Can a city audit committee meet in closed session to protect sensitive information?

Plain-English summary

Representative Justin Boyd asked whether a city, town, or municipality could let its audit committee meet in closed session, citing privacy or sensitivity concerns about the underlying review or investigation. The AG read the question as describing a committee made up of members of the city's governing body (the city council or board of directors). On that reading, the answer was no.

The Arkansas FOIA at § 25-19-106(a) requires meetings of "governing bodies" of cities, counties, townships, school districts, and various other public bodies to be public. The statute lists only four executive-session exceptions: certain personnel matters, preparation and administration of state licensing examinations, security of public water systems and municipally owned utility systems, and meetings of the General Assembly's Child Maltreatment Investigations Oversight Committee. The list is exclusive; there is no general "sensitivity" or "privacy" carve-out.

The AG also confirmed that this analysis does not change if the audit committee includes some non-council members. Under Op. Att'y Gen. 2014-124 (which the prior AG attached as an enclosure), a "partial subgroup" with non-council members still falls under the same open-meeting rule because it includes more than one member of the parent governing body. So adding outside accountants or auditors to the committee does not unlock executive sessions.

Currency note

This opinion was issued in 2018. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

How the FOIA's exclusive list of executive-session exceptions works

Section 25-19-106 starts from a general open-meetings rule: "all meetings, formal or informal, special or regular, of the governing bodies of all municipalities, counties, townships, and school districts and all boards, bureaus, commissions, or organizations of the State of Arkansas, except grand juries, supported wholly or in part by public funds or expending public funds, shall be public meetings." The statute then permits executive sessions only for four enumerated categories under § 25-19-106(c)(1), (5), (6), and (7):

1. Consideration of certain personnel matters (employment, appointment, promotion, demotion, disciplinary action, or resignation of any public officer or employee).
2. Preparation and administration of state licensing examinations.
3. Discussion of the security of public water systems and municipally owned utility systems.
4. Meetings of the General Assembly's Child Maltreatment Investigations Oversight Committee.

Section 25-19-106(a) also incorporates other statutes that specifically provide for closed meetings, but as Watkins, Peltz-Steele & Steinbuch note, "few statutes fall into that category." Privacy and sensitivity are not among them. Op. Att'y Gen. 2006-194 stated the principle directly: "[t]he sensitivity of the matters discussed is irrelevant." Even genuinely sensitive material, like the details of an investigation, must be discussed in public when the body is a governing body.

How "governing body" gets defined for committees

The 2014-124 framework that the AG referenced sorts committees into three types:

• Type 1, complete subgroup. Composed entirely of members from the parent governing body. Records and meetings are both subject to the FOIA. Public meetings required.
• Type 2, partial subgroup. More than one member of the parent body plus outside members. Records always covered. Meetings depend on whether the subgroup has decision-making authority (delegated or de facto).
• Type 3, outside group. No members of the parent body. Records covered if the group was created by the parent. Meetings depend on decision-making authority.

A "decision-making" subgroup is a "governing body" and must meet publicly. A subgroup that exists only to make recommendations is "advisory." Advisory bodies' records are still public, but their meetings are not. The 2014-124 opinion noted one wrinkle for Type 2: if the committee includes a "significant number" of parent-body members, it can be treated as effectively a meeting of the parent body and required to be public regardless of decision-making authority.

The AG concluded that a city audit committee composed of council members will be a governing body, whether complete or partial, and therefore subject to the open-meetings rule. The only way to legitimately close any portion of an audit committee meeting is to fit it into one of the four enumerated executive-session exceptions, which usually means a personnel discussion (employee misconduct under audit, for example).

Common questions

Can a city audit committee close part of a meeting to discuss possible employee misconduct that came up in the audit?
Yes, but only the personnel-related portion. Section 25-19-106(c)(1) permits an executive session for "consideration of employment, appointment, promotion, demotion, disciplinary action, or resignation of any public officer or employee." Any portion of the meeting that is not about that specific personnel matter has to stay open.

