9 Official Opinions of the Compliance Board 46 (2013) Closed Session Procedures – Written Statement • Practices in violation – omitting reason

for closing and topic to be discussed • Failure to provide written statement to public at time of closing Compliance Board – Authority and Procedures Generally – Provision of written closing statement to Board when person objects to closed session Exceptions Permitting Closed Sessions – Business Relocation, §10-508(a)(4) • Particular businesses’ proposal to relocate in city *Topic headings correspond to those in the Opinions Index (2010 edition) at http://www.oag.state.md.us/opengov/openmeetings/appf.pdf

October 1, 2013 Re: Baltimore Development Corporation Kevin Litten, Baltimore Business Journal, Complainant We have considered the complaint of Kevin Litten and the Baltimore Business Journal, (“Complainants”), that the Board of Directors of the Baltimore Development Corporation (“BDC”) violated the Open Meetings Act (the “Act”) on July 25, 2013 by meeting in a closed session without first preparing a written statement that contained all of the disclosures required by the Act.1 Complainants specifically allege that BDC failed to disclose the topics that the members intended to discuss and that the public therefore has had no way to determine whether the session was properly closed.
Complainants cite § 10-508(d)(2) of the State Government Article, which provides: Before a public body meets in closed session, the presiding officer shall: (i) conduct a recorded vote on the closing of the session; and (ii) make a written statement of the reason for closing the meeting, including a citation of the authority under this section, and a listing of the topics to be discussed.
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We have recognized in the past that it can be difficult for a public body to disclose the topics to be discussed at a closed meeting without giving away the information that the Act permits the public body to keep secret. Here, however, we are not persuaded by BDC’s generalized assertion that it could only provide a bare recitation of the statutory provision on which it relied as authority for meeting behind closed doors. We therefore find that the BDC violated the Act by failing to provide meaningful information on either the topics to be discussed in the closed meeting or the reason for excluding the public from its discussion of those topics. As to whether the three topics actually discussed during the sixminute closed session fell within the statutory exception cited by BDC, we find that two fell comfortably within that exception, and we can make no determination on the third. Finally, we find that BDC did not send us a copy of its written statement promptly after the meeting, as is required whenever a member of the public objects to a public body’s decision to meet in closed session under SG § 10-508. Background On July 25, 2013, the BDC Board met in a public session to discuss a number of development projects in the City of Baltimore. Complainant Litten attended the meeting. According to him, a board member stated early on that there would be a need to hold a closed session at the end of the meeting. Then, during committee reports, a member called for a closed session under State Government (“SG”) § 10-508(a)(4), the provision of the Act that permits a public body to close a meeting to “consider a matter that concerns the proposal for a business or industrial organization to locate, expand, or remain in the State.” At the end of the meeting, a member moved to close the session under that statutory provision, which is often referred to as the “business location exception,” and the members voted unanimously to do so. After the board voted to close the meeting to the public, Mr. Litten, who is not a member of the BDC Board, asked to be recognized. The presiding officer declined the request, and Mr. Litten asked that the minutes reflect the fact that a member of the public had objected to the board’s decision to close the meeting. Later that day, Mr. Litten requested by email that BDC provide him with the presiding officer’s written statement of the reason for closing the meeting, the topics to be discussed, and the specific provision of the Act that the Board claimed as authority for discussing those topics behind closed doors. Mr. Litten cited the provision of the Act, SG § 10-508(d)(2)(ii), that requires the presiding officer to make those three disclosures in a written statement. Mr Litten stated that he had not been allowed to make the request at the meeting. Apparently in response to Mr. Litten’s request for the written statement for the July 25 closed session, BDC’s president issued a written announcement. The announcement summarized the events of the open session, described Mr. Litten’s objection to the vote to close the session as an objection to a lack of notice that part of the session would be closed, and

