Can a Texas official who attended a closed government meeting talk publicly about what was discussed there?

Texas AG Opinion JM-1071: Can You Talk About a Closed Government Meeting?

Plain-English summary

A Texas state senator asked the Attorney General to settle a dispute over one line in the Open Meetings Act. In 1987 the legislature added section 2A, which requires a governmental body to keep a record of its closed sessions, either a written "certified agenda" or a tape recording. Subsection 2A(h) of that new section says that no one may, without lawful authority, knowingly make public the certified agenda or tape recording of a closed meeting.

The problem was how some local officials read that sentence. They took it to mean that anyone who sat in on a closed executive session was forbidden from ever saying anything about what was discussed, even to state their own opinion on the topic. The senator pointed out that reading the statute that broadly would raise a serious free-speech problem under the First Amendment: it would gag public officials from talking about public business.

The Attorney General rejected the broad reading. Looking at section 2A as a whole, the opinion concluded that subsection 2A(h) is about the physical records the government body has to keep, the certified agenda document and the tape, and nothing more. Other parts of section 2A describe those records: the certified agenda has to state the subject of each deliberation, it is available for inspection and copying only under a court order in a lawsuit, a judge can review it privately in a case alleging a violation, and it has to be preserved for at least two years. All of that language is about a tangible record. It cannot sensibly be stretched to cover what a person says out loud after the meeting is over.

So the opinion read subsection 2A(h) as a narrow, sensible companion to the record-keeping rule: the law makes the body keep a sealed record of the closed session so it is available if someone later sues over an Open Meetings Act violation, and 2A(h) makes sure that sealed record is used only for that purpose and not leaked. The prohibition is no broader than the record-keeping requirement it protects. People who attended the closed session are not barred from discussing its subject matter. Because the AG read the provision narrowly, it did not need to decide the constitutional free-speech question at all. A footnote added the obvious flip side: nothing in the act requires anyone to talk about a closed session either.

Currency note

This opinion was issued in 1989. 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 cited here as article 6252-17, V.T.C.S., has since been recodified into the Texas Government Code, and the certified-agenda and executive-session rules have been amended since 1989. Anyone with a present-day question about what may be said or released about a closed government meeting should check the current version of the Texas Open Meetings Act and recent case law rather than relying on the 1989 statute citations used here.

Who this opinion affected (as of 1989)

Members of city councils, school boards, and other public bodies: The opinion told them they were not gagged by the certified-agenda law. Having attended a closed session, they could still discuss the subject matter publicly, including voicing their own views.

Officials and lawyers handling closed-session records: The opinion made clear the release prohibition attached to the sealed record itself, the certified agenda and the tape, which stay sealed absent a court order in Open Meetings Act litigation.

Journalists and the public: The opinion protected the ability to learn about closed-session topics from attendees who chose to talk, while keeping the formal record itself sealed for its intended litigation use.

Common questions

Does the Open Meetings Act stop an official from talking about what happened in a closed meeting?
No. The Attorney General concluded that subsection 2A(h) bars releasing the certified agenda or tape recording of the closed session, but does not prohibit people who attended from talking afterward about the subject matter.

What exactly does subsection 2A(h) protect?
The tangible records of the closed session: the certified agenda (a written record of the subject of each deliberation and any action taken) and any tape recording. Those records stay sealed and are available only under a court order in a lawsuit brought under the act.

Why didn't the AG decide the First Amendment question?
Because it read the statute narrowly enough that no free-speech problem arose. When a narrow reading avoids a constitutional conflict, the opinion did not need to reach the First Amendment issue.

Does anyone have to talk about a closed session?
No. A footnote to the opinion pointed out that nothing in the Open Meetings Act requires a member of a governmental body to make statements about an executive session.

Background and statutory framework

Senator Kent A. Caperton, as chair of the Senate Finance Committee, asked the office to interpret a provision of section 2A of the Texas Open Meetings Act, article 6252-17, V.T.C.S. Section 2A was added in 1987. Acts 1987, 70th Leg., ch. 549, § 3, at 2212. It requires governmental bodies to maintain a certified agenda or tape recording of executive sessions. Attorney General Opinion JM-840 (1988). Subsection 2A(h) provides in part that no individual, corporation, or partnership shall, without lawful authority, knowingly make public the certified agenda or tape recording of a meeting or that portion of a meeting that was closed under the act. V.T.C.S. art. 6252-17, § 2A(h).

The senator explained that some local authorities read that language to mean that persons present in an executive session could not make any statements about the subject matter of the session, even to voice their own opinion, and pointed out that such an interpretation raises a serious question of interference with the freedom of speech guaranteed by the First Amendment. U.S. Const. amend. I; see Attorney General Opinion MW-563 (1982) at 5, 6.

The opinion interpreted subsection 2A(h) as applying only to the records of executive sessions that governmental bodies are required to keep under section 2A. It does not prohibit persons present at the executive session from afterwards talking about the subject matter. Reading the statute that way, the opinion did not reach the First Amendment issue.

The meaning of subsection 2A(h) was determined by reading section 2A as a whole. Subsection 2A(c) describes the certified agenda: it must state the subject matter of each deliberation and include a record of any further action taken, and the certified agenda of a closed session is available for inspection and copying only upon a court order in an action brought under the act. That inspection-and-copying language shows the certified agenda is a record; a tape recording, like a certified agenda, is likewise a record. See generally V.T.C.S. art. 6252-17a, § 2(2) (definition of "public records" under the Open Records Act). Section 2A repeatedly uses "certified agenda" and "tape recording" to refer to the tangible documents that record the executive session: the certified agenda or tape is available for in camera inspection by the judge in a lawsuit alleging a violation (§ 2A(e)); it must be preserved for at least two years after the meeting (§ 2A(f)); and members may not participate in a closed meeting knowing that a certified agenda is not being kept or a tape recording is not being made (§ 2A(g)). None of those requirements can rationally be applied to speech occurring after the meeting.

