Closed Session Deep Dive: Privileged or Confidential Information

The open meetings law requires all official meetings of public bodies to be open to the public. G.S. 143-318.10(a). However, government bodies can hold closed-door meetings, known as closed sessions, in certain limited circumstances. This post focuses on one of those limited exceptions—closed sessions held for the purpose of preventing the disclosure of confidential or privileged information—and is Part 4 of a series examining each of the closed session purposes.

Purpose (a)(1): Protecting materials that are privileged, confidential, or not public record

Under G.S. 143-318.11(a)(1), government bodies may enter closed session to prevent disclosing information that is confidential or privileged under state or federal law. This subsection also authorizes closed sessions to protect non-public information under Chapter 132 of the General Statutes.

Motions to enter closed session for this purpose have an additional procedural requirement. Rather than just stating the closed session purpose, the motion must also identify the law that makes the information confidential, privileged, or not public record. G.S. 143-318.11(c). The motion can provide the name of the law or a specific legal citation. Identifying the underlying authority allows the public to verify or dispute claims of privilege and confidentiality, promoting the open meetings law’s policy of transparency. Failing to identify the relevant confidentiality or privilege law violates the open meetings law and could subject a board to legal challenge, including a court to invalidating any actions taken within the closed session. G.S. 143-318.16A(a).

Let’s walk through the language of the statute.

“To prevent the disclosure of information that is privileged or confidential pursuant to the law of this State or of the United States…”

This closed session purpose protects privileged or confidential information. When information is privileged under state or federal law, it need not be disclosed to anyone outside the scope of the privilege. In fact, disclosing privileged information to a third party may waive or destroy the privilege altogether.