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stated that BDC had consulted the City’s Law Department. The announcement then attributed to the Law Department a communication that “‘[t]he statement that Mr. Litten refers to is not required to be issued prior to the meeting happening.’” As quoted by BDC, that communication further stated that “‘most public bodies incorporate that statement in their minutes published after the meeting.’” The communication quoted by BDC also stated that the Act does not require public bodies either to provide a meeting agenda in advance or to adhere to an agenda. In response to the complaint, BDC provided us with the minutes of the open meeting, the sealed minutes of the closed session, the written statement that its presiding officer prepared at the time the meeting was closed, and argument. The minutes are not inconsistent with the Complainants’ account. The sealed minutes, which we are required to keep confidential under SG § 10-502.5(c)(2)(iii) and will describe only generically, list three separate topics of discussion. The first topic appeared to summarize work done by BDC generally and not to any specific proposal; given the brevity of the meeting, it might have been in the nature of an introduction to the next two topics. Each of the next two topics involved the proposal by a particular business or industrial organization to locate, expand, or remain in the City. The written statement was prepared on the model “Form of Statement for Closing a Meeting” formerly attached as exhibit C to the Attorney General’s Open Meetings Act Manual. The model form contains spaces for each of the three disclosures that SG § 10-508(d)(2) requires the presiding officer to include in a written statement before the public body meets in closed session.2 First, the presiding officer must cite the applicable statutory exception on which the public body will rely to exclude the public. BDC’s written statement bears a check next to SG § 10508(a)(4), the business location exception. Second, the presiding officer must provide a “listing of the topics to be discussed.” The space under that heading on BDC’s statement was left blank. Finally, the presiding officer must include the “reason for closing the meeting.” That space was also left blank. In its argument, BDC asserts that the statutory language of the business location exception “was a sufficient description of the topic to be discussed during the closed session as it was not possible for BDC to give the name of any entity that is considering relocating, expanding or remaining in the State or the challenges faced by that entity without undermining the very reason for the exception.” BDC further asserts that “this was the only topic discussed in the six minutes that the meeting was closed.” (BDC’s emphasis). BDC then states that “any detail about what was actually discussed would not have been known prior to the closed
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For the text of SG § 10-508(d)(2), see footnote 1. The model form was slightly revised in 2012 and is available at http://www.oag.state.md.us/Opengov/ Openmeetings/AppC.pdf.

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meeting. Anything more would have amounted to an agenda that the Board would have been required to follow, and the law is clear that this is not required.” Overall, BDC asserts that “its reason for closing and the topic to be discussed are, in fact, succinctly stated in the exception in Section 10508(a)(4).” Discussion We have often explained the separate functions of the three disclosures that a public body must make, in a written statement, before it meets in a closed session. We gave one such explanation in 4 OMCB Opinions 46, 48 (2004). We reproduce it here in a footnote 3 and work from it. Briefly, the written statement of the topics to be discussed and reasons for closing allows the members to cast an informed vote on whether the claimed reason is sufficient to depart from the Act’s norm of openness—that is whether it “really is necessary” to exclude the public. Id. A properly drafted statement also enables members of the public to understand why they are being excluded and, later, to ascertain from the summary of the closed session whether the members adhered to the topics they identified. See id. The question here is whether BDC’s mere citation to the statutory exception fulfilled those functions. The crux of BDC’s argument is that the topics are self-evident from the words of the business location exception and that the reasons for closing
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In 4 OMCB Opinions 46, 48 (2004), available at http://www.oag.state.md.us/ Opinions/Open 2004/4omcb46.pdf, we explained: The written statement requirement serves several objectives, none of which can be achieved if the statement merely consists of a statutory citation and a bit of cryptic boilerplate. First, the written statement gives the public body one last opportunity to consider whether a closed session really is necessary. The written statement of the reason, in particular, enables each member of the public body, before voting, to consider whether the reason is sufficient to depart from the Act’s norm of openness. Second, the written statement helps enable members of the public who will be barred from the closed session to understand that this exception to the principle of openness is well-grounded. Finally, the written statement is an accountability tool, for an interested observer can compare what is said in the written statement preceding the meeting with what is said in the minutes summarizing the actual conduct of the meeting, and infer whether the public body hewed to the topic that justified the closing. . . . . . . Someone reading the written statement ought to have the answer to two questions: what are the [members] planning to talk about (“topics to be discussed”), and why should this topic be discussed in closed session (“the reason for closing the meeting”). *** An observer is not obliged to consult external sources in order to learn what the topic of the closed meeting is to be. In addition, the statement omits any account of the reason for closing the meeting. That [the reason] may be apparent upon reflection is no excuse for omitting it, or something similar, from the written statement.

