It’s Not a Game of Hide and Seek:
A Refresher on Iowa Open Meetings and Records Laws
The Iowa League of Cities Annual Conference
Thursday, Sept. 22, 2011
DISCUSSION ANSWERS
Prepared by Kathleen Richardson
Executive secretary, Iowa Freedom of Information Council, Drake University
1) Members of the City Council enjoy getting together for coffee one morning a week at the local diner. If a majority of the members are together at one time, does it constitute a “meeting” as defined in Chapter 21, the open meetings law?
Iowa Code Chapter 21 (the Open Meetings Law) and the First Amendment right to association protect the right of government officials to meet for social purposes — SO LONG as (1) there is no discussion of policy and (2) no intent to avoid the purposes of the public meetings law. Ch. 21.2(2) also exempts members meeting for “ministerial” purposes. Example of ministerial purposes: signing documents, civic events.
a) The City Council, Board of Supervisors and School Board plan to meet as a group to talk with a consultant who is working on plans for an expensive drainage project. The project has been very controversial in town. The city attorney calls the editor of the local newspaper and tells him not to bother to come to the gathering, because it is merely an informational “drainage seminar” and not an open meeting. What do you think? How should this situation be handled?
Courts have said that meeting to gather information, even if officials ask questions, is NOT deliberation, so long as members don’t discuss their opinions. According to a 1981 Attorney General’s opinion, a gathering becomes an official meeting “if a majority of the members of a body engage in any discussion that focuses at all concretely on matters over which they may exercise judgment or discretion.” Obviously, it is important for officials to be cautious. It is also important for government officials to keep in mind the stated purpose of the open meetings law: to assure that the “basis and rationale of governmental decisions, as well as those decisions themselves, are easily accessible to the people. Ambiguity . . . should be resolved in favor of openness.” (Ch. 21.1) This is especially true when the meeting involves an issue in which there is a high degree of public interest.
2) Members of the City Council want to discuss a controversial development project, but don’t want to talk about it in public session.
a) They discuss it through a series of e-mails among one another. Are they violating the public meetings law?
Probably not. In 2009, a citizen claimed that government officials violated the open meetings law when they exchanged a series of phone calls and e-mails before signing a letter, but never met in a quorum. The Iowa court of appeals rules that this communication did not constitute “deliberation” and thus did not violate the law. (Not that these sorts of serial communications are always a GOOD practice! Citizens frequently complain about being left out of the deliberative process when actions at public meetings seem like mere rubber-stamping of decisions that were made behind closed doors.)
There have been attempts in recent years to amend the Iowa public meetings law to include “serial meetings” or “walking quorums” in the public meeting requirements. (Other states have such laws.)
b) A citizen requests copies of the e-mails. Are the e-mails public records under Chapter 22, the public records law?
Yes. The definition of a public record in Chapter 22 (the public records law) is broad enough to include electronic communication: “All records, documents, tape, or other information . . . in any medium, of or belonging to this state or any county, city, township, school corporation, political subdivision,” etc.
c) They hold a meeting with local businessmen, but rotate in and out of the meeting so there is never a quorum of public officials present. Are they violating the public meetings law?
Again, this is probably not a technical violation of the law (because a quorum is never present), though it is clearly a violation of the SPIRIT of the law.
d) A majority of the members of the City Council are online at the same time through Instant Messenger, chatting about city business. Does their chat constitute a “meeting” for purposes of the open meetings law?
This is closer to the Chapter 21 definition of a meeting (“a gathering in person or by electronic means, formal or informal, of a majority of the members of a governmental body”) — more like a conference call. If a complainant could prove that the Council members are meeting simultaneously online, there could be a problem.
3) The City Council is considering turning an empty downtown building into a city recreation center. It names a task force to study the plan.
a) Is the task force subject to the open meetings law?
Subcommittees of public bodies are one of the trickier areas of the open meetings law. The task force must meet the definition of a “government body” under Chapter 21.2 in order to be REQUIRED to comply with the law:
· It is created by statute or executive order.
· It is a board, council, commission or other body of a political subdivision of the state.
· It is a subcommittee FORMALLY AND DIRECTLY created by a governing body.
A government unit is more likely to be required to follow the open meetings law if it is a standing committee, formally created by the parent body and has some sort of “policy-making authority,” not just advisory in nature. Courts have said that even when the main committees just routinely accept the recommendations of the subcommittee, the recommendation is still advisory. (A non-profit organization is usually not covered by the public meetings law, even if it receives government money. However, the Legislature recently amended the law to require the Iowa Association of School Boards to comply with the open meetings and records laws. In 2006, it required joint government agencies established under Chapter 28E to comply with the laws.)
ON THE OTHER HAND: Nothing in the open meetings law REQUIRES that a meeting be done in secret. In many instances, good public policy and public relations would encourage government officials to conduct subcommittee meetings in public.
b) Are the minutes of the task force meetings and the reports produced by the task force public records?
