Can a North Carolina county board hold a closed session to talk about which piece of land to buy for an industrial park?
Plain-English summary
A Salisbury attorney asked whether the North Carolina Open Meetings Law lets a county or city public body close a meeting to discuss buying land for an industrial park. The question was timely: in the 1994 session, the legislature had narrowed the Open Meetings Law's real-property exception, and the practical effects had not been clear.
The AG's answer was a qualified no. The siting and acquisition of land for an industrial park should normally happen in open session. A closed session is allowed only in two narrow circumstances:
- The public body needs to negotiate the price or other material terms of a specific real-property contract (N.C.G.S. § 143-318.11(a)(5), the 1994 replacement provision); or
- The public body needs to hear the site preferences of specific businesses that are considering locating or expanding in the jurisdiction (N.C.G.S. § 143-318.11(a)(4), the industrial-expansion provision).
What changed in 1994: before the amendment, the Open Meetings Law had two distinct executive-session authorizations. N.C.G.S. § 143-318.11(a)(1) authorized executive sessions to "consider the selection of a site or the acquisition of real property." N.C.G.S. § 143-318.11(a)(7) (renumbered (a)(4) in the 1994 rewrite) authorized executive sessions to discuss matters related to industrial expansion or business location. The 1994 session repealed the first authorization and replaced it with a much narrower provision, § 143-318.11(a)(5), which permits closed sessions only to discuss "the price or other material terms" of a proposed real-property contract that is actually being negotiated. The (a)(4) industrial-expansion provision survived unchanged.
The AG's interpretive bottom line: the (a)(4) industrial-expansion provision does not soak up the repealed general site-selection authority. The legislature meant to eliminate general site-selection closed sessions. So:
- A board's discussion of "which of several tracts to buy" must happen in open session.
- A board's discussion of "what price and terms to offer the seller of the tract we have chosen" can happen in closed session.
- A board's discussion of "which businesses are considering moving here and which sites they would prefer" can happen in closed session, but only as to the businesses' preferences, not the board's own preferences among the tracts.
- The board's own preferences for one site over another must always be discussed in open session.
The AG also noted that closed-session minutes are required and may be withheld only "so long as public inspection would frustrate the purpose of the closed session" under N.C.G.S. § 143-318.10(e). Once revelation of a business's site preference no longer jeopardizes the location or expansion, the preference must be revealed. The same standard applies under the Public Records Law, N.C.G.S. § 132-6.
Currency note
This opinion was issued in 1995. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The Open Meetings Law and the Public Records Law have been amended multiple times since 1995, and the closed-session authorizations have been renumbered and refined. The core principle (general site selection is open; price-and-terms negotiation is closed; business-specific preferences are closed only as to the business's preference) appears stable, but counsel must verify the current statutory text.
Historical context: what the AG concluded
The opinion is a careful read of the 1994 amendment and a guide to the practical compliance gray zone that the amendment created. The AG concluded:
The (a)(5) real-property closed-session authority is narrow. It covers negotiation of price and material terms. It does not cover general site selection among available tracts. Site selection now happens in open session unless tied to a specific business's confidential preferences under (a)(4).
The (a)(4) industrial-expansion authority is unchanged, but it does not cover general site selection. The provision still allows closed sessions to discuss businesses' interest in locating or expanding. But it only covers the business's preferences and the factors that might induce the business to choose the jurisdiction. The board's own preferences for one site over another must be discussed in open session. The location of a site or sites under consideration cannot be kept confidential.
Minutes of closed sessions are required and become public when secrecy no longer serves the purpose. The Open Meetings Law (§ 143-318.10(e)) and the Public Records Law (§ 132-6) both apply this rule. So a board cannot use a closed session to permanently shield site-selection deliberations from the public; eventually the minutes must be disclosed.
The AG used a concrete example to illustrate the line: "if a public body wishes to negotiate with a seller over which part of a larger tract it wants to purchase, it might discuss this in a closed session. However, the public body's discussion of which tract among several it might purchase is something that normally would not need to be negotiated, and thus would not be a proper subject for a closed session."
Common questions
Can a county board close a meeting to pick a site for an industrial park?
Not for the general "which tract among several" discussion. The board can close a meeting to negotiate the price and terms of a specific contract once a tract is chosen, or to hear from a specific business about which site that business would prefer.
What if the business asks for confidentiality before it commits?
The board can close the meeting to discuss the business's preferences and the factors that would induce the business to locate there. The location of the sites under consideration must still be revealed. And the board's own preferences for one site over another must still be discussed in open session.
Are closed-session minutes secret forever?
No. They can be withheld only "so long as public inspection would frustrate the purpose of the closed session" under N.C.G.S. § 143-318.10(e). Once the business has located (or decided not to), the minutes generally become public.
Did the 1994 amendment eliminate the old site-selection closed-session authority entirely?
Almost. The general site-selection authorization in former § 143-318.11(a)(1) was repealed and replaced with the narrower § 143-318.11(a)(5) (price-and-terms negotiation only). The industrial-expansion provision in former (a)(7), renumbered (a)(4), survived unchanged.
What about the Public Records Law for related documents?
N.C.G.S. § 132-6 has a parallel rule: records related to the proposed expansion or location of specific business or industrial projects may be withheld so long as their release would frustrate the purpose for which they were created. Once that purpose is served (or no longer at risk), the records become public.
