following is from MMA website and K&P law and said material was covered at the last meeting of MMA in January 2016.


Nearly five years after the enactment of the “new” Open Meeting Law (“OML”), the Attorney General’s Division of Open Government (“Division”), through the issuance of opinions on particular complaints, continues to refine our understanding of the law and implementation thereof. Review of these opinions highlights nuances in how the Division interprets the OML and can assist boards in avoiding violations. While the Division’s resolution of a complaint applies only to the particular governmental body against which the complaint was lodged, it sets a precedent for resolution of similar complaints that may not appear in the OML or Division regulations adopted thereunder. The database of Division determinations is available on the Attorney General’s website at http://www.oml.ago.state.ma.us/Search.aspx?section=1 and may be searched by municipality, date or keywords. Below are some notable decisions from 2015 of which governmental bodies and their staff should be aware. Executive Session: Single Item Meeting Notice – On occasion, a board may schedule a special meeting for the purpose of addressing a single issue in executive session. As always, the OML, specifically G.L. c.30A, §21, requires the governmental body to begin the meeting in open session and then vote by roll call to enter executive session. The Division has determined, however, that in such a case, a board must include an item for the open session portion of the meeting, even if the only action to be taken is voting to enter executive session. The Division reasoned, “Listing ‘open session’ on the meeting notice is the only means by which members of the public are informed that a public body will, in fact, hold an open meeting that they are permitted to attend.” OML 2015-177, OML 2015-87. Therefore, to avoid a potential violation of the OML, if a board intends to hold a meeting only for the purpose of addressing an executive session matter, the meeting notice must first list the open session in a form similar to the following, “1. Open Session for Purpose of Voting to Enter Executive Session.” Executive Session Minutes: Collective Bargaining Strategy – A board may, pursuant to G.L. c.30A, §21(a)(3), enter executive session for the purpose of discussing strategy with regard to collective bargaining contract negotiations, but only so long as an open session “may have a detrimental effect on the bargaining position of the public body.” The records of an executive session, including minutes, must typically be released when the purpose of the session is completed. Some public bodies have argued that the minutes, which may contain negotiating strategies, have a continuing need to be withheld as potentially affecting future negotiations. The Division has agreed that such minutes may be withheld for a period, but that ”such minutes may not be withheld indefinitely.” OML 2015-62. The Division held that at some point the basis for withholding these minutes, i.e., that release would be “detrimental” for future negotiations, must expire. At this time, no appellate court has ruled on the application of the exemption and the ability to withhold permanently executive session minutes concerning collective bargaining strategy. Importantly, however, other exemptions from disclosure under the Public Records Law may still apply and be asserted in response to a request for such minutes.

Jeff Bennett