                           @ffice of the Bttornep @enera
                                   &ate of I&ems
DAN MORALES
 ATT”RNEY
       GENERAL                              June 15, 1993

     Mr. Kenneth H. A&worth                       Opiion No. DM-227
     Commissioner
     Texas Higher Education                       Ke: Whether a member of a governmental
      Coo-         Board                          body subject to the Open Meetings Act,
     P.O. Box 12788                               V.T.C.S. article 6252-17, may review the tape
     Austin, Texas 78711                          of a closed meeting in which the member
                                                  participated (RQ-202)

     Dear commissiotler Ashworth:

          .. You ask our opinion as to whethe-r a member of a governmental body subject to
     the Open Meetings Act (the “act”), V.T.C.S. ticie 6252-17, may review the tape
     recording~of a closed meeting in which the individual participated. You state that the
     individualinthiscaseisaco      mmunity college trustee. We conclude that the act does not
     prohibit such an individual from reviewing the tape recording.

             Under the act, every governmental body subject to the act must open alI of its
     regular, special or ded meetings to the public, except as permitted in the comtitution or
     in the act itself    V.T.C.S. art. 6252-17, 32(a).     Section’2 of the act permits a
     governmental body subject to the act to exclude the public f?om portions of a meeting at
     which the members of the body discuss certain subjects. See, e.g., id. 5 2(f), (g), (h), (j),
     (m). With one exception not relevant here, section 2A of the act requires a govemmentsl
     body, wha it mee-ts in a closed meeting, to keep a certified agenda or tape recording of
     the peedings       Id. 8 2A(a), (d).

              Section 2A(c) expressly permits a governmental body to release to the public a
     certified agenda only upon court order in an action brought under the act. Previously, the
     attorney general has concluded that section 2A of the act uses “certified agenda” and “tape
     recording” interchangeably. See Attorney General Opinion JM-1071 (1989) at 2; Open
     Records Decision No. 495 (1988) at 3 n.1. Thus, although section 2A(c) of the act
     discusses the release of a ce&%d agenda, the same provision applies to the release of a
     tape recording Of a closed meeting. Section 2A(h) prohibits any person from knowingly
     releasing to the public a c&lied agenda or tape recording except in compliance with a
     court order.




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hfr. &llWthH.   Ashworth - h&2 2         (DM-227)




        Section 2A(c) and (II) of the Open Meetings Act refers to release of a certitled
agenda or tape recording of a closed meeting only in terms of release fo the public. See
Attorney Oeneml Opiion JM-995 (1988) at 6. In our opinion, a member of a
governmental body who participated in a closed meeting may review the certitied agenda
or tape recording of a closed meeting without such review constituting a release to the
public. Furthermore, such review of the certitied agenda or tape recording of a closed
meeting would not, by itself compromise the con6dentislity of a properly convened closed
meeting. Thus, we do not believe that the act precludes a member of a governmental body
from reviewing the certitied agenda or tape recording of a closed meeting in which the
member had participated.

         We note, however, that, in the context of the act, the purpose of a certified agenda
or tape recording of a closed meeting is to provide evidence in the event of litigation in
which a person alleges that the governmental body violated the act. See V.T.C.S. art.
6252-17, $2A(e), (h). The governmental body is obligated to preserve the certhkd
agenda or tape recording for at least two years after the date of the closed meeting. See
id 6 2A(f); see also Penal Code $37.10 (prexribing penalties for tampering with
govemmeitt record). Given the purpose of the c&tied agenda or tape recording, and
given the governmental body’s statutory duty to preserve the certified agenda or tape
recording as evidence in the event of litigation, we believe that each governmentsl body is
authorized to decide for itself whether to permit a member who has participated in a
closed meeting to review the certified agenda or tape recording of that meeting as well as
the procedum for allowing such a review. Should a governmental body choose to adopt
such a procedure, it should do so in an open meeting.’ See V.T.C.S. art. 6252-17, 3 2
(listing &mmmncm in which governmentsl body may conduct closed meeting).

        In addition, the Open Records Act, V.T.C.S. article 6252-17a, does not prohibit a
member of a govemmental body from reviewhtg a certikd agenda or tape recordhtg of a
closed meeting in which the member participated. Although section 3(a)(l) of the Open
Records Act normally requires that a governmental body withhold from required public
disclosure a certified agenda or tape recording of a closed meeting (see Open Records
Decision No. 495 (1988) at 3), the Open Records Act has no provision that would
preclude members of a governmental body from internally reviewing nonpublic
information. See Open Records Jkision No. 468 (1987) at 34.




        ~AAgovanmntalbodymustsdasabodyatap~calledmccting~wfiichall~havc
notice. Webster
              v. Texas13Pac.Motor Trmwp.Co., 166 S.W.Zd15.16-77 (TX 1942).


                                        p.   1181
Mr. Kenneth H. Ashworth - Page 3         (DM-227)




                                 SUMMARY

              Neither the Open Meetings Act, V.T.C.S. article 6252-17, nor
          the Open Records Act, V.T.C.S. article 6252-17a, precludes a
          governmental body from releasing to a member of the govenunental
          body the cut&d agenda or tape recording of a closed meeting in
          which the member participated.       A governmental body may
          implement a procedure for providing access to the certified agenda
          by a member of the governmental body, and should do so in an open
          meeting.




                                                    DAN      MORALES
                                                    Attorney General of Texas

WILL PRYOR
Fii Assistsnt Attorney General

MARYKELLER
Deputy Attorney General for Litigation

RENBAHICKS
State Solicitor

MADELEINB B. JOHNSON
Chair, Opiion Committee

Prepared by Kymkrly K. Oltrogge
AssistU Attorney General




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