Can a board member listen to the recording of a closed meeting they took part in?

Plain-English summary

When a Texas governmental body lawfully meets behind closed doors, it has to make a record of what happened, either a certified agenda or a tape recording. That record is meant to be locked down. The law says it stays secret and can be handed over only to the public, and only when a court orders it in a lawsuit. A community college trustee wanted to listen back to the tape of a closed meeting he had sat in on, and the question reached the Attorney General: does the secrecy rule stop a member of the body from reviewing the record of his own meeting?

The Attorney General said no. The catch is in the words the statute uses. It bars releasing the record "to the public." A member of the body who was in the room is not "the public," and letting him review the record does not break the confidentiality of the closed session. So neither the Open Meetings Act nor the companion Open Records Act stops a member from reviewing the certified agenda or tape of a closed meeting he attended.

That said, the Attorney General added a practical caution. The whole reason this record exists is to serve as evidence if someone later sues claiming the body broke the open meetings law, and the body has to keep it for at least two years (tampering with it is a crime). Because the record is evidence the body is duty-bound to protect, the body itself gets to decide whether to let a member review it and how that review will work. And if a body sets up such a procedure, it should do so in an open meeting rather than in secret.

Currency note

This opinion was issued in 1993. 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. The Open Meetings Act (then V.T.C.S. article 6252-17) and the Open Records Act (then V.T.C.S. article 6252-17a) have since been recodified into the Government Code, so the article and section numbers have changed; confirm current law before relying on anything described here.

Background and statutory framework

The Open Meetings Act required every covered governmental body to open its regular, special, or called meetings to the public except as permitted by the constitution or the act itself (V.T.C.S. art. 6252-17, § 2(a)). Section 2 allowed the body to close portions of a meeting to discuss certain subjects (for example, § 2(f), (g), (h), (j), (m)). When it met in closed session, section 2A required the body to keep a certified agenda or a tape recording of the proceedings (§ 2A(a), (d)).

Section 2A(c) permitted release of a certified agenda only on a court order in an action brought under the act, and section 2A(h) made it unlawful for any person to knowingly release a certified agenda or tape recording to the public except in compliance with a court order. The Attorney General had previously treated "certified agenda" and "tape recording" as interchangeable under section 2A (Attorney General Opinion JM-1071 (1989); Open Records Decision No. 495 (1988)), and had read sections 2A(c) and (h) to govern release "to the public" (Attorney General Opinion JM-995 (1988)).

The record's purpose is evidentiary: it documents the closed session in case someone later alleges the body violated the act (§ 2A(e), (h)). The body must preserve it for at least two years (§ 2A(f)), and Penal Code section 37.10 prescribes penalties for tampering with a government record. The opinion also noted, citing Webster v. Texas & Pacific Motor Transport Co., that a governmental body must act as a body at a properly called meeting of which all members have notice.

Under the Open Records Act, section 3(a)(1) normally required a body to withhold a closed-meeting record from required public disclosure (Open Records Decision No. 495 (1988)), but that act contained nothing barring a body's own members from internally reviewing nonpublic information (Open Records Decision No. 468 (1987)).

Citations

• V.T.C.S. art. 6252-17 (Open Meetings Act), § 2(a) (open-meeting requirement); § 2A(a) (certified agenda or tape recording of closed meeting); § 2A(c) (release of certified agenda only by court order); § 2A(e), (h) (evidentiary purpose; prohibition on release to the public); § 2A(f) (two-year preservation)
• V.T.C.S. art. 6252-17a (Open Records Act), § 3(a)(1) (withholding closed-meeting record from public disclosure)
• Penal Code § 37.10 (tampering with a government record)
• Webster v. Texas & Pacific Motor Transport Co., 166 S.W.2d 75, 76-77 (Tex. 1942) (a governmental body acts as a body at a properly called meeting with notice to all members)
• Attorney General Opinions JM-1071 (1989), JM-995 (1988); Open Records Decision Nos. 495 (1988) and 468 (1987)

Common questions

Can a member of a board review the recording of a closed meeting they attended?
Yes. The Attorney General concluded that neither the Open Meetings Act nor the Open Records Act bars a member of a governmental body from reviewing the certified agenda or tape recording of a closed meeting in which the member participated.

Doesn't the law keep closed-meeting records secret?
It keeps them from the public. The opinion read the statute's release restrictions to apply only to release "to the public," and concluded that a participating member's review is not such a release and does not compromise the confidentiality of a properly convened closed meeting.

Must the body let a member review the record?
Not automatically. Because the record exists as evidence the body is required to preserve for at least two years, the opinion concluded each body may decide for itself whether and how to allow a member to review it. If a body adopts such a procedure, it should do so in an open meeting.

Why does the record have to be kept at all?
Its purpose is to serve as evidence if someone later alleges the body violated the Open Meetings Act. The body must preserve the certified agenda or tape recording for at least two years, and tampering with it can be prosecuted under Penal Code section 37.10.