Background and statutory framework
N.C.G.S. § 143-318.11 (Open Meetings Law closed-session authorizations). The 1994 amendment (1994 N.C. Sess. Laws ch. 570) made two structural changes relevant to this opinion: it repealed former § 143-318.11(a)(1) (general site selection / real property acquisition) and added new § 143-318.11(a)(5) (price-and-terms negotiation only). The industrial-expansion authorization formerly at (a)(7) was renumbered (a)(4) and kept its substantive coverage.
N.C.G.S. § 143-318.10(e) (closed-session minutes). Minutes of closed sessions must be kept and may be withheld only so long as public inspection would frustrate the purpose of the closed session.
N.C.G.S. § 132-6 (Public Records Law). Records related to the proposed expansion or location of specific business or industrial projects may be withheld so long as their release would frustrate the purpose for which they were created.
The opinion is signed by John R. McArthur (Chief Counsel) and is written under the direction of Wanda G. Bryant (Senior Deputy Attorney General for Citizens' Rights). The AG at the time was Michael F. Easley.
Citations
- N.C.G.S. §§ 143-318.10(e), 143-318.11(a)(1), 143-318.11(a)(4), 143-318.11(a)(5), 132-6.
- 1994 N.C. Sess. Laws ch. 570.
Source
- Landing page: https://ncdoj.gov/opinions/open-meetings-law-closed-meetings-to-discuss-acquisition-of-land-for-industrial-park/
Original opinion text
February 13, 1995
Mr. John L. Holshouser, Jr.
John L. Holshouser, Jr., & Assoc.
309 North Main Street
Salisbury, North Carolina 28144
RE: Advisory Opinion; Open Meetings Law; N.C.G.S. §143-318.11(a)(4) and (5); Closed Meetings to Discuss Acquisition of Land for Industrial Park.
Dear Mr. Holshouser:
You have asked for an opinion on whether the Open Meetings Law permits a closed session to discuss the acquisition of land for use as a county industrial park development.
Specifically, you noted that N.C.G.S. §143-318.11(a)(4) permits closed sessions for discussions related to the location or expansion of businesses or industries. You asked if the siting and acquisition of property for an industrial park may be discussed in a closed session to preserve the confidentiality of the preferences of certain businesses for particular sites.
For the reasons that follow, it is our opinion that the siting and acquisition of property for an industrial park ordinarily should be discussed in open session. However, a closed session may be held for the limited purpose of hearing specific businesses' preferences for particular sites, or if location of the park is a matter the public body needs to negotiate.
Prior to 1994, the Open Meetings Law authorized public bodies to hold executive sessions to consider the selection of a site or the acquisition of real property. N.C.G.S. §143-318.11(a)(1). Public bodies were also authorized to hold executive sessions to discuss matters related to the location or expansion of industries or other businesses. N.C.G.S. §143-318.11(a)(7).
The Open Meetings Law was amended in the 1994 legislative session. See, 1994 Sess. Laws Ch. 570. The provision permitting closed sessions (formerly "executive sessions") for discussions of industrial expansion was retained, unchanged, at N.C.G.S. §143-318.11(a)(4). However, the provision permitting closed sessions to consider real property site selection was repealed. It was replaced with a more limited provision, permitting only discussions about negotiating positions on the price or other material terms of proposed real property contracts. N.C.G.S. §143-318.11(a)(5).
We do not believe that the authority for closed session discussions on property site selection has been subsumed under the authority for closed session discussions on industrial expansion. The intent of the amendment was to eliminate the authority to hold closed sessions for general discussions on site selection.
The consequence of this change is that real property site selection may now only be discussed in a closed session if it is a matter over which the public body plans to negotiate with potential sellers. For example, if a public body wishes to negotiate with a seller over which part of a larger tract it wants to purchase, it might discuss this in a closed session. However, the public body's discussion of which tract among several it might purchase is something that normally would not need to be negotiated, and thus would not be a proper subject for a closed session.
Nevertheless, we recognize that a public body's decision concerning which site to select might be based, in part, on the preferences of businesses that may want to locate there. Some businesses may be willing to consider expansion or location within the jurisdiction only if their interests remain confidential while plans are being formulated and considered. In these circumstances, the names of businesses that are contemplating a move to the jurisdiction, and the factors that might induce those businesses to locate there, are proper subjects for closed sessions pursuant to Subsection (4) on closed sessions. We conclude, therefore, that a closed session may be held for the limited purpose of discussing which businesses prefer which sites. We caution that such a closed session may be held solely to discuss the preferences of particular businesses, and that the location of a site or sites under consideration by a public body may not be kept confidential.
We also caution that when the public body holds discussions concerning its own preferences for one site over another, such discussions must also be held in open session.
Also, even business preferences for particular sites must eventually be revealed. Public bodies are obligated to keep minutes of all closed sessions, including ones in which businesses' site preferences are discussed. These minutes may be withheld from public inspection only so long as public inspection would frustrate the purpose of the closed session. N.C.G.S. §143-318.10(e). Once revelation of businesses' site preferences would no longer jeopardize the expansion or location of the business within the jurisdiction, those preferences must be revealed. This is consistent with North Carolina's Public Records Law, which provides that records related to the proposed expansion or location of specific business or industrial projects may be withheld so long as their release would frustrate the purpose for which they were created. N.C.G.S. §132-6.
We trust that this responds fully to your request. If you have further questions, please do not hesitate to let us know.
John R. McArthur
Chief Counsel
Wanda G. Bryant
Senior Deputy Attorney General for Citizens' Rights