Last week, the Ohio Ethics Commission (OEC) issued an advisory opinion addressing the question of whether RC 102.03(B) prohibits a public official from disclosing information discussed during executive session.
As background, RC 102.03(B) prohibits public officials or employees from disclosing or using, without appropriate authorization, any information acquired by the public official or employee in the course of the public official’s or employee’s official duties in the following circumstances:
- The information is confidential because of statutory provisions;
- The information is confidential because it has been “clearly designated” as confidential. In these cases, the confidential designation must be warranted because of the status of the proceedings or the circumstances under which the information was received and preserving confidentiality must be necessary to the proper conduct of government business.
In its recent opinion, OEC reached the following conclusions:
- The use of executive session does not by itself create confidentiality.
- If it is clearly demonstrated that a public body has met all of the legal requirements necessary to appropriately discuss a specific matter in executive session, and the information is confidential by statute, or has been clearly designated as confidential when such designation is warranted and necessary, then the information discussed may be considered legally confidential under R.C. 102.03(B).
- R.C. 102.03(B) does not prohibit a public body from adopting a resolution, rule, or formal action in an open meeting that results from a discussion in executive session in compliance with the Open Meetings Act.
- If a document is a “public record” and is not otherwise exempt under one of the exemptions to the Public Records Act, the document may still be subject to public disclosure even if the public body appropriately discussed it in executive session.
As a reminder, even if the information discussed in executive session doesn’t rise to the level of being “legally confidential,” there are strong arguments for respecting the confidentiality of that setting. Ohio’s Open Meetings Act allows a board of education to remove itself from public view to discuss limited topics for executive session. If the information discussed in this limited permissible venue is publicly revealed, it defeats the purpose of the statute.
In addition, as a matter of boardmanship, the board members will be unable to use the opportunity to have fair and frank discussion amongst themselves in the future, because the confidentiality of the session is not respected by the entire board. If executive session discussions are revealed, it is more likely that board members will be unwilling to express themselves candidly in future executive sessions.
Revealing executive session discussion indicates poor boardmanship and a lack of understanding of the role of a public official. Board members have a duty to act in the best interests of the public office they represent and it is a rare occasion when that includes revealing the substance of executive session discussions.
If you have general questions about the new OEC opinion or executive sessions, please contact OSBA’s division of legal services.