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0227
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1993/dm0227.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

June 15, 1993

Mr. Kenneth H. Ashworth
Commissioner
Texas Higher Education Coordinating Board
P.O. Box 12788
Austin, Texas 78711

Opinion No. DM-227

Re: Whether a member of a governmental body subject to the Open Meetings Act, V.T.C.S. article 6252-17, may review the tape of a closed meeting in which the member participated (RQ-202)

Dear Commissioner Ashworth:

You ask our opinion as to whether a member of a governmental body subject to the Open Meetings Act (the "act"), V.T.C.S. article 6252-17, may review the tape recording of a closed meeting in which the individual participated. You state that the individual in this case is a community college trustee. We conclude that the act does not prohibit such an individual from reviewing the tape recording.

Under the act, every governmental body subject to the act must open all of its regular, special or called meetings to the public, except as permitted in the constitution or in the act itself. V.T.C.S. art. 6252-17, § 2(a). Section 2 of the act permits a governmental body subject to the act to exclude the public from portions of a meeting at which the members of the body discuss certain subjects. See, e.g., id. § 2(f), (g), (h), (j), (m). With one exception not relevant here, section 2A of the act requires a governmental body, when it meets in a closed meeting, to keep a certified agenda or tape recording of the proceedings. Id. § 2A(a), (d).

Section 2A(c) expressly permits a governmental body to release to the public a certified agenda only upon court order in an action brought under the act. Previously, the attorney general has concluded that section 2A of the act uses "certified agenda" and "tape recording" interchangeably. See Attorney General Opinion JM-1071 (1989) at 2; Open Records Decision No. 495 (1988) at 3 n.1. Thus, although section 2A(c) of the act discusses the release of a certified agenda, the same provision applies to the release of a tape recording of a closed meeting. Section 2A(h) prohibits any person from knowingly releasing to the public a certified agenda or tape recording except in compliance with a court order.

Section 2A(c) and (h) of the Open Meetings Act refers to release of a certified agenda or tape recording of a closed meeting only in terms of release to the public. See Attorney General Opinion JM-995 (1988) at 6. In our opinion, a member of a governmental body who participated in a closed meeting may review the certified agenda or tape recording of a closed meeting without such review constituting a release to the public. Furthermore, such review of the certified agenda or tape recording of a closed meeting would not, by itself, compromise the confidentiality of a properly convened closed meeting. Thus, we do not believe that the act precludes a member of a governmental body from reviewing the certified agenda or tape recording of a closed meeting in which the member had participated.

We note, however, that, in the context of the act, the purpose of a certified agenda or tape recording of a closed meeting is to provide evidence in the event of litigation in which a person alleges that the governmental body violated the act. See V.T.C.S. art. 6252-17, § 2A(e), (h). The governmental body is obligated to preserve the certified agenda or tape recording for at least two years after the date of the closed meeting. See id. § 2A(f); see also Penal Code § 37.10 (prescribing penalties for tampering with government record). Given the purpose of the certified agenda or tape recording, and given the governmental body's statutory duty to preserve the certified agenda or tape recording as evidence in the event of litigation, we believe that each governmental body is authorized to decide for itself whether to permit a member who has participated in a closed meeting to review the certified agenda or tape recording of that meeting as well as the procedure for allowing such a review. Should a governmental body choose to adopt such a procedure, it should do so in an open meeting.[1] See V.T.C.S. art. 6252-17, § 2 (listing circumstances in which governmental body may conduct closed meeting).

In addition, the Open Records Act, V.T.C.S. article 6252-17a, does not prohibit a member of a governmental body from reviewing a certified agenda or tape recording of a closed meeting in which the member participated. Although section 3(a)(1) of the Open Records Act normally requires that a governmental body withhold from required public disclosure a certified agenda or tape recording of a closed meeting (see Open Records Decision No. 495 (1988) at 3), the Open Records Act has no provision that would preclude members of a governmental body from internally reviewing nonpublic information. See Open Records Decision No. 468 (1987) at 3-4.

SUMMARY

Neither the Open Meetings Act, V.T.C.S. article 6252-17, nor the Open Records Act, V.T.C.S. article 6252-17a, precludes a governmental body from releasing to a member of the governmental body the certified agenda or tape recording of a closed meeting in which the member participated. A governmental body may implement a procedure for providing access to the certified agenda by a member of the governmental body, and should do so in an open meeting.

DAN MORALES
Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Deputy Attorney General for Litigation

RENEA HICKS
State Solicitor

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Kymberly K. Oltrogge
Assistant Attorney General

[1] A governmental body must act as a body at a properly called meeting of which all members have notice. Webster v. Texas & Pacific Motor Transport Co., 166 S.W.2d 75, 76-77 (Tex. 1942).