Secret Agents: Can a governmental body prohibit the disclosure of information discussed in closed meetings?

by | Apr 21, 2021 | Texas Open Meetings Act

The Texas Open Meetings Act (TOMA) ensures that meetings of governmental bodies are open to the public. In limited circumstances, however, TOMA authorizes closed meetings, from which the public is excluded. Tex. Gov’t Code Ann. §§ 551.071-551.090.

The Texas Attorney General has opined that TOMA does not prohibit members of a governmental body from disclosing information discussed in closed meetings. Op. Tex. Att’y Gen. No. JM-1071 (1989). But at the same time, TOMA provides criminal penalties for disclosing the certified agenda or recording of a closed meeting. Tex. Gov’t Code Ann. § 551.146.

So one might think that a municipality or other governmental body could impose criminal penalties for disclosing information discussed in closed meetings.

And in fact, the City of Denton attempted to do so. But after facing criticism from the Freedom of Information Foundation of Texas (FOIFT), the city reversed its actions. In 2006, Denton adopted an ordinance prohibiting city officials from disclosing information discussed in a meeting closed to the public in accordance with TOMA. What made the Denton ordinance unusual is that it criminalized disclosure of such information—a violation of the ordinance was a Class C misdemeanor punishable by a fine not to exceed $500.

Nine years later, FOIFT wrote a letter to the city, claiming the 2006 ordinance impermissibly restricted the First Amendment rights of Denton’s elected officials. In December 2015, the Denton City Council repealed the criminal penalties.

The issue bubbled up again in an April 6, 2021 meeting of the Denton City Council, in which the council considered whether to record the audio of its closed sessions. The council decided against recording closed sessions, but Mayor Hudspeth proposed reinstating the criminal penalties: “If we’re talking about tightening things up, let’s go back to making it punitive to share what’s happening in closed session. That’s something I can get on board with.”

FOIFT has argued that it is unconstitutional for a city to impose criminal penalties for revealing information discussed in closed session, but no Texas court has considered the issue directly. And to be sure, municipal ordinances that include criminal penalties related to speech raise questions about First Amendment rights and preemption.

At the same time, there are many reasons a governmental body might want to prohibit officials from revealing information discussed during a closed session, and to avoid the consequences for doing so: the governmental body’s claim of attorney-client privilege may be waived if the official reveals attorney-client communications that occurred during a closed session.[1]  Two governmental bodies waived this privilege by meeting together for discussions intended to avoid litigation between them, each party consulting with its attorney in the presence of the other, “the party from whom it would normally conceal its intentions and strategy.” Tex. Att’y Gen. Op. No. MW-417 (1981).

Whether or not they are constitutional, criminal penalties may be unnecessary to accomplish the same goal—a Code of Ethics, for example, can prevent and/or discourage government officials from disclosing confidential information discussed in closed session.

Many Texas cities have incorporated confidentiality requirements into their Code of Ethics ordinances. Officials who violate a city’s code of ethics are generally subject to disciplinary action, including removal.

For example, the City of Dallas Code of Ethics prohibits a city official or employee from “intentionally or knowingly disclos[ing] any confidential government information gained by reason of the official’s or employee’s position.” Confidential government information is defined to include:

  1. all information held by the city that is not available to the public under the Texas Open Records Act;
  2. any information from a meeting closed to the public pursuant to the Texas Open Meetings Act;
  3. any information protected by attorney-client, attorney work product, or other applicable legal privilege; and
  4. any research, opinions, advice, recommendations, reasoning, or conclusions in a draft document concerning city business or city policy that has not yet been released to the public in accordance with established city procedures.

In 2017, the Dallas City Council amended the Code of Ethics by adding the following provision: “A city official or employee shall not knowingly disclose to a member of the public the certified agenda, the recording, or the discussion had within a meeting that was lawfully closed to the public, unless the disclosure is made with lawful authority.” A city council member that violates the Dallas Code of Ethics is subject to disciplinary action as “decided by the city council in accordance with the city charter.”

The City of Corpus Christi has similar confidentiality requirements in its Code of Ethics. The Corpus Christi ordinance is enforced by an ethics commission that has jurisdiction of complaints involving any “city official,” which includes the mayor and members of the city council. If the ethics commission determines that a city council member violated the code, the commission “may recommend to the full city council a reprimand, temporary suspension, removal or any other sanction or corrective action within the power of the city council, or recall by the citizens.” The city council has “discretion in determining what action, if any, to take.”

In some cases, violation of a municipal code of ethics may be the basis for a civil lawsuit for damages or injunctive relief. For example, under the City of Kyle Code of Ethics, the ethics commission may recommend (among other remedies) that the city file suit for damages or injunctive relief based on a violation of the city’s ethics laws.

Disclosure of confidential information discussed in a closed meeting may also be a breach of the official’s fiduciary duties. Regardless of whether specific ethics rules or ordinances have been adopted, government officials “must act in a manner that comports with their common law fiduciary-duty obligations.”[2]

[1] Zindia Thomas, Texas Open Meetings Act Laws Made Easy, Texas Municipal League (2017 edition).

[2] Vincent R. Johnson, The Fiduciary Obligations of Public Officials, 9 St. Mary’s J. Legal Mal. & Ethics 298 (2019).

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