The legislature presumably used the terms "certified agenda" and "tape recording" consistently throughout section 2A. See Paddock v. Siemoneit, 218 S.W.2d 428, 435 (Tex. 1949). So subsection 2A(h) bars the release of those records and does not prevent members of the governmental body from talking about their recollections of the subject matter of the executive session. The purpose of section 2A was to ensure that a record of executive sessions would be available in the event of a lawsuit alleging an Open Meetings Act violation, and subsection 2A(h) ensures the record is used only for that intended purpose. The prohibition is a corollary to, and no broader than, the record-keeping requirement. Persons who attended an executive session are not prohibited by section 2A(h) from discussing its subject matter.

Citations

Statutory authority:

• V.T.C.S. art. 6252-17 (Texas Open Meetings Act), § 2A, including subsections 2A(c), 2A(e), 2A(f), 2A(g), and 2A(h)
• V.T.C.S. art. 6252-17a, § 2(2) (Open Records Act definition of "public records")
• Acts 1987, 70th Leg., ch. 549, § 3, at 2212 (enacting section 2A)
• U.S. Const. amend. I

Cases cited:

• Paddock v. Siemoneit, 218 S.W.2d 428, 435 (Tex. 1949)

Attorney General opinions referenced:

• JM-840 (1988); MW-563 (1982)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1071
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1989/jm1071.pdf

Original opinion text

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

July 11, 1989

Honorable Kent A. Caperton
Chairman
Finance Committee
Texas State Senate
P. O. Box 12068
Austin, Texas 78711

Opinion No. JM-1071

Re: Whether the "certified agenda" provision of the Open Meetings Act, article 6252-17, V.T.C.S., unduly restricts speech rights of members of governmental bodies (RQ-1681)

Dear Senator Caperton:

You request an opinion interpreting a provision of section 2A of the Texas Open Meetings Act, article 6252-17, V.T.C.S. Section 2A was added to the Open Meetings Act in 1987. Acts 1987, 70th Leg., ch. 549, § 3, at 2212. It requires governmental bodies to maintain a certified agenda or tape recording of executive sessions. Attorney General Opinion JM-840 (1988). Subsection 2A(h) of the act provides in part:

No individual, corporation, or partnership shall, without lawful authority, knowingly make public the certified agenda or tape recording of a meeting or that portion of a meeting that was closed under authority of this Act.

(Emphasis added.) V.T.C.S. art. 6252-17, § 2A(h).

You state that some local authorities have interpreted the quoted language to mean that persons present in an executive session cannot make any statements regarding the subject matter of the session, even to voice their own opinion about that subject. You point out that this interpretation raises a serious question of interference with the freedom of speech guaranteed by the First Amendment of the United States Constitution. U.S. Const. amend. I. See Attorney General Opinion MW-563 (1982) at 5, 6.

We interpret subsection 2A(h) as applying only to the records of executive sessions which governmental bodies are required to keep pursuant to section 2A of the act. It does not prohibit persons who are present at the executive session from afterwards talking about the subject matter of the session. Accordingly, we need not reach the first amendment issue.

The meaning of the language in subsection 2A(h) can be determined by looking at section 2A as a whole. Subsection 2A(c) describes a certified agenda:

The certified agenda shall state the subject matter of each deliberation and shall include a record of any further action taken. The certified agenda of closed or executive sessions shall be available for public inspection and copying only upon a court order in an action brought under this Act.

(Emphasis added.) Id. § 2A(c).

The language on inspection and copying in the above provision shows that the certified agenda is a record. A tape recording of the executive session, like a certified agenda, is a record. See generally V.T.C.S. art. 6252-17a, § 2(2) (definition of "public records" under Open Records Act).

Section 2A of the Open Meetings Act repeatedly uses the terms "certified agenda" and "tape recording" to refer to the tangible documents that record the executive session. For example, the certified agenda or tape is available for in camera inspection by the judge in a lawsuit involving an alleged violation of the act. Id. § 2A(e). The certified agenda or tape must be preserved for at least two years after the date of the meeting. Id. § 2A(f). Members of a governmental body may not participate in a closed meeting knowing that a certified agenda is not being kept or a tape recording is not being made. Id. § 2A(g). These requirements cannot be rationally applied to speech occurring after the meeting.

The "certified agenda" and "tape recording" mentioned in the provisions we have cited record the proceedings of the executive session. The legislature presumably used these two terms consistently throughout section 2A. See Paddock v. Siemoneit, 218 S.W.2d 428, 435 (Tex. 1949). In our opinion, subsection 2A(h) bars the release of such records, and does not prevent members of the governmental body from talking about their recollections of the subject matter of the executive session.

The purpose of enacting section 2A was to ensure that a record of executive sessions would be available in the event of a lawsuit alleging an Open Meetings Act violation. Subsection 2A(h) ensures that the record will be used only for that intended purpose. The prohibition is thus corollary to, and no broader than, the new record keeping requirement. Persons who attended an executive session are not prohibited by section 2A(h) from discussing its subject matter.[1]

SUMMARY

Subsection 2A(h) of article 6252-17, V.T.C.S., the Texas Open Meetings Act, applies to the certified agenda or tape recording kept as a record of an executive session. It does not prohibit members of a governmental body or other persons in attendance at an executive session from making public statements about the subject matter of that session.

Very truly yours,

JIM MATTOX
Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

JENNIFER S. RIGGS
Chief, Open Government Section, Opinion Committee

Prepared by Susan L. Garrison
Assistant Attorney General

[1] Nothing in the Open Meetings Act requires members of a governmental body to make statements about an executive session.