fact, disclosing privileged information to a third party may waive or destroy the privilege altogether.
Information is privileged when common law or statute says it is. Common-law privileges are those that courts establish, rather than those that the General Assembly establishes through statute. A well-known example of a common-law privilege is the attorney-client privilege. While the General Statutes recognize attorney-client privilege, the statutes do not establish or create this privilege. Instead, this privilege has formed and evolved in the court system. Under North Carolina precedent, the attorney-client privilege applies to communications between attorneys and their clients if certain criteria are met, and courts have repeatedly upheld this relationship as a basis to keep certain materials confidential. Sessions v. Sloane, 248 N.C. App. 370, 385 (2016); Evans v. United Servs. Auto. Ass’n, 142 N.C. App. 18,31 (2001). Unlike common-law privileges, statutory privileges do appear in statute. Examples of state statutory privileges are marital communications (G.S. 8-56, –57), healthcare provider-patient privilege (G.S. 8-53), and journalist privilege (G.S. 8-53.11), to name a few. Subsection (a)(1) makes clear that federally recognized privileges may also serve as a basis to enter closed session under this purpose when applicable.
Privileged information is distinct from confidential information. While privileged information and materials should not be disclosed to third parties, confidential information and materials must not be disclosed to third parties. Disclosing confidential materials could result in statutory penalties or criminal charges depending on the applicable confidentiality statute. Information is confidential only if statute says it is. Labeling something “confidential” does not make it so, unless there is an applicable confidentiality statute. Even making certain information or materials subject to a non-disclosure agreement does not automatically change the legal status of those materials in the absence of a relevant confidentiality law. As with privilege, both state and federal confidentiality laws support this closed session purpose. Thus, information that is confidential under federal law is appropriate to discuss in closed session even if no state statute covers the relevant information. All in all, government bodies should consult with their attorney to ensure that there is a relevant privilege or confidentiality law covering the information they would like to discuss in closed session before using this purpose.
“…or not considered a public record within the meaning of Chapter 132 of the General Statutes.”
There is a subtle, though legally important, difference between the terms “confidential” and “not public record.” Confidential information and materials cannot be released at all without a designated statutory procedure or court order for release. Release of confidential information or records violates the law. In contrast, when records are “not public record,” that means that the public is not entitled to those records, but agencies can still release them without violating the law. In short, agencies may release records that are not public but are not legally required to do so. Agencies cannot release confidential records without violating the law.
Take public enterprise utility billing information, for example. Under G.S. 132-1.1(c), public enterprise utility billing information is any record or information that public enterprises, such as wastewater or solid waste, compile or maintain about customers relating to service provision. (See G.S. 160A-311 for a full list of public enterprises). Section 132-1.1(c) makes clear that these covered materials are not public records. However, nothing in the section establishes the confidentiality of these records. The section does not restrict the release of these materials or impose any penalties. For that reason, public enterprise utility billing information is neither confidential nor a public record. Other examples of materials that are neither confidential nor public record include sensitive public security information (G.S.132-1.7), certain emergency response plans (G.S. 132-1.6), and particular alarm registration information (G.S. 132-1.7A). Even though none of these materials are confidential, none of them are public record either, so they may still be discussed in closed session under subsection (a)(1).
In sum, for this closed session purpose to apply, at least one of the following must apply:
- The information the government body wants to discuss is privileged under state or federal law;
- The information the government body wants to discuss is confidential under state or federal law; or
- The information or records the government body wants to discuss are not public under Chapter 132 of the North Carolina General Statutes.
What actions does this purpose authorize?
Subsection (a)(1) focuses on preventing the disclosure of certain types of information but is not specific about the range of actions it authorizes. Government bodies should ask whether they could accomplish their desired action in open session without disclosing privileged, confidential, or non-public information. If not, the action is likely appropriate for closed session under this subsection.
Actions authorized under this purpose include discussion and some kinds of votes. If releasing closed session minutes would frustrate the underlying closed session purpose, a board can vote to approve the minutes in closed session under this purpose. That closed-session vote is directed toward preventing the disclosure of privileged information and is therefore consistent with the statutory mandate. Voting to seal certain records may also be authorized under this closed session purpose if the records qualify as confidential, privileged, or not public record.
Interaction with other closed session purposes
In practice, subsection (a)(1) may cover discussions that are also relevant to another closed session purpose. For example, discussing attorney-client communications in closed session is appropriate under (a)(1) because these communications are privileged under state law. These discussions might also be appropriate for closed session under (a)(3), the attorney-client privilege provision. Similarly, discussing personnel file records in closed session is permissible under (a)(1) because they are confidential under several different statutes, but could also be permissible under (a)(6) if the records are connected to considering a particular employee’s overall job performance. (See e.g., G.S. 160A-168 (city employees), G.S. 153A-98 (county employees), G.S. 126-22 (state employees)).
When multiple closed session purposes might apply, what purpose should the motion to enter closed session cite? A starting point may be to analyze the ultimate objective of the closed session and to pick the more specific purpose. Is the true purpose of the closed session to instruct the attorney on how to settle a dispute? If so, the (a)(3) purpose is more closely aligned to that task than the (a)(1) purpose. Alternatively, is the main goal of the closed session to decide whether to fire an employee? If so, subsection (a)(6) contemplates this action more specifically than does subsection (a)(1). The simplest and most cautious approach is likely to cite as many purposes as might be applicable.
The key to applying this closed session purpose correctly is to ensure that an appropriate privilege or confidentiality law applies to the underlying discussion or to ensure that the discussion involves non-public records or information. The next installment of this series will deal with the economic development closed session purpose. Stay tuned!