Can the committee close a meeting to receive privileged advice from the city attorney?
The opinion does not address attorney-client communications. Some Arkansas case law and AG opinions distinguish between attorney-client communications (where a closed conversation may be permissible in some narrow contexts) and meeting deliberation (which has to be open). This opinion does not provide that exception; it lists only the four enumerated grounds.

What if the audit committee is just two council members and an outside auditor?
Still a governing body under FOIA. The Pickens analysis (and 2014-124) treats partial subgroups with parent-body members the same as complete subgroups for open-meeting purposes when the committee's deliberations functionally substitute for the parent body's.

What if the committee just makes recommendations and the council votes?
That argument might pull the committee into the "advisory body" category, which is not subject to the open-meeting rule. But the AG was clear in this opinion that an audit committee made up of city council members will normally be a governing body, regardless of its formal recommendation-only label, because of the de facto decision-making power.

What is the consequence of holding a closed meeting that should have been public?
Under Op. Att'y Gen. 2017-108 (companion opinion), the action taken at the closed meeting can be invalidated, but only after the body has an opportunity to cure by re-discussing the matter publicly. In addition, criminal liability under § 25-19-104 can attach (Class C misdemeanor for negligent FOIA violations), and elected officials face possible nonfeasance proceedings under § 14-42-109 for willful violations.

Background and statutory framework

Arkansas's FOIA at § 25-19-101 et seq. is generally pro-disclosure. The legislature has resisted broadening the executive-session list over decades. The four enumerated categories at § 25-19-106(c) reflect deliberate scope-narrowing: the statute does not permit closed sessions for budget deliberations, real estate negotiations, litigation strategy, or general "sensitive" topics. The Pickens decision in 1975 established that committees made up of members of a governing body must meet in public even when they only have power to recommend. Watkins, Peltz-Steele & Steinbuch's treatise (Arkansas Law Press, 6th ed. 2017) treats this as settled doctrine.

Citations

• Ark. Code Ann. § 25-19-106(a) (open-meeting requirement)
• Ark. Code Ann. § 25-19-106(c)(1), (5), (6), (7) (executive-session exceptions)
• Arkansas Gazette Co. v. Pickens, 258 Ark. 69, 522 S.W.2d 350 (1975) (subgroups must meet publicly)
• Op. Att'y Gen. 2014-124 (subgroup typology)
• Op. Att'y Gen. 2006-194 (sensitivity is irrelevant)
• John J. Watkins, Richard J. Peltz-Steele & Robert Steinbuch, The Arkansas Freedom of Information Act (Arkansas Law Press, 6th ed., 2017) (treatise)