The definition of a public record in Chapter 22 (the public records law) is much broader than that of a public meeting: “All records, documents, tape, or other information . . . in any medium, of or belonging to this state or any county, city, township, school corporation, political subdivision,” etc. So even if the body is not required to comply with the open MEETINGS law, its records very likely fall under the open RECORDS law.
c) Instead of converting an empty city building, the Council is considering selling the building. Can the Council go into closed session to discuss the sale?
The Legislature in 2011 changed the open meetings law (Ch. 21.5(1)(j)) to allow a closed meeting to discuss not only the purchase of real estate but also the sale of government real estate, when doing so in open session would reduce the price the government would receive for the property. The audio recording of the closed session and minutes are public record once the sale is completed.
4) The city is debating whether to approve a large property tax break for a business that is considering moving to town. The City Council meets on Tuesday. The agenda that is submitted to the local newspaper for publication on the Friday before the meeting contains no mention of the tax break. But on Monday, 24 hours before the meeting, the council posts a new, revised agenda that includes a vote on the tax break.
a) Can the City Council take up the tax break at its Tuesday meeting without violating the notice provision of the public meetings law?
In order to comply with Ch. 21.4, the agenda just needs to be posted, in a prominent place, 24 hours before the beginning of the meeting. So the Council CAN take up the tax break at its meeting, even if a different agenda was published in the paper, so long as the official agenda posted 24 hours in advance included the tax break. (Whether it SHOULD take up the tax break when it gave the newspaper a different agenda is another matter.)
b) What if the tax break WASN’T on the agenda at all? When can the Council take up an item that isn’t on its meeting agenda?
The Iowa Supreme Court has said that a tentative agenda can be subject to change, that a government body can discuss and take action on last-minute EMERGENCY items without violating the law. However, the court also said that “if action can be reasonably deferred to a later meeting, this should be done.”
c) If the Council wants to discuss the tax break at its meeting, does it have to allow members of the public to comment?
There is no legal requirement that a government body allow public comment at its meeting. However, good public policy (and public relations) should encourage government officials to allow some sort of public input into the decision-making process. Ch. 21.7 (which allows the public to use cameras or recording devices at public meetings) also allows a government body to make and enforce “reasonable rules” to assure that meetings are orderly and free from interference or disruption.
d) The Council members have packets of information that they consult during the discussion of the tax break. Do they have to share those packets with the public?
Yes. The definition of a public record under Ch. 22.1 would cover the Council members’ packets of information. So any provisions of the public records law that apply to examination and copying of records would apply to the packets.
e) The Council posts an agenda that includes discussion of the tax break. The meeting is very contentious and runs long, and it is getting close to midnight. Weary council members decide to recess the meeting. They announce that they will reconvene at 7 p.m. the next night in the same place. Do they have to post a second notice for that reconvened meeting with another agenda?
What if the town tornado sirens go off, and everyone is forced to go into the building’s basement for two hours? Can the Council recess the meeting and then reconvene without violating the notice provision of Chapter 21?
According to changes made in Chapter 21 during the 2011 legislative session, legal notice is required of each meeting, including reconvened meetings. The exceptions are:
· When a meeting is recessed, then reconvened within four hours of the start of the recess, where an announcement of the time, date, and place of the reconvened meeting is made at the original meeting in open session, recorded in the minutes, and there is no change in the agenda.
· A formally constituted subunit of the parent government body can meet during a lawful meeting of the parent body, during a recess in that meeting of up to four hours, or immediately after the meeting. The meeting of the subunit must be publicly announced in open session at the parent meeting and the subject of the meeting must reasonably coincide with the subjects discussed or acted upon by the parent body.
5) The City Council’s tentative agenda for its meeting every month reads: “Approval of minutes. Old business. New business.” Is that legally sufficient notice?
No, that probably wouldn’t be considered “reasonable notice.” The minimum requirement for a tentative agenda, as interpreted by the Iowa Supreme Court, is that the information is “reasonably sufficient to alert interested people as to the subject matter to be considered.” However, the Court hasn’t been hard-line about this; if a public agency is acting in good faith and substantially complies with the law, that is sufficient
a) The minutes of the meeting tell how members voted, but don’t include any description of the discussion, especially if there isn’t a vote on a topic. Are the minutes legally sufficient?
Consider the purposes of keeping minutes:
(1) To comply with the public meetings law and other provisions of the Iowa Code that require a public body to keep minutes and publish them.
(2) To provide a historic record of a government body’s deliberations and actions.
(3) To allow people who couldn’t attend the meeting to know what occurred.
Ch. 21 requires only that the minutes contain the date, time, place, members present and action taken. However, fulfilling those barebones legal requirements might not be sufficient for the next two needs. While a government body must keep in mind the COST of publishing minutes, it also has to keep in mind its responsibility to keep the public informed of its activities and to keep a record of its activities for future officials.
The Iowa League of Cities website advises that “the minutes that are published must match the official minutes that are retained permanently by the city.”
6) The City Council is interviewing candidates for city administrator. Council members want to keep the names of the applicants secret and conduct the interviews behind closed doors. Can they do that?
Both the public records and the public meetings laws are implicated here:
The Iowa Supreme Court has said that public agencies can make job applications confidential under 22.7(18), IF they could “reasonably believe” that people would be discouraged from applying if applications were public.