DAN MORALES 

ATT”RNEY GENERAL 

@ffice of the Bttornep @enera 

&ate of I&ems 

June 15, 1993 

Mr. Kenneth H. A&worth 

Commissioner 

Texas Higher Education 

Coo- Board 

P.O. Box 12788 

Austin, Texas 78711 

Opiion No. DM-227 

Ke: 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 commissiotler Ashworth: 

. . You ask our opinion as to whethe-r a member of a governmental body subject to 

the Open Meetings Act (the “act”), V.T.C.S. ticie 6252-17, may review the tape 

recording~of a closed meeting in which the individual participated. You state that the 

individualinthiscaseisaco mmunity 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 alI of its 

regular, special or ded meetings to the public, except as permitted in the comtitution or 

in the act itself V.T.C.S. art. 6252-17, 32(a). Section’2 of the act permits a 

governmental body subject to the act to exclude the public f?om portions of a meeting at 

which the members of the body discuss certain subjects. See, e.g., id. 5 2(f), (g), (h), (j), 

(m). With one exception not relevant here, section 2A of the act requires a govemmentsl 

body, wha it mee-ts in a closed meeting, to keep a certified agenda or tape recording of 

the peedings Id. 8 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 ce&%d 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 c&lied agenda or tape recording except in compliance with a 

court order. 

p. 1180 
hfr. &llWthH. Ashworth - h&2 2 (DM-227) 

Section 2A(c) and (II) of the Open Meetings Act refers to release of a certitled 

agenda or tape recording of a closed meeting only in terms of release fo the public. See 

Attorney Oeneml Opiion JM-995 (1988) at 6. In our opinion, a member of a 

governmental body who participated in a closed meeting may review the certitied agenda 

or tape recording of a closed meeting without such review constituting a release to the 

public. Furthermore, such review of the certitied agenda or tape recording of a closed 

meeting would not, by itself compromise the con6dentislity of a properly convened closed 

meeting. Thus, we do not believe that the act precludes a member of a governmental body 

from reviewing the certitied 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 certhkd 

agenda or tape recording for at least two years after the date of the closed meeting. See 

id 6 2A(f); see also Penal Code $37.10 (prexribing penalties for tampering with 

govemmeitt record). Given the purpose of the c&tied 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 governmentsl 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 procedum for allowing such a review. Should a governmental body choose to adopt 

such a procedure, it should do so in an open meeting.’ See V.T.C.S. art. 6252-17, 3 2 

(listing &mmmncm in which governmentsl 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 govemmental body from reviewhtg a certikd agenda or tape recordhtg of a 

closed meeting in which the member participated. Although section 3(a)(l) 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 Jkision No. 468 (1987) at 34. 

~AAgovanmntalbodymustsdasabodyatap~calledmccting~wfiichall~havc 

notice. Webster v. Texas 13 Pac. Motor Trmwp. Co., 166 S.W.Zd 15.16-77 (TX 1942). 

p. 1181 
Mr. Kenneth H. Ashworth - Page 3 (DM-227) 

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 govenunental 

body the cut&d 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. 

WILL PRYOR 

Fii Assistsnt Attorney General 

MARYKELLER 

Deputy Attorney General for Litigation 

RENBAHICKS 

State Solicitor 

MADELEINB B. JOHNSON 

Chair, Opiion Committee 

Prepared by Kymkrly K. Oltrogge 

AssistU Attorney General 

DAN MORALES 

Attorney General of Texas 

p. 1182