As we’ve noted in the past, some of the more interesting opinions issued by the Public Access Counselor (PAC) that often provide helpful guidance to public bodies are the advisory/non-binding ones.
In 2017, the PAC issued an advisory opinion (2017 PAC 46034) finding a public body in violation of the OMA for discussing certain improper topics in closed session. However, in a portion of this PAC opinion, the PAC determined that the “litigation exception” of 2(c)(11) of the OMA allows a public body to enter closed session to discuss strategies for responding to a PAC request for review. The PAC determined that a PAC request for review “constituted litigation pending before an administrative tribunal” (being the PAC office) so the public body could go into closed session to discuss the “strategies, posture, theories, and consequences of the litigation itself.” The PAC noted that this exception can only be cited and used during the initial 60 day period within which the PAC can issue a binding opinion and cautioned that the exception does not extend to a public body’s discussions about compliance with the OMA generally.
In sum, the PAC acknowledged in this advisory opinion that a public body that is the subject of a PAC request for review can use the “litigation exception” of the OMA to discuss the request for review in closed session so long as that discussion takes place within the initial 60 day period after the request for review has been filed and is limited in scope.