Arizona Court of Appeals, Division Two, holds that the identities of executive session attendees are not confidential under Arizona’s open meeting law.

The plaintiff, while pursuing a federal lawsuit against the defendant, requested public records from an executive session of the defendant’s board of supervisors that had been noticed as concerning legal advice on that lawsuit. The defendant produced the public meeting records but withheld the executive session materials as confidential under A.R.S. § 38-431.03(B). The plaintiff sued, moved for partial summary judgment, and requested discovery. The superior court denied both motions.

Under Arizona’s open meeting law, confidentiality attaches only if the public body honors the scope of the notice. See § 38-431.03(E). When a plaintiff raises a reasonable inference that it did not, the burden shifts to the public body to justify the closed session. The plaintiff argued that he met that threshold here because the public session minutes identified an attorney who did not represent the defendant in the federal case, so the executive session must have addressed something beyond the noticed purpose.

The court of appeals affirmed the denial of summary judgment. The public session roll call listed county officials present at the meeting rather than participants in each agenda item, and a private attorney representing the defendant in the federal lawsuit would not have appeared on that roll call regardless. The absence of the federal-case attorney from the public minutes therefore said nothing about who attended the confidential executive session. Without a reasonable inference of a notice violation, the burden did not shift to the defendant.

The Court vacated the superior court’s ruling on one issue. The superior court treated the identities of executive session attendees as confidential under § 38-431.03(B), but the statute’s confidentiality provision extends only to “minutes” and “discussions.” Attendance is neither. The Court emphasized that the general rule under Arizona’s open meeting law is public transparency, with confidentiality limited to narrowly defined exceptions.

Judge O’Neil authored the opinion, joined by Judges Eckerstrom and Eppich.

Posted by: Allie Karpurk