How must a North Carolina public body enter a closed session, and what records must it keep?

Plain-English summary

North Carolina's official legal-opinions directory identifies this guidance as “Open Government,” dated October 5, 2005.

The preserved closed-session section says a public body could enter closed session only while meeting in public. A member had to make a public motion that identified the legal provision authorizing closure, and the body had to vote on that motion. If the motion passed, the closed session could cover only the stated purpose.

After completing that purpose, the body had to reopen the meeting. The guidance said the body could not use the closed session to adjourn, recess, set another meeting's date or location, or move into a different closed-session topic. If the work was unfinished and the body wanted to continue later, it had to give public notice of the reconvened meeting's time and location.

The motion needed extra detail for two subjects. A confidentiality motion had to identify the statute or law protecting the information. A motion based on attorney-client privilege had to identify the parties to the litigation.

The body also had to keep a general account of the closed session, either by recording it or preparing a written narrative. The guidance described those records as public records that could be withheld only while disclosure would frustrate the closed session's purpose.

Currency note

This opinion was issued in 2005. 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.

Common questions

Can a North Carolina public body begin a closed session without first meeting in public?

No. The guidance said, “A public body can only enter into a closed session while it is meeting in public.” The motion and vote had to occur during the open session.

What had to be included in the motion to close the meeting?

The motion had to cite the legal provision authorizing the closed session. If confidentiality was the reason, it also had to identify the statute or law protecting the information. If attorney-client privilege was the reason, it had to identify the parties to the litigation.

Could the body adjourn or schedule another meeting while still in closed session?

No. The guidance said motions to adjourn or recess and decisions setting future meeting dates, times, or locations had to occur in open session.

What record of the closed session was required?

The body had to keep a general account sufficient to give a person who was not present a reasonable understanding of what occurred. A recording or written narrative could satisfy that requirement.

Background and statutory framework

The preserved guidance quotes section 143-318.10(e) for the closed-session record requirement and cites section 143-318.11(c) for the procedure used to enter the session.

Citations

• N.C.G.S. § 143-318.10(e)
• N.C.G.S. § 143-318.11(c)

Source

• Landing page: https://ncdoj.gov/legal-services/archived-opinions/
• Opinion page: https://ncdoj.gov/opinions/open-government/

Original opinion text

Grounds for entering closed session include:

• Preventing the disclosure of privileged or confidential information
• Preventing the premature disclosure of certain awards
• Consulting with the public body's attorney in order to maintain the attorney-client privilege
• Discussing economic incentives
• Establishing negotiating strategies for terms of employment contracts or the purchase of real property
• Consideration of qualifications for employment of an employee or applicant, or hearing a grievance
• Discussions surrounding criminal investigations
• Formulating plans for emergency responses by local boards of education
• Discussions regarding public safety as it relates to potential terrorist activities

A public body can only enter into a closed session while it is meeting in public. To go into a closed session, a motion to do so must be made during an open session. The motion, made in public, must specifically cite the provision under the law that provides the basis for entering into the closed session. So for example if a public body intends to discuss the award of an honorary degree to certain individuals it must do so in public unless a member of the public body makes a motion to go into closed session. The public body must vote on the motion and if the motion carries the body can enter into a closed session for that limited purpose and no other. N.C.G.S. §143-318.11(c)

Once the purpose of entering into the closed session is completed, the public body must then re-open the meeting. During the closed session, the public body cannot engage in any other activities that are not related to the stated basis for the motion to enter into the closed session. Motions to adjourn or recess are not permissible activities that can take place in a closed session. Motions to enter into a closed session for some other purpose are not permissible activities that can take place in a closed session. Establishing future meeting dates or times and places for reconvening meetings are not authorized activities that can take place in a closed session. These activities must take place in an open session. Only those limited activities enumerated by statute and identified in a valid public motion that passes can take place in a closed session. All other activities must take place in public. Similarly, if the activities for which the closed session was entered into are not complete and the public body wishes to recess and continue the closed session at a later time, the public body must give public notice of that decision including the time and location for the reconvened meeting.

Some motions to close a session must include additional information to be validly acted on. Specifically, if the reason to go into a closed session is to protect confidential information, the motion must cite the specific statute or law that protects the information from public disclosure. Without such information, the public body cannot entertain the motion.

If the reason to go into closed session is to protect the attorney-client privilege, the motion must identify the parties to the litigation that is to be discussed. Without such information, the public body cannot entertain the motion.

Finally, while in a closed session, the public body must still maintain full and accurate minutes of the session. N.C.G.S. §143-318.10(e). "When a public body meets in closed session, it shall keep a general account of the closed session so that a person not in attendance would have a reasonable understanding of what transpired." This can be achieved through recording the meeting or through a written narrative. These recordings or narratives are public records but may be withheld from public inspection so long as inspection would frustrate the purpose of the closed session.