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are evident from the topics. However, as we recognized in 7 OMCB Opinions 148-165 (2011), there can be many reasons for keeping a business location proposal secret: as in that case, the business might have insisted on confidentiality as to its identity, or the discussion might involve a known business’s confidential financial information, business plans, or, in BDC’s terms, “challenges.” Furthermore, not every business location proposal is secret; in that matter, the business in question had already announced its intentions at a public meeting. Id., see also 7 OMCB Opinions 225, 229 (2011) (discussing disclosures about business location topics). In short, both the need for secrecy and the amount of information that can be disclosed depend on the particular topic. Here, even after reading BDC’s sealed minutes, we do not know what, if any, reason for secrecy might have applied to the two topics that fell clearly within the exception. As BDC itself states that it could not provide more information about the topics of discussion until the discussion actually occurred, and in fact describes as one “topic” that which its sealed minutes described as three separate topics, it appears that the board members unanimously adopted a motion to close a meeting without knowing why they were doing so, let alone informing the public. For this exception, an example of a topic discussed might be “Company X’s facilities and workforce needs,” or, if Company X’s identity must be confidential, “the workforce and facilities needs of a particular company,” with a corresponding explanation in the “reasons for confidentiality” about why the public body is keeping Company X’s information confidential. If there is no reason to keep the information confidential, the meeting should be public. We find that the BDC Board violated the Act by meeting in closed session without first including in a written statement both the topics it intended to discuss and the need to discuss each secretly. We pause to specifically address BDC’s alternative argument that it could not identify, and was not required to identify, the topics to be discussed in closed session before the discussion had occurred. We construe BDC’s argument, perhaps incorrectly, to be that the Act does not require a public body to provide an “agenda” of the topics to be discussed in a closed session before the session occurs and that a public body may in any event change its agenda during the session. We emphasize: the Act requires a public body to identify, before it meets in closed session and in a written statement, the topics it intends to discuss there, and the members’ discussion must not go beyond those topics. See 4 OMCB Opinions at 48. 4 Ideally, a member who expects to present new information in a closed session will have conferred with the presiding officer, staff, or counsel before the meeting, if possible, so that the legality of, and need for, excluding the public might be evaluated and the wording of the disclosures considered.

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The rules for closed sessions thus differ markedly from those for open sessions, for which public bodies need not publish agendas and then adhere to them.

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We turn next to whether the topics discussed in the closed session actually fell within the business location exception. Our discussion is short because we must keep the contents of the sealed minutes confidential. As noted in the background section above, two topics qualified for the exception, and we cannot ascertain the extent to which the third so related to them as to also qualify. That leaves us with three mainly logistical questions that may arise when a member presents the need for a closed session during the open session, and the presiding officer, counsel, and staff know neither what the discussion will entail nor whether it will fall entirely within the proposed exception. The first question is how, under those circumstances, the presiding officer could draft a proper written statement that cites the correct exception, ensures that the members’ public vote is informed, and conveys the required information to the public, all while preserving the confidentiality permitted by the applicable exception. To address that challenge, the presiding officer might briefly recess the meeting to confer separately with counsel and the member who wants to close the meeting, so long as no quorum is formed. The presiding officer might also move to close the meeting under the exception provided for the receipt of legal advice, conduct that closed session solely to receive advice on how to proceed, and then reconvene the members in open session to present a written statement and call for them to consider and vote on a motion to close. In short, an ad hoc request for a closed session likely necessitates a pause in the proceedings. The Act neither requires nor permits members of a public body to vote to exclude the public from a meeting without information on the merits of that action. The second and third mainly logistical questions are when and how the written statement prepared during the meeting is to be made available to the public. As to the “when,” we have explained: The written statement . . . must be available at the time that the public body actually decides to go into closed session. This is so because the Act anticipates the possibility that someone in attendance will object: “If a person objects to the closing of the session, the public body shall send a copy of the written statement . . . to the [Compliance] Board.” §10-508(d)(3). 4 OMCB Opinions at 48; see also 5 OMCB Opinions 184, 187 (2007) (“Anyone in the audience who wants to see [the written statement] has a right to do so during the public portion of the meeting.”). As to the “how,” a person might request the statement while asserting his or her objection, or might make the request of staff, as directed by the presiding officer. When the presiding officer takes the written statement into the closed session, a practice we recommend as a way to remind that officer of the topics to which the discussion must be limited, we suggest that a copy be left with staff outside of the closed meeting. See, e.g., 8 OMCB Opinions 182, 183 (2013), available at http://www.oag.state.md.us/Opinions/Open2012/ 8omcb182.pdf (summarizing the steps for closing a meeting). And, if a

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member of the public has objected to the closing, a copy of the written statement must be sent to us. Conclusion The BDC Board violated the Act when it met in a closed session without disclosing in its written statement a listing of the topics to be discussed and the reasons for excluding the public from the discussion and when it failed to provide a proper written statement to Mr. Litten when he requested it. BDC also violated the provision of the Act that requires a public body to send us a copy of its written statement after a member of the public has objected to a decision to meet in closed session. Two of the topics discussed in the board’s closed session fell within the exception it had claimed, and we cannot reach a determination on the third. Open Meetings Compliance Board Elizabeth L. Nilson, Esquire Courtney J. McKeldin

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