Let the Sun Shine In - Iowa League of Cities


Let the Sun Shine In - Iowa League of Cities

OVERVIEWOpen Meetings Law EnforcementOpen Records Law – DefinitionsConfidential RecordsOpen Records Law EnforcementRecent Legislative Amendments (SF 430)4

OPEN MEETINGS LAWSection 21.3, Meetings of Governmental Bodies.Meetings of governmental bodies shall be . . .held in open session unless a closed session isexpressly permitted by law.Section 21.2, Definitions.As used in this chapter:3. “Open session" means a meeting to which allmembers of the public have access.5

OPEN MEETINGS LAWPUBLIC NOTICE AND MINUTESSection 21.3, Meetings of Governmental Bodies.Meetings of governmental bodies shall bepreceded by public notice (including date, timeand place of meeting and tentative agenda)2011 Legislative Amendment:Section 21.4 now requires notice of areconvened meeting unless reconvened withinfour hours, time and place announced at theinitial meeting, and no change to the agenda8

OPEN MEETINGS LAWPUBLIC NOTICE AND MINUTESSection 21.3, Meetings of GovernmentalBodies.Each governmental body shall keepminutes of its meetings showing the date,time and place, members present, andaction taken. The minutes shall be publicrecords open to public inspection.9

OPEN MEETINGS LAWREQUIREMENTS FOR CLOSED SESSIONSection 21.5, Closed Session.1. A governmental body may hold a closedsession only by affirmative public vote of eithertwo-thirds of the members of the body or all ofthe members present at the meeting.10

OPEN MEETINGS LAWREQUIREMENTS FOR CLOSED SESSIONSection 21.5, Closed Session.2. The vote of each member on thequestion of holding the closed sessionand the reason for holding the closedsession by reference to a specificexemption must be announced publiclyat the open session and entered in theminutes.11

OPEN MEETINGS LAWCLOSED SESSION EXEMPTIONSSection 21.5, Closed Session Exemptions(c) To discuss litigation strategy with counsel(i) To evaluate the professional competency ofan individual whose appointment, hiring,performance or discharge is being consideredwhen necessary to prevent needless andirreparable injury to that individual'sreputation and that individual requests aclosed session12

OPEN MEETINGS LAWCLOSED SESSION EXEMPTIONSSection 21.5, Closed Session Exemptions2011 Legislative Amendment:(j) To discuss the purchase or sale of particularreal estate only where premature disclosurecould be reasonably expected to increase theprice the governmental body would have topay for that property or reduce the price thegovernmental body would receive for thatproperty.13

OPEN MEETINGS LAWPROCESS FOR HOLDING A CLOSED SESSION• Put it on your council agenda• Include the specific closed session exemption byreference to the Iowa Code Section• Not required to include the case name, if it islitigation• Ask your city attorney whether it is lawful togo into closed session for that purpose• Council meeting minutes must include theattorney’s oral opinion that it is lawful14

OPEN MEETINGS LAWPROCESS FOR HOLDING A CLOSED SESSION• Each member’s vote on the question ofholding the closed session must be announcedpublicly at the open session and entered in theminutes• Keep detailed minutes and an audio recording• Only discuss relevant matters• Don’t take final action during closed session• Don’t talk about the closed session publicly15

OPEN MEETINGS LAWFORMAL MEETINGS BY ELECTRONIC MEANSSection 21.8, Electronic Meetings.1. When a meeting in person is impossible or impractical, agovernment body may conduct a meeting by electronic meansif –• Notice of the time, date, place and agenda of the meeting isgiven.• The governmental body provides public access to theconversation of the meeting;• The place of the meeting is the place from which thecommunication originates or where public access is providedto the conversation;• Minutes are kept of the meeting.16

OPEN MEETINGS LAWWALKING QUORUMS – SERIAL MEETINGSINFORMAL MEETINGS BY ELECTRONIC MEANSSection 21.2, Definitions.2. "Meeting" means a gathering in person orby electronic means, formal or informal, of amajority of the members of a governmentalbody where there is deliberation or actionupon any matter within the scope of thegovernmental body's policy-making duties.17

OPEN MEETINGS LAWWALKING QUORUMS – SERIAL MEETINGSINFORMAL MEETINGS BY ELECTRONIC MEANSWalking quorums and serial meetings havebeen determined to be an open meetings lawviolation in some states.An informal gathering (“meeting”) byelectronic means can occur, either bytelephone or by email, if a majority of thecouncil engage in collective deliberation on amatter within the scope of the council's policymakingduties.18

OPEN MEETINGS LAWENFORCEMENTSection 21.6, Enforcement1. Any aggrieved person, taxpayer to, or citizenof, the state of Iowa, or the attorney general orcounty attorney, may seek judicial enforcementof the requirements of this chapter.19

Section 21.6, EnforcementOPEN MEETINGS LAWENFORCEMENT3. Upon finding a violation, a court:Shall assess each member of the body, whoparticipated in the violation, damages of not morethan five hundred dollars nor less than one hundreddollars.2011 Legislative Amendment:Shall assess each member of the body who knowinglyparticipated in the violation damages of not morethan two thousand dollars nor less than onethousand dollars.. 20