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

Opinion No. 2017-118
January 3, 2018
The Honorable Justin Boyd
State Representative
1509 South 3 7th St.
Fort Smith, AR 72903-2946
Dear Representative Boyd:
STATE OF ARKANSAS
ATTORN EY GENERAL
LESLIE RUTLEDGE
This is in response to your request for an opinion on the following question:
Under current Arkansas law, is it permissible for an audit committee
of a city, town, or municipality to hold an executive session or
meeting that is closed to the general public due to privacy or
sensitivity concerns lest any public release of said information could
severely or harmfully affect the underlying review/investigation?
RESPONSE
I take it from your question that this "audit committee" is composed of members
of a city's governing body. In this light, the answer to your question is "no," in
my opinion. It is not permissible for an audit committee so comprised to hold an
executive session (that is, a meeting that is closed to the public) because of
generalized privacy or sensitivity concerns. The Freedom of Information Act
("FOIA") provides limited grounds for holding an executive session, and privacy
or sensitivity concerns are not among those grounds.
DISCUSSION
In Op. Att'y Gen. 2014-124, which I have attached for your convenience, my
predecessor in this office analyzed the FOIA in detail as it relates to meetings held
by governing bodies of entities subject to the FOIA. Given that the law remains
the same in all material respects, it is unnecessary to repeat the entirety of that
analysis.
323 CENTER STREET. SUITE 200 · LITTLE ROCK. ARKANSAS 72201
TELEPHONE (50 1) 682-2007 ·FAX (501) 682-8084
ARKANSASAG.GOV The Honorable Justin Boyd
State Representative
Opinion No. 2017-118
Page 2
Because your question, as you have posed it, appears to implicate the open-
meetings portion of the FOIA, I take it that this "audit committee" is composed of
members of a city council or board of directors, and would, therefore, be a
governing body for purposes of the FOIA. 1 Ark. Code Ann. § 25-19-106 (Repl.
2017) contains the FOIA's requirements for open meetings with respect to
governing bodies:
Except as otherwise specifically provided by law, all meetings,
formal or informal, special or regular, of the governing bodies of all
municipalities, counties, townships, and school districts and all
boards, bureaus, commissions, or organizations of the State of
Arkansas, except grand juries, supported wholly or in part by public
funds or expending public funds, shall be public meetings.2
However, the Act permits "executive sessions"-meetings closed to the public-
based on four limited categories of exemptions: consideration of certain personnel
matters, preparation and administration of state licensing examinations, discussion
of the security of public water systems and municipally owned utility systems, or
meetings of the General Assembly's Child Maltreatment Investigations Oversight
Committee. 3 It thus follows, in my opinion, that general sensitivity or privacy
concerns do not justify executive sessions.4 Only the above-referenced statutory
grounds would justify executive sessions.
1 The inclusion of members of the city council or city board of directors warrants the
determination, in my opinion, that the audit committee is a governing body under the FOIA. See
generally Arkansas Gazette Co. v. Pickens, 258 Ark. 69, 522 S.W.2d 350 (1975). This outcome
does not change even if some members from outside the city council are members of the audit
committee. In such a case, the audit committee would still be a "partial subgroup" for purposes
of the FOIA, and its meetings would fall under the same open meeting requirement, subject to the
same narrowly-tailored exemptions. See Op. Att'y Gen. 2014-124.
2 Ark. Code Ann.§ 25-19-106(a).
3 Id. at§ 25-19-106(c)(I), (5), (6) and (7). See also John J. Watkins, Richard J. Peltz-Steele, &
Robe1t Steinbuch, THE ARKANSAS FREEDOM OF INFORMATION ACT 346-47 (Arkansas Law
Press, 6th ed., 2017). Section 25-19-106(a) likewise "includes a provision incorporating other
statutes that specifically provide for closed meetings, but few statutes fall into that category."
Watkins, et al. at 347.
4 Op. Att'y Gen. 2006-194 ("The sensitivity of the matters discussed is irrelevant, in my
opinion."). See also Watkins, et al. at 347 (stating that "a city council, state board, or other entity
may find itself discussing potentially sensitive matters in an open session."). The Honorable Justin Boyd
State Representative
Opinion No. 2017-118
Page 3
Because an "audit committee" as contemplated and considered in this opinion is a
governing body for purposes of the FOIA, its meetings must be open to the public
absent an exemption under the FOIA justifying an executive session. And because
the grounds on which executive sessions may be held are so limited, it is my
opinion that it is impermissible for the audit committee to hold an executive
session based on generalized privacy or sensitivity concerns.
Sincerely,
~ /A--
LESLIE RUTLED~E 0
Attorney General
Enclosure Opinion No. 2014-124
November 19, 2014
STATE OF ARKANSAS
THE ATTORNEY GENERAL
DusnN McDANIEL
The Honorable Linda P. Chesterfield
State Senator

12 Keo Drive

Little Rock, Arkansas 72206
Dear Senator Chesterfield:
You have asked for my opinion regarding the following two questions on the
Freedom of Information Act (FOJA):

