One perennial favorite topic on OSBA’s legal hotline is executive sessions. Lately, we’ve been getting questions about whether the information discussed in executive session is legally confidential. It seems like it should be – after all, the board is going behind closed doors to have private discussions on sensitive matters. But is it?
The Open Meetings Act (OMA) is found in Ohio Revised Code (RC) 121.22. It permits executive sessions and spells out how they should be used, doesn’t have any general provisions about whether the matters discussed are or should be considered confidential. The Ohio Attorney General’s Sunshine Manual advises that, with the exception of sharing information about potential property sales, the OMA “does not prohibit the public body or one of its members from disclosing the information discussed in executive session.”
However, there is a provision of the Ohio Ethics Law – RC 102.03(B) – that prohibits a public official from disclosing confidential information. It’s a first-degree misdemeanor, and a person convicted under the section can receive a six-month jail sentence and/or a $1000 fine. The law prohibits any public official or employee from disclosing or using information they acquire in the performance of their public 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.”
One of the statutory bases for going into executive session is for the consideration of “matters required to be kept confidential by federal laws or regulations or state statutes.” RC 121.22(G)(5). Items discussed when a school board is in executive session for this purpose fall into the first category of RC 102.03(B). In other words, the Ohio Ethics Law prohibits a school board member from disclosing or using confidential information shared in executive session if the basis for the session was that the matter must be kept confidential because of a law or regulation. If the board is using some other basis for an executive session, but the information discussed is still "confidential" because of a statute, the restriction in RC 102.03(B) would apply to those discussions too.
However, there is no statute in Ohio stating that information discussed in an executive session is confidential simply because of the setting of the discussion. In fact, in a 2020 advisory opinion, the Ohio Ethics Commission concluded that “the use of executive session does not by itself create confidentiality.” When the board goes into executive session and discusses matters that are not confidential by statute, whether the information discussed in that session is confidential for purposes of RC 102.03(B) depends on whether it fits within the other category. That requirement has three criteria:
- The information must have been clearly designated as confidential.
- The confidential designation must be warranted either because of the status of the proceedings or because of the circumstances under which the information was received.
- Preserving the confidentiality of the information must be necessary to the proper conduct of government business.
What about documents presented to the board in executive session? Are they confidential? The Ohio Attorney General’s Sunshine Manual says probably no: “If a document is a ‘public record’ and is not otherwise exempt under one of the exemptions to the Public Records Act, the record will still be subject to public disclosure even if the public body appropriately discussed it in executive session.”
So, is information discussed in executive session ever confidential for purposes of Ohio’s criminal law? It depends. If the information is confidential because of a state or federal statute, the answer is yes. If not, the board should consider the three-part test in RC 102.03(B). If the board will be discussing something in executive session that might meet this test of confidential information, it’s a good idea to consult with your legal counsel to determine what steps the board should take to preserve confidentiality of the information.
One final note: Even if there isn’t a law absolutely prohibiting disclosure of information discussed in executive session, one aspect of good boardmanship is fostering an atmosphere where board members can be honest and frank with one another. Further, board members have a duty to act in the best interest of the public agency they represent. If a board member discloses information or discussion from executive sessions, it will negatively affect relationships among board members and the district's best interest.
Want more information about executive sessions, the OMA, and all things related to board meetings? Check out the forthcoming OSBA Journal According to Law article for a discussion of board meeting best practices. If you have general questions about these issues, please call OSBA’s legal division at (855) 672-2529 or (855) OSBA-LAW. For questions about specific meetings, executive sessions, or records, reach out to your board’s counsel.