Behind Closed Doors: Understanding the Rules of Executive Session Disclosure
We’ve written about the Texas Open Meeting Act many times before, but from a legal standpoint, what happens if someone reveals what happened in Executive Session? The answer might be somewhat surprising.
Common sense dictates that if something is allowed to be discussed in closed session, it should have to stay in closed session. In fact, under the Texas Open Meetings Act (TOMA), it is a class B misdemeanor to knowingly disclose a certified agenda or recording of a Closed Session. There are also moral and ethical considerations to revealing conversations which are intended to be private and protected. However, is it a crime to verbally disclose to someone outside of that closed session what happened?
Under TOMA, probably not. In 2022, Hardy v. Carthage Independent School District, the Court wrote in a memorandum opinion that Texas Government Code §§ 551.146(a) is not “a blanket prohibition against testifying about conversations occurring in a closed meeting, it merely penalizes disclosure of the certified agenda or recording—nothing more.” While there are specific prohibitions against disclosing the official written or audio record, the courts have not ruled against verbal disclosure under TOMA.
The Open Meetings Act Handbook, issued by the Office of the Attorney General of Texas, further states that this interpretation of section 551.146 is “further corroborated by” Attorney General Opinion JM-1071, which construed section 551.146’s statutory predecessor to not prohibit persons present at an executive session from afterwards talking about the subject matter of the session. This further supports the Court’s interpretation of Executive Session rules.
It is important to note that these decisions focused only on the requirements under TOMA. There are other legal considerations outside of TOMA which could also come into play in certain circumstances. For example, under Texas Penal Code section 39.06 it is a crime for a public servant to misuse official information. Misuse of official information pertains to using information that an individual has access to by virtue of the person’s office or employment which has not been made public. In relevant part, the statute reads:
A public servant commits an offense if with intent to obtain a benefit or with intent to harm or defraud another, he discloses or uses information for a nongovernmental purpose that:
(1) he has access to by means of his office or employment; and
(2) has not been made public.
There are also other considerations such as waiving attorney client privilege if an executive session item falls under the exception for attorney consultation.
Ultimately, the best practice is to keep conversations that occur in executive session private, both for continuity of the governing body and out of a general abundance of caution. However, it’s interesting that TOMA itself does not take away from an individual’s rights to freedom of speech in this regard (other than disclosing the certified agenda or an audio recording). So, if you find yourself serving on a public body in Texas and you participate in closed sessions, be aware. What happens in executive session, doesn’t always stay in executive session.
Please do not rely on this article as legal advice. We can tell you what the law is, but until we know the facts of your given situation, we cannot provide legal guidance. This website is for informational purposes and not for the purposes of providing legal advice.