1. Under Arkansas law, when the state board of a state agency appoints
   (or nominates) a committee/subcommittee to serve in any capacity,
   is the committee/subcommittee and any actions taken by it or its
   members subject to the FOIA?
2. Under Arkansas law, when the state board of a state agency appoints
   (or nominates) a committee/subcommittee to serve in any capacity,
   arc the committee/subcommittee meetings open to the public?
   RESPONSE
   I must start by clarifying your first question. The FOIA applies to all government
   organizations, including groups created by or from such organizations. Strictly
   speaking, therefore, a committee or subcommittee of a state agency is "subject to
   the FOIA." Your first question seems to be asking whether such a group's records
   qualify as ''public records" under the FOJA. And your second question is whether
   such a group's meetings qualify as "public meetings" under the FOJA.1
   1 Because you do not ask, I will not address any potential records exemptions or meetings
   provisions that might allow the meetings to be held in closed session (i.e. an "executive session").
   323 CENTER STREET, SUITE 200 • L!ITLE ROCK, ARKANSAS 7220 I
   TELEPHONE (501) 682-2007 •FAX (501) 682-8084
   INTERNET WEBSITE. http://www.ag.state.ar.us/ The Honorable Linda P. Chesterfield
   State Senator
   Opinion No. 2014-124
   Page 2
   There are three general types of groups created by or from a public organization.
   Depending on the facts, the FOIA applies differently to each type:
   • Type I-complete subgroup. This type of group is composed entirely of
   members from the parent, governing body. The records and meetings of a
   complete subgroup are both subject to the FOIA.2 So, if you are asking
   about a complete subgroup, then the answer to both your questions is "yes."
   • Type 2-partial subgroup. This type of group is composed of more than
   one member of the parent body together with members from outside the
   governing body. The records of a partial subgroup arc subject to the FOIA.3
   Whether a partial subgroup's meetings are subject to the FOJA. ordinarily
   depends on the nature of the group's decision-making authority, which is
   explained more fully below. So, if you arc asking about a partial subgroup,
   then the answer to your first question is "yes," and the answer to your
   second question depends on the analysis below.
   • Type 3-outsiclc group. This type of group has no members of the parent
   body and is composed entirely of members who arc selected from outside
   the parent body. The records of an outside group that was created by the
   parent, governmental body are subject to the FOIA..4 Whether a partial
   subgroup's meetings are subject to the FOIA depends on the nature of the
   ' This is because the Type I group, which essentially is the parent body on a smaller scale, is
   itself a governmental body. See generally Arkansas Gazette Co. v. Pickens, 258 Ark. 69, 522
   S.W.2d 350 (1975); John J. Watkins & Richard J. Peltz, THE ARKANSAS FREEDOM Of
   INFORMATION ACT 77-79, 84 (Arkansas Law Press, 5th ed., 2009) ("ln ... Pickens, the Court held
   that committees made up of members of a governing body must meet in public, even if they
   possess only the power to make recommendations."); Op. Att'y Gen. Nos. 2003-170 ("The
   meetings of a subcommittee made up wholly of members of the governing body must be held in
   public."), 98-169 ("If the parent body is subject to the FOIA's open meeting requirements, the
   same requirement attaches to meetings of subgroups of the governing body.").
   ·1 This is because the Type 2 group, like most groups created by or from public governing bodies,
   is supported in whole or part by public funds and is inte1twined with public business. E.g.
   Watkins & Peltz, supra note 2, at 82 ("Because advisory bodies established by government
   agencies generally receive direct public funding for their activities and are involved in matters of
   public concern, their records arc subject to the act."). The Honorable Linda P. Chesterfield
   State Senator
   Opinion No. 2014-124
   Page 3
   group's decision-making authority, which is explained more fully below.
   So, if you are asking about an outside group, the answer to your first
   question is "yes," and the answer to your second question depends on the
   analysis below.
   The only remaining question is whether the meetings of a partial subgroup and an
   outside group (respectively) are considered "public meetings" under the FOIA.
   Partial subgroups and outside groups can be classified as either "governing
   bodies" or "advisory bodies." The FOIA's open-meetings provisions only apply to
   "governing bodies": "[A]ll meetings, formal or informal, special or regular, of the
   governing bodies of all. .. organizations of the State of Arkansas ... shall be public
   meetings."5 Neither the FOlA nor Arkansas's appellate courts have addressed
   what it means to be a "governing body." Nevertheless, this office (and the leading
