Q&A: Are executive sessions confidential?


The following questions came from the South Bend Tribune:

Q: South Bend’s school board is set to appoint a new member to replace someone who quit with two years left in his term. Last week, two members of the board told me they do not like the person the majority of the board chose in executive session for a variety of reasons.

Now I hear that a member of the majority may make a motion tonight to censure the two who talked to me for divulging information from an executive session. While they didn’t tell me the appointee’s name for the record, they did talk about the fact that the majority focused on wanting someone with a business, rather than educational, background, etc.

In Indiana, is it illegal for a board member to divulge information from an executive session?

A: There’s nothing illegal about the school board members speaking out on their disappointment with the consensus that was reached in the executive session.

I don’t see it as even inappropriate in this case because the vote on the school board candidate will be done in an open meeting where they again will have the opportunity to explain their vote.

There are cases where it would be inappropriate for a school board member to violate the confidentiality of an executive session discussion, and in a few rare cases it could be illegal.

For example, the state examiner of the Board of Accounts is reportedly seeking to have a criminal charge filed against an individual who violated the confidentiality of an exit interview between a Board of Accounts field examiner and the public agency. The audit is a confidential document until filed by the Board of Accounts.

In general, the answer to your question will depend on the circumstances.

If a governing body held a closed session in violation of the Open Door Law, you would not want members prohibited from revealing the violation.

On the other hand, if the governing body is receiving information about alleged misconduct of an employee but hasn’t determined yet whether the complaint has any basis, it would be unfair for a member to air the complaint, damaging the employee’s reputation before the complaint was substantiated.

Contact Steve Key, HSPA executive director and general counsel, with media law questions at skey@hspa.com or (317) 624-4427.