Open meetings law is predicated on the belief that government derives its power from the people in order to act on their behalf. For the government to remain accountable to the people, its processes must remain accessible to them, and to the news media, the people’s watchdog.
To narrow the gap between governmental practices and the democratic ideal of government transparency, open meetings law requires public bodies with decision-making authority, such as agencies and commissions, to conduct their discussions, deliberations, and determinations in meetings open to the public and with advance notice. Some laws also include advisory public bodies such as panels and committees; some require that minutes be taken and published.
Most open meetings laws, like most freedom of information laws, were enacted over the past thirty-five years, often in response to public calls for reform following revelations of egregious instances of government abuse. A global study found that 68 nations had enacted some form of freedom of information law during this time period. There appears to be no similar study of nations with open meetings laws but, in general, there are far fewer of them.
Open meetings law presumes that government meetings are open to the public. The burden of proof therefore rests with the party seeking closure. However, the prerequisites for closure can be so vague that the government’s burden of proof becomes a negligible one. For example, the Constitution of Finland (1999) requires that plenary sessions of Parliament “are open to the public, unless the Parliament for a very weighty reason decides otherwise for a given matter.” In contrast, the Government in the Sunshine Act (US Congress 1976), which is the federal open meetings law of the United States, enumerates 10 circumstances that might justify an exemption. These range from national security matters to housekeeping materials. Nine of them also apply to determining whether the government will be exempt from producing particular documents sought under the 1966 US Freedom of Information Act.
Open meeting laws cover different levels and branches of government. The 1976 US federal law applies to about 50 federal public bodies whose members are appointed by the president with the advice and consent of the Senate. Each of the 50 states has also enacted a law that regulates meetings of its state bodies. The state statutes differ widely from each other in their scope and severity, and in the extent to which they specify open meetings regulations applicable to local government.
It has proved difficult to secure full compliance with open meetings law regardless of the level or branch of government to which the law applies or the specificity of its provisions. Generally, a meeting of a public body refers to a quorum of that body, gathered to consider government business. Yet reaching a consensus as to whether the word “meeting” or “public body” applied to particular circumstances was sometimes a protracted process even before the existence of teleconferences, chat rooms and email.
There is also little inducement for a reluctant public body to comply with the provisions of open meetings, laws many of which, like the Municipal Act of Ontario, Canada, lack meaningful penalties for noncompliance or contain penalties that have rarely been imposed.
The Municipal Act as amended in 2006 provides that from January 2008 municipalities are permitted but not required to appoint an investigator to explore allegations of open meetings law violations. The Act differs from Canadian federal law, which does not include open meetings law requirements. However, it is similar to many other open meetings laws in its failure to specify the process that will be used to determine whether there was noncompliance.
“Accessible transparent government goes far beyond just opening the doors to a meeting,” Ontario Information and Privacy Commissioner Ann Cavoukian and Assistant Commissioner Tom Mitchinson wrote of the deficiencies in Ontario’s Municipal Act. “The broader objective of transparency is to ensure that citizens understand how decisions are made and have an opportunity to participate in the decision-making process” (Cavoukian & Mitchinson 2003). To meet that objective, they say, a law must include an efficient, accessible system of oversight and enforcement, and a body to take and investigate public complaints and resolve disputes. In addition to requiring government to provide adequate advance notice of all meetings, government must be prohibited from conducting any business for which it did not provide such notice.
The short-term prognosis for a substantial increase in the number of nations with open meetings law is uncertain. International effort still appears focused on freedom of information laws – enacting them, strengthening them, and above all monitoring them and increasing compliance. Satisfactory implementation of freedom of information law is viewed as a prerequisite to promulgating open meetings law. For many of the 68 nations with freedom of information laws profiled in a global survey, satisfactory implementation appears a long way off. Bulgaria, for example, enacted the Access to Public Information Act in 2000. In 2004, an international monitoring body noted significant improvements in implementation over the prior year and recommended changes, including requiring open meetings of collective bodies. By June 2007, however, any thought of expanding access to proceedings had been supplanted by the need to rescue the 2000 statute from “the deliberate attempts to weaken a law that has operated for the benefit of its citizens.”
There may have been some movement toward open meetings law in the last several years. The Constitutional Court in South Korea ruled in 2000 that there was a constitutional right to attend plenary sessions of the National Assembly, and that the news media should be able to report on the sessions unimpeded. Prior to that ruling, statutory law generally left the decision of whether to open a meeting to the discretion of the Assembly members. No open meetings law has yet followed from the court’s 2000 ruling, but that does not preclude the possibility. It took nine years for a freedom of information statute (Act on Disclosure of Information by Public Agencies) to become effective after the Constitutional Court ruled in 1989 that the people of South Korea’s new democracy had a constitutional right to information.
Article 19 and other international human rights groups view open meetings as a vital part of freedom of information, which was declared to be a fundamental human right by the United Nations at its first session in 1946. In 2000, the UN Special Rapporteur and the Organization of American States (OAS) Special Rapporteur endorsed nine international standards established by Article 19 as underpinning freedom of information legislation. Standard 7 states that the law should establish a presumption that the public can attend all meetings of governing bodies.
- Banisar, D. (2006). Freedom of information around the world 2006: A global survey of access to government records laws. At http://www.freedominfo.org/documents/global_survey2006.pdf.
- Cavoukian, A., & Mitchinson, T. (2003). Making municipal government more accountable: The need for an open meetings law in Ontario. IPC Perspectives (October).
- Constitution of Finland (1999). ch. 4, sec. 50. At http://www.servat.unibe.ch/icl/fi00000_.html#S050_.
- Jabine, T. B., & Claude, R. P., (eds.) (1992). Human rights and statistics: Getting the record straight. Philadelpha, PA: University of Pennsylvania Press.
- Mendel, T. (2003). Freedom of information: an internationally protected human right. Comparative Media Law Journal, 1, 5 – 6, 20 –25.
- US Congress (1966). Freedom of Information Act, 5 U.S.C. sec. 552.
- US Congress (1976). Government in the Sunshine Act, 5 U.S.C. sec. 552b.
- Youm, K. (2002). Freedom of expression and the law. Stanford Journal of International Law, 38, 1– 11, 21.