The state Open Meetings Law applies to the meetings of “public bodies.” A body is public if it meets the statutory definition of a public body, if it is a committee of a public body or if it is a certain type of hospital agency. Important language extends the reach of the law to individual board or agency members or their surrogates who have been explicitly or implicitly delegated government-like functions or “advisory” responsibilities.[2]
A body is public if it is (i) an elected or appointed body (ii) with two or more members that (iii) exercises or is authorized to exercise a legislative, policy-making, quasi-judicial, administrative or advisory function.[3] [This is a change from the pre-1994 law, which defined public bodies by their “source of power” and did not address “appointed” officials.] The law’s requirements — advance notice of meetings, access to meetings and minute-keeping — are triggered under usual circumstances by the presence of a majority of the members of a board, commission or agency.
An issue that has come to the forefront of open meetings and open records debate is whether a private organization performing work for a public body is subject to the requirements of the open government laws. By eliminating the awkward “source of power” test of the old open meetings law, the General Assembly has made easier the argument that any group that carries out activities on behalf of a public body or advises a public body is treated as a public body for the purposes of the Open Meetings Law.[4] Likewise, a public body may not delegate responsibility to private entities and thereby avoid performing public functions in a public manner.
An attorney general’s opinion has noted that a private, non-profit entity carrying out delegated governmental functions might be held subject to the Open Meetings Law.[5] However, in the parallel context of private entities conducting public work, courts have held that records in the possession of the private entity are not public. [6]
Committees of public bodies also are public bodies. If a board qualifies as a public body under the basic definition and if that board has committees composed of its own members, those committees are fully public. In News & Observer Publishing Company v. Board of Education, the N.C. Court of Appeals remarked that “we do not think a board can evade the provisions of statutes requiring its meetings to be open to the public merely by resolving itself into a committee of the whole.”[7]
The law makes clear that “constituent institutions of the University of North Carolina” are subject to the Open Meetings Law.[8]
The governing boards of public hospitals are covered by the law. Remember, these hospitals frequently are operated by non-profit corporations. If the local government has outstanding debt for the hospital or if the local government appropriates funds to support the hospital, then the governing board of that hospital (and any subdivision thereof) is a public body. Even if these conditions are not met, if the hospital has been sold by a local government to a non-profit corporation through an agreement under which the corporation agrees to operate the hospital as a community general hospital, the hospital’s governing board is a public body.[9]
A number of entities in state government are exempted, in whole or in part, from the law. Notably, in recent years the General Assembly has removed the exemption for several public bodies:[10] the Advisory Budget Commission (2007);[11] the Joint Legislative Utility Review Committee (2011); The Joint Select Committee on Low-Level Radioactive Waste (2011); the Legislative Committee on New Licensing Boards (2011); and the North Carolina Study Commission on Aging (2011). Meetings of these public bodies are now open.
Other exemptions from the Open Meetings Law include the court system, quasi-judicial agencies of state (but not local) government while considering or making decisions, state licensing boards while dealing with examinations or with individual licensees or applicants for licensing, and the Judicial Standards Commission.
[2] N.C. Gen. Stat. §143-318.10(b) (public body means any elected or appointed authority, board, commission, committee, council or other body of the state composed of two or more members that exercises or is authorized to exercise a legislative, policy-making, quasi-judicial, administrative or advisory function) (emphasis added).
[3] Id.
[4] The states that have addressed the issue of “privatization” of public responsibility have ruled that a private entity performing a public function is subject to the openness requirements of a public body. Red and Black Publishing Co., Inc. v. Bd. of Regents, 262 Ga. 848, 427 S.E.2d 257, 263, 21 Media L. Rep. (BNA) 1309 (1993) (“having delegated official responsibility and authority” to a nongovernmental body, the Board of Regents “cannot hide behind” the delegate and thereby deny access); News and Sun-Sentinel v. Schwab, Twitty & Hanser Architectural Group, Inc., 596 So.2d 1029, 1031, 20 Media L. Rep. (BNA) 1055 (Fla. 1992) (“a public agency cannot avoid disclosure under the Act by contractually delegating to a private entity that which otherwise would be an agency responsibility”); Fritz v. Nodlor Constr. Co., 386 So.2d 899, 901 (Fla. Dist. Ct. App. 5th DCA 1980) (independent contractor “is an 'agency' under [public records law] insofar as it performed services for the City as the City Engineer, relating to the treatment plant”).
[5] 1994 WL 1026167.
[6] Durham Herald Co. v. Low-Level Radioactive Waste Auth., 110 N.C. App. 607, 430 S.E.2d 441 (1993).
[7] 29 N.C. App. 37, 223 S.E.2d 580 (1976).
[8] N.C. Gen. Stat. §143-318.10(b). Interpreting the old law, the N.C. Supreme Court found the faculty of the University of North Carolina School of Law not to be a public body because it was not a “body politic.” Student Bar Ass'n v. Byrd, 293 N.C. 594, 239 S.E.2d 415 (1977). Arguably, the streamlined analysis now in place would render a different result.
[9] News & Observer Publishing Co. v. Wake County Hosp. Sys., 55 N.C. App. 1, 284 S.E.2d 542 (1981), cert. denied, 305 N.C. 302, 291 S.E.2d 151, appeal dismissed and cert. denied, 459 U.S. 803, 103 S. Ct. 26, 74 L. Ed. 2d 47 (1982).
[10] N.C. Gen. Stat. §143-318.14(A)
[11] N.C. Gen. Stat. §143-318.15; section was removed in its entirety in 2007.
