Facts and Procedural History:

Vern C. Anderson asked for an advisory opinion regarding the Windemere Town Board of Supervisors’ (Board) conduct under the Open Meeting Law (OML), Minnesota Statutes, Chapter 13D. The Board’s legal counsel provided comments on its behalf.

Anderson provided a summary of the facts:

On February 13, 2020[,] township supervisors signed a contract with I.U.O.E.-Local 49….

In 2019, the Windemere township supervisors held several special/closed meetings. I submit below a list of three of the special/closed meetings and the circumstances of each. These special/closed meetings require prior public notice, as well as a statement at a prior open public meeting as to the purpose for the special/closed meeting, a recorded vote at a prior open meeting, and audio recordings of the subsequent special/closed meetings. The violation of Minnesota Statues 13D.03 comes to light when the supervisors refuse to make the audio recordings available to the public after the subject union contract has been signed.

On January 29, 2021, I made a formal request for the required audio recordings of three special/closed meetings…

As of this date, March 19, 2021, the township clerk and chairman have not responded to my January 29, 2021, request to make the audio recordings of the above listed special/closed meeting available.

Issue:

Discussion:

The OML requires meetings of public bodies to be open to the public, with limited exceptions. One exception is for meetings to consider strategy for labor negotiations. (Minnesota Statutes, section 13D.03.) The public body must record these closed meetings and the recordings “shall be preserved for two years after the contract is signed and shall be made available to the public after all labor contracts are signed by the governing body for the current budget period.” (Section 13D.03, subdivision 2.)

In its comments to the Commissioner, the Board wrote:

Minn. Stat.§ 13D.03, subd. 2(a) requires governmental bodies to tape-record the proceedings of a meeting closed to discuss labor negotiations, and subpart (b) requires that such recordings be made available to the public after the subject contract is signed. The Town is aware of five special meetings at which labor negotiations were discussed in closed session during 2019-2020. Those meetings were held on May 16, 2019, July 9, 2019, August 1, 2019, September 5, 2019, and January 2, 2020. The Town is in possession of tape-recordings of the August 1, 2019, September 5, 2019, and January 2, 2020, closed sessions. At its regular meeting in January 2020, the Town Board approved a motion to post these recordings to the Town's website. Though this was delayed, in part due to a newly elected, inexperienced Town Clerk, the recordings have been posted on the Town's website. The recordings are also accessible by the public by contacting the Town Clerk, who is in possession of the recordings and can set an appointment at which a member of the public can come to the Town Hall and listen to the recordings.

…

Based on the foregoing, it is clear the Town Board has complied with Minn. Stat.§ 13D.03, subd. 2(b) by voting in January 2020 to post all tape-recordings of closed meetings wherein labor negotiations were discussed on its website and subsequently posting said recordings to the public website. The Town Board cannot post tape-recordings it does not have.

Based on the record, it is unclear when the Board posted the recordings to its website. The Board signed the contract related to the closed meetings at issue in February of 2020. The Board stated that it voted at the January 2020 regular meeting to make the recordings available by posting them to its website and upon request to the town clerk. (The Commissioner notes that voting to make the recordings available does not satisfy the requirement to make the recordings available.) The Board further stated that access to the recordings through the website was delayed due to a change in personnel. A new town clerk started in January of 2021 – 11 months after the Board and the union signed the contract. Presumably, the recordings were not available on the website until after the new clerk started and posted them. Until the recordings were made available on the website, availability would have been by request only.

Anderson made his request for the recordings on January 29, 2021. He did not receive a response from the chair or the clerk. If Anderson made the request during the time when the recordings were not available on the website, the Board did not comply with the OML because it did not make the recordings available to the public. If the Board posted the recordings on the website prior to Anderson’s request, then the Board complied with the obligation to make the recordings available. (Anderson asked for access to the recordings for several meetings, one of which was November 13, 2019. However, that meeting seems to have been open to the public. The OML does not require public bodies to record public meetings.)

The Commissioner notes that the OML does not mandate how public bodies make recordings “available” to the public. Public bodies may decide how best to implement the requirement once the condition of section 13D.03, subd. 2 is met (i.e., all contracts are signed for the current budget period). Posting the recordings on a website or providing access upon request certainly satisfies the requirement.

The Board also indicated that it failed to record two meetings closed for labor negotiations in 2019 and 2020. Though those two meetings were not a part of Anderson’s request, the Commissioner reminds the Board that the OML requires public bodies to record closed meetings. The Town also has obligations under the Official Records Act, Minnesota Statutes, section 15.17 and the Records Management Statute, Minnesota Statutes, section 138.17, to create and maintain records that document its official business. Further, by failing to record these two meetings, the Board did not meet the requirements in Section 13D.03 to maintain the recordings for a minimum of two years and make them available to the public.

Finally, the Commissioner reiterates that non-metro townships’ obligations under the OML are critical because they are not “government entities” subject to the requirements of the Minnesota Government Data Practices Act (Minnesota Statutes, Chapter 13). The OML is one of the few mechanisms available to the public to obtain records from non-metro town governments. The Commissioner encourages all public bodies to provide meaningful access to information as mandated by the OML.

Opinion:

Based on the facts and information provided, the Commissioner’s opinion on the issue raised is as follows:

If the Windemere Town Board of Supervisors did not post the recordings of meetings closed for labor negotiations to its website, provide access on request, or otherwise make them available, it did not comply with Minnesota Statutes, section 13D.03, subd. 2(b).

If the Windemere Town Board of Supervisors posted the recordings to their website at the time of the request for recordings, it complied with Minnesota Statutes, section 13D.03, subd. 2(b) because the requested recordings were “available to the public.”

Signed:

Alice Roberts-Davis;
Commissioner

May 7, 2021