   commentators on the FOIA) have consistently opined that a governing body is one
   with decision-making authority.6
   Type 2 and Type 3 groups can have decision-making authority that is either
   delegated or de facto. An example of the former would be where a search
   committee was delegated the authority to whittle the entire pool of candidates for a
   position down to a shorter list and submit the short list to the parent body for its
   decision from among the remaining candidates.7 An example of the latter would
   be where, though no formal decision-making authority was delegated to a Type 2
   5 A.C.A. § 25-16-106(a) (emphasis added); Op. Att'y Gen. 2006-059.
   6 See Op. Att'y Gen. No. 2006-059; Watkins & Peltz, supra note 2, at 74-85.
   7 Op. Att'y Gen. No. 94-339; Baxter County Newspapers, Inc. v. Medical StC!ff of Baxter General
   J!osp., 273 Ark. 511, 622 S.W.2d 495 (1981) (holding that a committee composed of members
   entirely outside the parent, governing body must hold open meetings because the committee had
   been delegated the authority to determine whether doctors could practice at the hospital); Watkins
   & Peltz, supra, at 84, n 175 (Note: in this footnote the professors treat a search committee as a "de
   facto" governing body "if it has the power to screen candidates from review by the purported
   final decision-maker." If the committee has such "power," then it must have been delegated by
   the parent body. Accordingly, it is probably more accurate to consider such a committee as
   having delegated authority, not de facto authority. Of course, a similar committee could lack such
   a delegated power in law (de j ure ), but have it in fact (de facto) i r the parent body automatically
   accepted the group's short list). The Honorable Linda P. Chesterfield
   State Senator
   Opinion No. 2014-124
   Page 4
   or 3 group upon its creation, the group's recommendations arc "rubber-stamped"
   by the parent entity. 8
   If a Type 2 or 3 group lacks decision-making authority (whether delegated or de
   facto) then it is considered an "advisory body," which means that it exists only to
   make recommendations, collect information, or give advice. The upshot of a group
   being classified as an "advisory body" is that, though its records are subject to the
   FOIA, its meetings ar.e not.9 Two leading commentators on the FOIA note that,
   though this result is "seemingly contradictory," it is required by the language of
   the FOIA:
   Insofar as records arc concerned, the Arkansas courts need not draw
   a line between a governing body and one that is merely advisory, for
   the FOIA applies to the records of any entity "wholly or partially
   supported by public funds or expending public funds." Because
   advisory bodies established by government agencies [which are the
   only type under consideration in this opinion] generally receive
   direct public funding for their activities and are involved in matters
   of public concern, their records are subject to the act .... A different
   result is required with respect to the meetings of advisory
   committees, because the POIA's open meeting provisions apply only
   to "governing bodics."10
   In summary, if you are asking about a complete subgroup, then the answer to your
   two questions is "yes." If you arc asking about either a partial subgroup or an
   outside group, then the answer to your first question (i.e., whether the records are
   ···------------····--·--·-··--···-·--- ~--
   8 See, e.g., Op. Att'y Gen. No. 2003-170, 98-169, 92-241; Watkins & Peltz, supra note 2, at 83-
3. This is, clearly, a highly factual inquiry. Y ct it is important to note that such an inquiry looks
   to the manner in which the parent group reviews (or fails to review) the recommendations, not the
   mere fact that the parent group reaches the same conclusion as the Type 2 or 3 group.
   9 There is one potential exception to this rule when it comes to Type 2 groups. This office has
   occasionally opined that if the Type 2 group is composed of a "significant number" of members
   of the parent body, then the group would have to hold open meetings. But this is not because the
   group was a numerically distinct governing body-advisory bodies simply are not "governing
   bodies." Rather, th<:! basis for this conclusion is that the group's meetings would essentially be a
   meeting of the parent body. Tho.ugh such a scenario is probably rare, it is possible. And this ofiice
   has noted it. See Op. Att'y Gen. Nos. 2000-260, 2003-170, 2006-194.
   10 Watkins & Peltz, supra note 2, at 81--82 (internal citations omitted). The Honorable Linda P. Chesterfield
   State Senator
   Opinion No. 2014-124
   Page 5
   covered) is "yes"; and, with the possible exception mentioned in note nine, the
   answer to your second question (i.e., whether the meetings are covered) depends
   on the nature of the group's decision-making authority.
   Assistant Attorney General Ryan Owsley prepared this opinion, which I hereby
   approve.
   DM/RO:cyh