Texas Attorney General Opinion: LO98-033 Page: 2 of 3
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The Honorable Michael J. Guarino - Page 2 (L098-033)
(3) may grant legal or equitable relief it considers appropriate,
including an order that the governmental body make available to the
public the certified agenda or tape of any part of a meeting that was
required to be open under this chapter.
(c) The certified agenda or tape of a closed meeting is available for public
inspection and copying only under a court order issued under Subsection
(b)(3).
Your question is apparently prompted by a concern about the effect of Attorney General Opinion
DM-227, in which we said that neither the Open Meetings Act nor the Open Records Act "precludes
a member of a governmental body from reviewing the certified agenda or tape recording of a closed
meeting in which the member had participated." Attorney General Opinion DM-227 (1993) at 2.
The opinion noted that such a limited review did not constitute a release to the public, and that,
therefore, it would not contravene the provisions of section 551.104. It held, however, that:
Given the purpose of the certified agenda or tape recording, and given the
governmental body's statutory duty to preserve the certified agenda or tape
recording as evidence in the event of litigation, we believe that each
governmental body is authorized to decide for itself whether to permit a
member who has participated in a closed meeting to review the certified
agenda or tape recording of that meeting as well as the procedure for allowing
such a review.
Id. at 2.
In our opinion, the conclusion of Attomey General Opinion DM-227 is sound. As this office
observed in Attorney General Opinion JM-119, a member of a governmental body cannot discharge
his official duties unless he has complete access to the records maintained by the governmental body.
Attorney General Opinion JM-1 19 (1983) at 3. But a right of access does not foreordain a right of
unlimited copying, and in our opinion, the Open Meetings Act precludes it.
Few items under the control of a governmental body are hedged about with such statutory
deference as the certified agenda/tape recording of an executive session.' It is specifically required
to be "preserved" for at least two years, and it may be made available to the public only under court
order. Section 551.104 itself seems to contemplate but a single copy: "A governmental body shall
preserve the certified agenda or tape recording of a closed meeting." (Emphasis added). Further-
more, were a governmental body to permit one board member to copy the recording, it could hardly
deny any member the right to do so, and the risk of unauthorized release may be expected to increase
'Section 551.146 of the Government Code makes it a class B misdemeanor to knowingly disclose to the public
the contents of a certified agenda or tape recording of an executive session and fixes civil liability on the discloser to
any person injured by the disclosure.
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Texas. Attorney-General's Office. Texas Attorney General Opinion: LO98-033, text, March 31, 1998; (https://texashistory.unt.edu/ark:/67531/metapth277329/m1/2/: accessed July 18, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu.; crediting UNT Libraries Government Documents Department.