From the Hotline

By Teri Henning
Pennsylvania Newspaper Association

Q: Does an agency have to follow any special procedure before it can call an executive session? What does it have to tell the public about the executive session? Does it have to keep minutes of that session?

A: The Sunshine Act doesn't impose specific requirements on "how" an agency calls an executive session or decides to go into executive session. In some cases, it requires an agency to provide 24 hours notice to all agency members. It also requires an agency to announce publicly the reason for holding an executive session. This announcement must be made at the public meeting just prior to the executive session or at the public meeting just following the executive session. 

In making this public announcement, the agency must provide the specific reasons for holding the executive session. It is not enough to say “personnel” or “litigation.” See Reading Eagle v. City of Reading, 627 A.2d 304 (Pa. Cmwlth. 1993). There, the Court explained that "the reasons stated by the public agency must be specific, indicating a real, discrete matter that is best addressed in private." If this were not the case, the public would have no way to determine if it is properly being excluded from an executive session and no meaningful ability to challenge the exclusion. 

Finally, there is no requirement that an agency keep minutes of an executive session. The Sunshine Act does not prohibit members from keeping notes of the meetings, though. Nor does it prohibit them from releasing those notes publicly. In rare circumstances, there may be some other law that would prohibit the release of "executive session" information, such as laws protecting student information. Generally speaking, though, agency members are free to talk publicly about the matters they discuss in executive session. If a court found that the agency violated the Sunshine Act by going into an unlawful executive session, the court could order the agency to turn over any notes taken in that executive session.

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