OPEN MEETINGS LAWENFORCEMENTA member is not to be assessed damages if the member:• Voted against the closed session• Believed facts indicating compliance with the law• Reasonably relied on a court decision, attorneygeneral’s opinion or opinion of the governmentalbody’s attorney• The governmental body attorney’s opinion must bein writing, or if oral must be included in meetingminutes21

OPEN MEETINGS LAWENFORCEMENTSection 21.6, EnforcementUpon finding a governmental body has violated thischapter, a court:• Shall order payment of costs and attorney fees by theviolating members who were ordered to paydamages, or by the governmental body• Shall void the action taken, if the suit is broughtwithin six months and the court makes certainfindings• Shall order a member removed from office if it is asecond violation during that member’s term of office22

OPEN RECORDS LAWSection 22.2. Right to Examine PublicRecords - Exceptions.1. Every person shall have the right toexamine and copy a public record and topublish or otherwise disseminate a publicrecord or the information contained in apublic record.23

OPEN RECORDS LAWDEFINITIONSSection 22.1. Definitions.3. …., "public records" includes all records,documents, tape, or other information,stored or preserved in any medium, of orbelonging to this state or any county,city,…, or any branch, department, board,bureau, commission, council, orcommittee of any of the foregoing.24

OPEN RECORDS LAWCONFIDENTIAL RECORDSSection 22.7. Confidential records.The following public records shall be keptconfidential, unless otherwise ordered bya court, (or) by the lawful custodian ofthe records… :4. Records which represent andconstitute the work product of anattorney, which are related to litigationor claim made by or against a publicbody.25

OPEN RECORDS LAWCONFIDENTIAL RECORDSSection 22.7. Confidential records.(cont’d)5. Peace officers' investigative reports,….However, the date, time, specific location,and immediate facts and circumstancessurrounding a crime or incident shall not bekept confidential…, except…where disclosurewould plainly and seriously jeopardize aninvestigation or pose a clear and presentdanger to the safety of an individual.26

OPEN RECORDS LAWCONFIDENTIAL RECORDSSection 22.7. Confidential records.(cont’d)7. Appraisals . . . concerning the sale orpurchase of real or personal propertyfor public purposes, prior to executionof a contract for such sale orsubmission of the appraisal to the . . .owner or interest holders . . .27

OPEN RECORDS LAWCONFIDENTIAL RECORDSSection 22.7. Confidential records.(cont’d)11. Personal information in confidentialpersonnel records of public bodies….except for the following:• Name and compensation including anywritten agreement• Date the individual was employed by thegovernment body28

OPEN RECORDS LAWCONFIDENTIAL RECORDSSection 22.7(11)(cont’d)• Positions the individual holds or has held• Educational institutions attended by theindividual, including diplomas and degrees• Names of previous employers, positions held,and dates of employment• Any final disciplinary action taken resulting indischarge29

OPEN RECORDS LAWCONFIDENTIAL RECORDSSection 22.7. Confidential records.(cont’d)18. Communications…made to agovernment body…by identifiedpersons outside of government, to theextent that the governmentbody…could reasonably believe thatthose persons would be discouragedfrom making them…if they wereavailable for general publicexamination.30

OPEN RECORDS LAWENFORCEMENTSection 22.10. Civil enforcement.(synopsis)The Open Records Law provides essentially thesame enforcement remedies as are available forviolation of the Open Meetings Law, including:- assessment of damages;- assessment of costs and attorneys fees; and- removal from office.31

SENATE FILE 430• Adds confidential record protection fortentative, preliminary, draft or researchmaterials prior to completion• These draft materials are generally not subjectto open records laws• Creates the Iowa Public Information Board32

IOWA PUBLIC INFORMATION BOARD• The 9 member board is comprised of: no morethan 3 members of the media, no more than 3members that represent cities, counties, orother political subdivisions• Purpose of the board is to provide analternative means to secure compliance withopen meetings and open records law• Aggrieved persons, including any taxpayer orcitizen of Iowa, the attorney general or anycounty attorney may seek enforcement33

IOWA PUBLIC INFORMATION BOARD• Board does not have jurisdiction over thejudicial or legislative branches of stategovernment or the governor’s office• Reliance on an opinion of the Iowa PublicInformation Board can be used as a defense inopen meetings violation case or public recordsviolation case• Board can issue declaratory orders with theforce of law subpoenas and institute civil fines34

IOWA PUBLIC INFORMATION BOARD• Can issue subpoenas for the purpose ofinvestigating complaints• Can issue orders with the force of lawdetermining if there has been a violation ofChapter 21 or Chapter 22• Impose civil penalties and other appropriateremedies calculated to declare, terminate orremediate any violation of those chapters.35

IOWA PUBLIC INFORMATION BOARD• Make training opportunities available forpersons who have responsibilities in relationto Chapter 21 or Chapter 22• Make recommendations to the governor andgeneral assembly36

QUESTIONS???Thank you to the Iowa League of Cities and toTerry Timmons and Bruce Bergman for theirassistance with this presentation.37

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