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> MSU Policy and Procedures > Open Meeting Policy
Open Meeting Policy
January 1986
TABLE OF CONTENTS
100.00 Preamble
200.00 Statement of Policy
300.00 Minutes of Meetings - Public Inspection
400.00 Guidelines to Assist Presiding Officers in Determining Whether to Open or
Close a Meeting under the Open Meeting Policy of Montana State University-Bozeman
410.00 Introduction
420.00 Guidelines
It is the policy of Montana State University-Bozeman that meetings of the
constituent membership of official University committees and boards shall be
open to the public. Montana State University-Bozeman recognizes that opportunity
for the public to observe the actions and deliberations of public agencies is
important to a free society. Montana State University-Bozeman, likewise,
recognizes that the right of privacy, constitutionally guaranteed to the
citizens of Montana, is fundamental to the well-being of both the individual and
society.
All meetings of the constituent membership of official Montana State
University-Bozeman committees and boards shall be open to the public, except
when the discussions or deliberations of these committees or bodies relate to a
matter of individual privacy and the demands of individual privacy clearly
exceed the merits of public disclosure.
The presumption in favor of openness shall be overcome whenever the closure
of a meeting is necessary to preserve the privacy interest of any person who is
the subject of such meeting or of any other person whose privacy interests will
be infringed by public conduct of the meeting, and the demands of individual
privacy clearly exceed the merit of public disclosure.
Prior to closing a meeting which would otherwise be open to the public under
this policy, the presiding officer shall first determine that (1) the discussion
relates to a matter of individual privacy, and (2) the demands of individual
privacy clearly exceed the merits of public disclosure.
The individual to which the privacy interest relates may waive his or her
right of privacy and, upon doing so, the meeting shall thereupon be open.
However, if more than one individual's privacy interests will be infringed by a
public meeting, the presiding officer shall consider each such individual
privacy interest separately before reaching a decision whether or not to close
the meeting. If any individual's privacy interest would be infringed by conduct
of an open meeting, and the protection of such interest clearly exceeds the
merits of public disclosure, the presiding officer shall close the meeting (or,
whenever practical, that portion of the meeting which relates to that individual
whose privacy interest would be infringed) unless that individual whose privacy
interest is involved expressly waives his or her right to privacy.
Appropriate minutes of all meetings required to be open by Montana State
University-Bozeman Open Meetings Policy shall be kept and shall, subject to the
obligation to protect the right of individual privacy, be available for
inspection by the public. Such minutes should include:
- Date, time, and place of meeting;
- A list of the members in attendance;
- The substance of all matters proposed, discussed, or decided; and
- At the request of any member, a record by individual members of any votes
taken.
The Montana State University-Bozeman Open Meeting Policy makes it the
duty of the chair or presiding officer of any meeting of the constituent
membership of any official University board, committee or sub-committee (see Section
2-3-203(4) M.C.A.) thereof to balance the public interest in observing
official public boards and committees with the interest of protecting individual
privacy.
Prior to closing a meeting subject to the University's Open Meeting
Policy, the presiding officer shall first determine that (1) the discussion
relates to a matter of individual privacy, and (2) the demands of individual
privacy clearly exceed the merits of public disclosure. It should be kept in
mind, however, that if an individual whose privacy may be violated during an
open meeting nonetheless affirmatively requests the meeting to be open (thereby
waiving his or her right of privacy), the presiding officer must open the
meeting unless some other individual's privacy interest requires the meeting to
be closed (see Section
2-3-203(2) M.C.A.). That is, the presiding officer must be sensitive to
the possibility that more than one individual's privacy may be violated by a
specific discussion; and that possibility must be taken into account in
determining whether or not to close a particular meeting.
- Section
2-3-203 (4) M.C.A.
- Section
2-3-203 (2) M.C.A.
Proper determination of whether a particular discussion will relate to a
matter of individual privacy requires identification of all individuals whose
privacy interest may be affected, as well as the nature of these particular
individual privacy interests. To assist in making this identification, it is
recommended that the presiding officer consider the following factors:
(1) Who are the individuals directly involved, or whose privacy interests
may otherwise be infringed, by disclosures or discussion at the meeting?
That is, determine the identity of those individuals who may be discussed
evaluated, identified, or compared during the particular meeting. In this
regard, consider the individual who is: (1)filing a claim, asserting a
grievance, or being evaluated; (2) responding to a claim, a grievance, or
evaluating another individual; or, (3) providing evidence regarding a claim, a
grievance, or an evaluation. Consideration should also be given to whether any
discussion or other presentation would disclose an individual's personal affairs
even though the individual is not the subject of the discussion; responding to a
claim, a grievance or evaluation; or providing evidence regarding a claim,
grievance or evaluation. Keep in mind that an individual's privacy interest may
be violated even though that individual is not the subject or focus of, or even
present at, the meeting.
(2) What is the status of the person invoking the privacy interest? A
high status position may increase the public's interest in, and therefore
"right to know" concerning a matter. Likewise, a low status position may
diminish the public's "right to know" and, therefore, its interest in disclosure
of personal matters when balanced against an assertion of a right of privacy.
