Other exceptions to the Open Meetings Act

Lawmakers over time have created a limited number of meeting exceptions to the Open Meetings Act. Below is a list:

Public Official Associations, T.C.A. 8-44-102(a)(E): “The board of directors of any association or nonprofit corporation authorized by the laws of Tennessee that was established for the benefit of local government officials or counties, cities, towns or other local governments or as a municipal bond financing pool… may conduct an executive session to discuss trade secret or proprietary information; provided, that a notice of the executive session is included in the agenda for such meeting.” 

Labor negotiations “open” and shut, T.C.A 8-44-201(b): “Nothing contained in this section shall be construed to require that planning or strategy sessions of either the union committee or the governmental entity, meeting separately, to be open to the public.”

But, the statute makes it clear that negotiating sessions where government representatives sit down with the employee union to negotiate “are open and subject to the open meetings act.” Subsection (d) requires “Both sides shall decide jointly and announce in advance of any such labor negotiations where such meetings shall be held.”

Language in section (b) above replaced an earlier reference in 8-44-102 that strategy meetings are open to the public. It is unclear why that was not removed in 2009 when (b) was adopted.

State Audit Committees, T.C.A. 4-35-108: “Except as provided in subsection (b), all meetings of an audit committee created pursuant to this chapter shall abide by the notice requirements adhered to by the state governing board, council, commission, or equivalent body to which the audit committee is attached.

“(b) All meetings of an audit committee created pursuant to this chapter shall be subject to the open meetings provisions of title 8, chapter 44, except that the audit committee may hold confidential, nonpublic executive sessions to discuss:…matters designated as confidential or privileged under this code; litigation; audits or investigations; matters involving information … where the informant has requested anonymity.” Plans to close the meeting and “general nature of discussions” for the closure shall appear on the public agenda.

Public Hospitals Marketing strategies and strategic plans, T.C.A. 68-11-238: This 2008 amendment was intended to allow hospital boards to close their meetings to discuss and develop marketing strategies and strategic plans and protect that information from their private or non-profit competitors.  It has been used and exploited since to hide information about  possible mergers, sale of local public hospitals, and executive bonus packages.

Under the statute, before a meeting can be closed, hospital board members have to vote in public on whether it needs to meet in private. A simple majority vote of members in attendance is required. The open meetings law bans secret ballots.

The exemption says nothing else shall be discussed during the closed meeting, and “Action by the board of the hospital adopting a specific strategy or plan shall be subject to the open meetings laws and the adopted strategy or plan, and the studies that were considered in the adoption of the specific strategy or plan, shall then be subject to the public records laws. The records shall be available for public inspection at least seven (7) days before any vote to adopt such strategy.”

Suspension or expulsion of students, T.C.A. 49-6-3401(c)(6): This exemption covers school board meetings when the board is hearing student disciplinary appeals and was passed under the premise that student records under the federal student privacy laws (FERPA) would be used in the proceedings.

If the “board conducts a hearing as a result of a request for review by a student, principal, principal-teacher or assistant principal, then … the hearing shall be closed to the public, unless the student or student’s parent or guardian requests in writing within five (5) days after receipt of written notice of the hearing that the hearing be conducted as an open meeting. If the board conducts a hearing as a result of a request for review by a student, principal, principal-teacher, or assistant principal that is closed to the public, then the board shall not conduct any business, discuss any subject or take a vote on any matter other than the appeal to be heard.”

School security, T.C.A. 49-6-804: The legislature mandated in 2007 that school districts “adopt a comprehensive district-wide school safety plan and building-level school safety plans regarding crisis intervention, emergency response and emergency management.”

Those plans were adopted routinely and without incident or controversy, but after the Newtown, Conn., school shooting, the state School Boards Association asked the legislature to close records and school board meetings. Controversy arose after one county convened a government-wide committee, including multiple members of the same governing body but only a single school board member, to examine its plans. That led the legislature to adopt this:

Subsection (b) “Any meeting concerning school security, the district-wide school safety plans or the building-level school safety plans shall not be subject to the open meetings laws compiled in title 8, chapter 44.

“Though closed to the general public, reasonable notice shall be provided to the general public prior to such a meeting.

“The board shall not discuss or deliberate on any other issues or subjects during such a meetin