FROM: Robert J. Freeman, Executive Director
The staff of the Committee on Open Government is authorized to issue advisory opinions.
The ensuing staff advisory opinion is based solely upon the information presented in your
Dear Ms. Davis:
I have received your letter of October 16 concerning the Indian land claims negotiations and your contention that public bodies must comply with various aspects of the Open Meetings Law in relation to the negotiations.
In this regard, as you are aware, Judge McCurn of the U.S. District Court for the Northern District of New York has ordered that:
"The settlement process is a confidential process. That
process, including any documents submitted to or prepared by
the Settlement Master, and any statements made during that
process are for settlement purposes only, are confidential, and shall be treated as compromise negotiations under Rule 408 of the Federal Rules of Evidence."
As the foregoing pertains to the Open Meetings Law, I emphasize that there are two
vehicles that potentially enable a public body to exclude the public from a meeting. One
involves the ability to enter into an executive session. Section102(3) of that statute defines
the phrase "executive session" to mean a portion of an open meeting during which the public
may be excluded, and the Law requires that a procedure be accomplished, during an open
meeting, before a public body may enter into an executive session. In short, prior to
conducting an executive session, a motion must be made that includes reference to the
subject or subjects to be discussed, and it must be carried by majority vote of a public body's membership.
The other vehicle for excluding the public from a meeting involves "exemptions." Section 108 of the Open Meetings Law contains three exemptions. When an exemption applies, the Open Meetings Law does not, and the requirements that would operate with respect to executive sessions are not in effect. Stated differently, to discuss a matter exempted from the Open Meetings Law, a public body need not follow the procedure imposed by §105(1) that relates to entry into an executive session. Further, although executive sessions may be held only for particular purposes, there is no such limitation that relates to matters that are exempt from the coverage of the Open Meetings Law.
Relevant to the matter is §108(3), which exempts from the Open Meetings Law:
"...any matter made confidential by federal or state law."
From my perspective, based on the court order, the negotiation or settlement process is a
matter made confidential by law and is outside the coverage of the Open Meetings Law. If
that is so, again, the procedure for entry into executive session would not apply. Similarly,
the requirements regarding notice, the taking of minutes and other aspects of the Open
Meetings Law would be inapplicable.
I hope that the foregoing serves to enhance your understanding of the matter and that
I have been of assistance.