How does a North Carolina public body legally go into closed session at a meeting, and what can it actually do once it's in there?
Plain-English summary
The Open Meetings Law (N.C.G.S. § 143-318.9 et seq.) gives NC public bodies a default of openness with a narrow set of authorized closed-session topics. This opinion is a step-by-step guide to using the closed-session mechanism properly. The bullet list of authorized closed-session purposes the opinion identifies:
- Preventing disclosure of privileged or confidential information
- Preventing premature disclosure of certain awards
- Consulting with the body's attorney to maintain the attorney-client privilege
- Discussing economic incentives
- Establishing negotiating strategies for employment contracts or real-property purchases
- Considering qualifications for employment, or hearing an employee grievance
- Discussing criminal investigations
- Formulating emergency-response plans (for local boards of education)
- Discussing public safety as it relates to potential terrorist activities
The procedural rules:
- Public motion in open session. A motion to enter closed session is made during the open meeting. The motion has to cite the specific statutory ground.
- Public vote. The body votes openly on the motion. Only if it passes can the body enter closed session, and only for the stated purpose.
- Confidentiality motions require a citation. If the basis is protecting confidential information, the motion must name the specific statute or law that protects the information. Without that, the motion cannot be entertained.
- Attorney-client motions require parties named. If the basis is attorney-client privilege about litigation, the motion has to identify the parties to the litigation. Without that, the motion cannot be entertained.
- Stay on topic. Once in closed session, the body can only discuss what the motion authorized. Motions to adjourn, recess, or enter a new closed session must happen in public.
- Future meeting logistics are public. Setting future meeting dates, times, and places must happen in open session.
- Reconvening a paused closed session requires public notice. If the body wants to recess and continue the closed session later, the public must be told the time and location.
- Minutes still required. The body must 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 a recording or written narrative. The minutes are public records, but inspection can be withheld so long as inspection would frustrate the closed-session 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.
The Open Meetings Law has been amended several times since 2005, and the list of authorized closed-session topics in § 143-318.11 has expanded and contracted. Anyone applying these rules today must check the current text of Article 33C of Chapter 143 and any controlling decisions of the NC appellate courts.
Common questions
Q: Can a public body go into closed session by simple majority?
A: Yes. The Open Meetings Law treats the motion to enter closed session like any other motion. The body's regular voting rule applies. The procedural requirements (statutory citation, naming of parties in attorney-client matters) are about the form of the motion, not the vote threshold.
Q: What if the public body slips into discussing something else once it's in closed session?
A: That is a violation of the Open Meetings Law. The body may only address the topic identified in the motion. If a different topic comes up, the body should adjourn the closed session, return to open session, and consider whether a new motion citing a different statutory ground is appropriate.
Q: Are closed-session minutes ever released?
A: They are public records. The body can withhold them from inspection only so long as inspection would frustrate the purpose of the closed session. Once the underlying matter is concluded (litigation ended, contract signed, etc.), the basis for withholding generally evaporates.
Q: Can the body lock the doors during a closed session?
A: The closed session is closed to public attendance by definition. The mechanics of how that is achieved (clearing the room, moving to another space) are up to the body, but the body is responsible for compliance with the Open Meetings Law.
Q: What's the penalty for an improper closed session?
A: The Open Meetings Law allows any person to seek a court order declaring that an action taken in violation of the Law is null and void, plus declaratory relief and reasonable attorneys' fees. The procedural rules in this opinion exist to keep public bodies out of that scenario.
Q: Does this apply to school boards, city councils, county commissions equally?
A: Yes. The Open Meetings Law applies to "public bodies" broadly, and the closed-session rules apply uniformly. Some authorized topics (emergency response for local boards of education) are specific to a body type.
Background and statutory framework
NC's Open Meetings Law is in Article 33C of Chapter 143. The statute starts from a presumption that public bodies must conduct business in public, with public notice and public minutes. Closed-session topics are listed in § 143-318.11, drawn narrowly because they are exceptions to the default openness rule.
The procedural rules in § 143-318.11(c) exist because the General Assembly did not want public bodies to use closed sessions casually. By requiring a public motion that cites a statutory ground and (for attorney-client and confidentiality matters) specifies additional information, the law forces the body and the public to know exactly what is being kept out of public view.
The minutes-requirement in § 143-318.10(e) is similarly designed: secret meetings without minutes would prevent any after-the-fact accountability. Minutes need not be detailed enough to defeat the purpose of the closed session, but they have to be specific enough that a non-attendee would understand what was discussed.
This guidance opinion fills a gap that the bare statute leaves: how does a board actually move into closed session in practice. The procedural rules in the opinion are the working drill for any NC public body.
Citations
- N.C.G.S. § 143-318.10 (public body, minutes)
- N.C.G.S. § 143-318.11 (authorized closed-session topics)
- N.C.G.S. § 143-318.11(c) (closed session motion procedure)
Source
- Landing page: https://ncdoj.gov/legal-services/archived-opinions/
Original opinion text
Note: the original opinion's date header, addressee, and opening framing were not preserved in the Sofya fetch. The text below reproduces what was preserved verbatim, which is the substantive closed-session procedural guidance.
The authorized topics for 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. Id. Similarly, as discussed below, 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. Id.
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. Id.
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." Id. This can be achieved through recording the meeting or through a written narrative. Id. 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.