Conducting Public Business in Public: Meetings, Records, & Participation Ian Marquand Montana Board of Medical Examiners Society of Professional Journalists Montana Freedom of Information Hotline (1987-2011)

Is it in your state’s Constitution? Why must Medical and Osteopathic Boards conduct their business in public? Is it in your state’s Constitution? The public has the right to expect governmental agencies to afford such reasonable opportunity for citizen participation in the operation of the agencies prior to the final decision as may be provided by law. Montana State Constitution of 1972, Article 1, Sec. 8

Is it in your state’s Constitution? the merits of public disclosure. Why must Medical and Osteopathic Boards conduct their business in public? Is it in your state’s Constitution? No person shall be deprived of the right to examine documents or to observe the deliberations of all public bodies or agencies of state government and its subdivisions, except in cases in which the demand of individual privacy clearly exceeds the merits of public disclosure. Montana State Constitution of 1972, Article 1, Sec. 8 NOTE: The competing rights of individual privacy vs. the public’s right to know may create conflicts for your Board.

Which meetings must be open? What does your state code say? “Public/governmental” entities or bodies may include: Boards Bureaus Commissions Agencies Any entity funded by public money

How about committees and sub-committees? What does your state code say? Any committee or subcommittee appointed by a public body or association…for the purpose of conducting business that is within the jurisdiction of that agency is subject to the requirements of this section. Montana Code Annotated

What defines a public meeting? What does your state code say? Does it define a quorum? Does it speak to “constituent membership”? Does it distinguish between in-person and telephonic/electronic meetings? Does it cover all business or only specified decisions or discussions? Does it cover information-gathering meetings where no decisions are made?

Is public comment required at meetings? What does your state code say? Is there a requirement for a public comment period at all meetings? Does your Board provide opportunities for general public comment? Do you require notice or a request to speak in advance? Are there exemptions that prohibit comment on certain subjects? (such as contested cases with licensees or applicants)

Public comment/process on rulemaking What does your state code say?    How long is the public comment period? Is a public hearing required? How are public comments delivered to the Board? In full? In summary? How must the Board consider/respond to public comments? How is the Board’s decision to adopt/amend/withdraw rules proposals publicized?

What does your state code say? For what reasons can a meeting of a governmental body be closed to the public? What does your state code say? Who can close a meeting? How must it be done? For what reasons? Individual privacy? Health information? Potential or actual litigation? Personnel matters, inc. hiring, firing, disciplinary action? Can an individual waive the right of privacy and request a public discussion?

What type of personal information is “private”? Look to more than the state code. Private, personal information is generally limited to family problems, health problems, drug and alcohol problems. (MT Attorney General Opinion) Information relating to marriage to procreation, contraception, family relationships, and child rearing. (MT Court decision)

Can the Board vote on issues during closed meetings? What does your state code say? If allowed, how must that action be recorded in minutes? Must legal counsel approve such action?

Can governmental bodies meet by telephone or other electronic means? What does your state code say? Are there restrictions about circumstances? How is the public accommodated for such meetings? Can the Board meet in executive session in a closed conference call?

Agendas and public notice of meetings What does your state code say? Must agendas be posted in advance of a meeting? If so, where? How far in advance must a meeting be noticed to be legal? Must executive session meetings be noticed in advance? Do agency policies address this instead of statute or rules? NOTE: Meeting agendas generally are considered public records in every state.

What does your state code say? Minutes of meetings What does your state code say? Are minutes required to be in a prescribed form? (Written? Audio recording?) Must they be posted in a public place? Are draft minutes treated differently than approved minutes? How are executive session minutes treated? Do agency or Board policies require more than the law requires? NOTE: Meeting minutes generally are considered public records in every state.

Can pictures or recordings be taken in open meetings? What does your state code say? Can reporters record or take pictures at any time? Any restrictions to press coverage? Can the presiding officer restrict the media? If so, how? Can others besides journalists record the meeting on audio and video?

What are the remedies if a meeting was illegally closed? What does your state code say? Can a journalist or citizen appeal an alleged illegally closed meeting? If so, how? Any time limit on that appeal? Internal agency review? Or must a lawsuit be filed in court? If the appellant prevails, what are the remedies? Reversal of a decision? Awarding of attorney’s fees?

What Board records or documents might be sought as “public records”? What does your state code say? *Meeting agendas and minutes, inc. audio recordings of open meetings *E-mails between Board members or between agency and Board members *Proposed legislation, rules, statements or policies *Committee reports *Information submitted to the Board by the agency or external parties *License applications (some information subject to right to privacy) *Disciplinary notices, stipulations, final orders or other documents *Statistical information on licensees, applications *Financial information

When a public records request arrives. What does your state code say? Any restrictions on who can request records? (State citizens only?) Is there a required time to respond to a records request? Does the state (or your Board) require a request in writing? Is there a prescribed form or process to request records? Who makes the ultimate decision about providing records (or not)? Are draft documents treated the same as final or approved documents? Any laws, rule, policies about providing written or electronic copies?

BOARD MEMBERS AND PUBLIC INFORMATION 9 things to remember When the Board is in session, you are always “on the record.” Audio recordings of meetings will not be edited. Phone lines may remain open even if the audio recording is paused. Any documents you bring to the meeting become public records. Your decisions are public actions. The public has a right to question and criticize your actions. The news media has a right to cover your meetings and report your actions. Be responsible in (and for) your words and actions. The Golden Rule is always good advice. Treat others as you wish to be treated.

Questions?