Notwithstanding the foregoing, a high status position may, in fact, require
greater privacy protection from disclosure in order to garner candid discussions
and evaluations from subordinates and others regarding this high status
individual.
(3) What is the nature of each individual's privacy interest? Is it a
private, non-university-related matter of interest; or, does it bear upon an
official matter of public importance? The less related to the university
business, the greater the privacy interest may be, and vice versa.
(4) Has there been a waiver of the privacy interest? Is it a knowing
waiver? That is, did the individual waiving the right to privacy understand that
he or she could request the meeting be closed in order to protect his or her
right of privacy? It is recommended that the waiver be written and specific
regarding which matters the individual making the waiver no longer has an
expectation of privacy.
(5) Does the person whose privacy interests are at issue have a reasonable
expectation of privacy? Is the expectation of privacy generally recognized
as reasonable by society under the circumstances? Upon what basis is the
expectation premised (e.g., a contract, written policy, fundamental fairness)?
Was the information which might be disclosed received, or given, pursuant to a
promise of confidentiality?
(6) What public purposes would disclosure benefit? Would those
purposes necessarily be defeated by closing a portion or all of the meeting?
(7) What personally identifiable records, if any, might be disclosed?
Personnel records utilized during a meeting might inadvertently disclose private
information. The following types of records might be expected to disclose such
personal information:
- applications and resumes;
- educational and training records;
- hiring, promotion, tenure, transfer, and training selection records;
- supporting documentation for licenses and certifications;
- disciplinary records;
- performance records;
- employee requests for assistance with personal problems; and,
- termination documents and records
Unauthorized disclosure of the following information might generally be
considered to violate an individual's right of privacy:
- performance ratings;
- family and health conditions;
- employer criticisms of employees;
- employee criticisms of employers;
- subjective comments regarding performance of self and others, and an
individual's ability to work with others;
- interpersonal relationships;
- military service records
- IQ and other test or performance scores;
- prison records; and
- any other information which a reasonable person would expect to be able to
choose the time and place, if any, and the manner of disclosure regarding
personal attitudes, beliefs, behavior and opinions.
(8) Does the information which might be disclosed reveal personal
attitudes, beliefs, behavior, or other personal aspects of an individual's
life? If so, the privacy interest of the individual is generally considered
to be of the highest order; and, a request to close a meeting which might
disclose this type of information should be honored unless the presiding officer
reasonably believes that there is a compelling public interest justifying
disclosure.
(9) What is the forum for the meeting? Is the proceeding a formal,
adversarial setting in which there may be, generally, little expectation of
privacy? Or, is this a proceeding in which conciliation is the goal and candid
discussion requiring privacy is, therefore, paramount? To express this another
way: would premature publicity impede the highly desirable goal of conciliating
disputes?
Is this a fact-finding, investigatory proceeding in which candor is essential
and in which unsubstantiated allegations may be made? Will the proceeding make
provision for protecting an individual's privacy while permitting an appropriate
inquiry?
This issue of forum illustrates the interplay of these various factors
in deciding whether to close an otherwise open meeting. For example, the
expectation of privacy by the parties in Steps 1 & 2 of the Employee
Grievance Procedures (see MSU
Personnel & Procedures Manual, Sec. 810.50) might, in fact, be
greater than in a formal hearing by the Committee (see Faculty Handbook,
Sec. 1432.00) regarding faculty termination. The parties' privacy
expectation in the informal grievance process and the utility of affording the
parties an informal, non-public opportunity to resolve disputes would presumably
be recognized as reasonable by society. As a consequence, the public's right to
know details of a particular informal grievance process might be clearly
exceeded by the individual's expectation of privacy; in which case, the social
utility of this expectation of privacy might render it compelling under the
circumstances. By contrast, the public's right to know details of the status of
a tenured faculty member may, arguably, overcome the privacy rights of
the individuals involved in a particular Committee on Service proceeding.
(10) Is there a risk of statements being made in the meeting which would
injure the reputation, or otherwise defame, any individual? If so, are there
any safeguard which would protect against this possibility? University
committees are not judicial bodies and, therefore, do not have the authority to
restrain utterances or writings of individuals in a proceeding. Consequently, in
determining whether a meeting should be open or closed, the presiding officer
should be sensitive to the possibility that invasions of privacy or defamation's
of character, in both written complaints and oral testimony, may occur.
After considering the foregoing factors, the presiding officer must determine
whether, in his or her judgement, the privacy interest of any individual clearly
exceeds the merits of public disclosure. If the privacy interest is paramount,
then the meeting must be closed for the time during which the discussion relates
to this privacy interest. If the merits of public disclosure are paramount, then
the meeting should remain open to the public.
Once a decision is made whether to close the meeting, the presiding officer
should make a written record of the reasons for his or her decision. Although
all the factors discussed above will not necessarily be relevant to every case,
memorializing the presiding officer's decision, and the reasons therefore, on as
many of these factors as possible will assist review of the decision.
If the chair or presiding officer is unable to determine whether a meeting
should be closed or open, the meeting should be continued, or the matters on the
agenda which give rise to the privacy concern should be postponed until such
time as the matter can be resolved and the interests of individual privacy and
the public's right to know properly balanced.
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