When and how can a NC public body go into closed session, and what records of that closed session must be kept?

Plain-English summary

The NCDOJ open-government page summarizes the procedures and limits for a public body to enter and conduct a closed session under the NC Open Meetings Law.

The grounds for closing a session are enumerated in N.C.G.S. § 143-318.11. The categories include:

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

The procedural rules are tight. A public body can only enter a closed session from within an open meeting. The motion to close must be made in public and must specifically cite the statutory provision providing the basis. The body must vote on the motion. Only if the motion passes can the body enter closed session, and only for the limited purpose stated.

Once the closed-session purpose is completed, the body must re-open. The body cannot do other business in closed session: no motion to adjourn or recess, no motion to enter closed session for a different purpose, no setting of future meeting dates or reconvening times. Those must happen in open session. If the closed-session activities are not complete and the body wants to recess and continue closed session later, the body must give public notice of the decision, the time, and the location for the reconvened meeting.

Some closed-session motions require extra content. To protect confidential information, the motion must cite the specific statute or law that protects the information from public disclosure. Without that citation, the motion is not properly before the body. For attorney-client privilege, the motion must identify the parties to the litigation being discussed.

Closed-session minutes are mandatory. Under § 143-318.10(e), the public 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." Recording or a written narrative both work. The recordings or narratives are public records. They may be withheld from public inspection only as long as inspection would frustrate the purpose of the closed session.

Currency note

This guidance was published circa 2010. 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 NC Open Meetings Law has been amended a number of times since 2010, and the categories of permissible closed sessions have shifted. Anyone advising a public body on a current closed-session question should check the current version of § 143-318.11 and recent NC appellate cases.

Common questions

Q: Can a public body just decide in advance to meet in closed session?
A: No. The closed session must be entered from within an open meeting, by a motion that passes after a vote. There is no shortcut into closed session.

Q: What must the motion to close include?
A: The statutory provision authorizing the closed session. If the basis is confidentiality, the motion must cite the specific statute or law protecting the information. If the basis is attorney-client privilege, the motion must identify the parties to the litigation.

Q: Can a body adjourn from within a closed session?
A: No. Motions to adjourn, recess, set future meeting times, or close again for a different purpose must happen in open session.

Q: Are closed-session minutes public?
A: Yes, they are public records. They may be withheld from inspection only while inspection would frustrate the purpose of the closed session. Once that purpose no longer requires confidentiality (for example, after a real estate transaction closes), the minutes generally become available.

Background and statutory framework

The two operative statutes:

• N.C.G.S. § 143-318.11. Enumerates the grounds for closed session and sets the procedural rules in subsection (c).
• N.C.G.S. § 143-318.10(e). Requires general-account minutes of closed sessions and treats them as public records subject to a frustration-of-purpose exemption.

The framework is designed to keep closed sessions narrow. The default is open meetings. Closure is a procedural exception, available only on specified grounds, only after a public motion citing the specific ground, only for the duration of that purpose. The audit trail (minutes, eventual disclosure) preserves accountability even when the meeting itself is private.

The NCDOJ page reproduced here is part of the AG's open-government guidance, intended for the broad audience of NC public officials and citizens trying to understand how the Open Meetings Law works in practice.

Citations

• N.C.G.S. § 143-318.10(e) (closed-session minutes requirement)
• N.C.G.S. § 143-318.11 (grounds for closed session)
• N.C.G.S. § 143-318.11(c) (closed-session procedural requirements)

Source

• Landing page: https://ncdoj.gov/opinions/open-government/

Original opinion text

Best-effort excerpt from the NCDOJ open-government guidance page. The page combines AG guidance on multiple Open Meetings Law topics; this excerpt covers the closed-session procedures section.

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.