DAN MORALES

ATT”RNEY GENERAL 

# @fficeoftheBttornep @enera

&ate ofI&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-ra 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 anindividual 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 aspermitted inthe 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 ofthe body discuss certain subjects. See, e.g., id. 52(f), (g), (h), (j), (m). With one exception not relevant here, section 2A ofthe act requires agovemmentsl body, wha it mee-tsin a closed meeting, to keep a certified agenda or tape recording of thepeedings Id. 82A(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 2Aofthe actuses “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 Ofa 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. 1180hfr. &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 aclosed meeting only interms ofrelease fo thepublic. 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, byitself compromise the con6dentislity ofaproperly convened closed meeting. Thus, wedonot believethat the actprecludes amember ofagovernmental body from reviewing the certitied agenda or tape recording of a closed meeting in which the memberhadparticipated.

We note, however, that, inthe context ofthe act, the purpose ofacertified agenda

or tape recording of a closed meeting is to provide evidence inthe 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 ofthe closed meeting. See id 62A(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 asevidence inthe event oflitigation, 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 ofthat meeting aswell as the procedum for allowing such areview. 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, 32 (listing &mmmncm inwhich governmentsl body mayconduct closed meeting).

In addition, the Open Records Act, V.T.C.S. article 6252-17a, does not prohibit a member of agovemmental body from reviewhtg a certikd agenda or tape recordhtg ofa closed meeting in which the member participated. Although section 3(a)(l) ofthe 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. SeeOpenRecords Jkision No. 468 (1987) at 34.

~AAgovanmntalbodymustsdasabodyatap~calledmccting~wfiichall~havc notice.Webster

v.Texas 13 Pac. MotorTrmwp.

Co.,166S.W.Zd

15.16-77 (TX 1942).

p. 1181Mr. 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 ofthe 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 amember ofthe governmental body, and should do so in anopen meeting.

WILL PRYOR Fii Assistsnt Attorney General

MARYKELLER Deputy Attorney General forLitigation

RENBAHICKS State Solicitor

MADELEINB B.JOHNSON Chair, Opiion Committee
Prepared by Kymkrly K. Oltrogge AssistU Attorney General DAN MORALES Attorney General ofTexas

p. 1182