Under Ohio’s Open Meetings Act, boards and other public bodies are permitted to enter executive session to discuss specific topics spelled out in the law. In essence, executive session is a built-in exception to the general requirement that public bodies conduct their deliberations in public. This provision recognizes that the nature of certain topics makes privacy and discretion in deliberations paramount.
The need for and expectation of confidentiality and privacy is at the heart of executive session, and board members participating in executive session should honor this principle by keeping the contents of executive session discussions private. There is a reason that boards choose to have discussions in executive sessions. Much of the discussion that occurs in executive session is sensitive. Divulging parts of these discussions can unnecessarily damage the personal reputations of employees and students, increase possible legal risk to the district, compromise the district financially or even sometimes create a security risk. Disclosure is also likely to severely damage the trust and working relationship among board members.
With that said, the law does not automatically confer legal confidentiality on discussions that occur in executive session. This means that, in some cases, the law may not compel board members to keep discussions confidential without further action by the board. Ohio Revised Code 102.03(B) prohibits public officials from “disclos[ing] any information acquired by the public official or employee in the course of [their] official duties that is confidential because of statutory provisions, or that has been clearly designated to the public official or employee as confidential when that confidential designation is warranted because of the status of the proceedings or the circumstances under which the information was received and preserving its confidentiality is necessary to the proper conduct of government business.” Violation of RC 102.03 is a criminal misdemeanor.
In other words, if the information discussed in executive session is inherently confidential by statute (for example, student educational records protected by FERPA), board members are required by law to keep that information confidential. If the information is not inherently confidential by law, the board will need to take extra steps in order to legally prohibit individuals from divulging that information.
The Ohio Ethics Commission (OEC) has shed some light on this topic in Advisory Opinion No. 2020-02. In order to make it illegal to divulge the contents of executive session discussion not inherently deemed confidential by statute, the board would need to take some action to give notice of the confidentiality of that information and establish why confidentiality is necessary for the proper conduct of board business. Neither the statute nor the OEC opinion shed significant detail on a method by which a board may make this designation, but it likely requires the board to take some official action in an open session.
Lastly, boards should remember that documents discussed in executive session are not always inherently confidential either. Some of these documents may be public records that must be disclosed to the public upon request. Others may be shielded from disclosure by law (for example, private student or personnel files, attorney work-product, etc.). In short, the confidentiality of a document discussed in executive session is determined by the nature of the document itself—not by the fact that the board discussed it in executive session.