Minnesota Open Meeting Law

By Chelsea Griffin, chelsea.griffin@house.mn.gov

Minnesota Open Meeting

Law

July 2024

The Minnesota Open Meeting Law requires that meetings of governmental bodies

generally be open to the public. This publication discusses the groups and types of

meetings covered by the open meeting law (page 2), and then reviews the requirements

of (page 6) and exceptions to the law (page 10), the penalties for its violation (page 14),

and sources of advice (page 15).

Executive Summary

The Minnesota Open Meeting Law was originally enacted in Laws 1957, chapter 773, section

1. It is now codified in Minnesota Statutes, chapter 13D. The Minnesota Supreme Court has

articulated three purposes of the open meeting law:

 To prohibit actions being taken at a secret meeting where it is impossible for the

interested public to become fully informed about a public board’s decisions or to

detect improper influences

 To assure the public’s right to be informed

 To afford the public an opportunity to present its views to the public body

“These purposes are deeply rooted in the fundamental proposition that a well-informed

populace is essential to the vitality of our democratic form of government.”

Courts interpret

the law liberally and in favor of openness.

Entities covered by the law. The law applies to state and local multimember governmental

bodies, including committees and subcommittees, and nonprofits created by political

subdivisions. A separate law applies to the legislature.

Situations where the law applies. A meeting is a “meeting” for purposes of the law when a

quorum or more of the governmental body is gathered—in person or by interactive

Prior Lake American v. Mader, 642 N.W.2d 729, 735 (Minn. 2002) (en banc) (citing St. Cloud Newspapers, Inc. v.

District 742 Community Schools, 332 N.W.2d 1, 4 (Minn. 1983)). While the courts consistently say that the open

meeting law is to afford the public an opportunity to present its views to the public body, there is no general

right for members of the public to speak at a meeting. Some statutes, and perhaps some home rule charters,

specify that a hearing on a particular matter must be held at which anyone who wishes to address the public

body may do so. See, e.g., Minn. Stat. § 117.0412, subd. 2.

Prior Lake American, 642 N.W.2d at 735.

Minn. Stat. § 3.055.

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technology, whether or not action is taken or contemplated. The open meeting law does not

address whether the governmental body must keep or publish meeting minutes, hold a

meeting for a particular purpose, or allow members of the public to address the body. For

any particular governmental body, there may be other laws or charter provisions that

address those topics.

What constitutes an open meeting. A meeting is open when proper notice was given in

advance of the meeting, the public may attend and observe, and relevant materials are

available to the public.

Exceptions to the law. A meeting may be closed based on a limited attorney-client privilege,

and for the purposes of discussing labor negotiations strategy, evaluating employees, and

discussing security issues and property transactions. The law does not apply to a

governmental body exercising quasi-judicial functions involving disciplinary proceedings.

Violations of the law. While actions taken at a meeting held in violation of the law are still

valid, the law provides for penalties and potentially removal from office.

Where to get advice. A governmental entity can seek advice from its attorney, the

Minnesota Attorney General, or the Commissioner of Administration. An individual may seek

advice from a private attorney or the Commissioner of Administration.

Groups and Meetings Governed by the Open Meeting

Law

The law applies to all levels of state and local government.

The open meeting law applies to:

 a state agency, board, commission, or department when it is required or permitted

by law to transact public business in a meeting;

 the governing body of any school district, unorganized territory, county, city, town,

or other public body;

 a committee, subcommittee, board, department, or commission of a public body

subject to the law; and

 the governing body or a committee of a statewide or local public pension plan.

Minn. Stat. § 13D.01, subd. 1.

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“Public body” is not defined but the Minnesota Supreme Court has stated that “[i]n common

understanding, ‘public body’ is possibly the broadest expression for the category of

governmental entities that perform functions for the public benefit.”

In determining whether the open meeting law applies to a particular entity, one should look at

all of the entity’s characteristics. For example, in a 1998 case, the Minnesota Supreme Court

held that because the statute authorizing creation of a municipal power agency authorized an

agency to conduct its affairs as a private corporation, it could hold closed meetings.

The court

held so notwithstanding the statute that provides for municipal power agencies to be political

subdivisions of the state.

The law generally applies to nonprofit corporations created by governmental

entities.

The list of groups covered by the open meeting law does not refer to nonprofit corporations

created by a governmental entity. However, the law creating a specific public nonprofit

corporation may specify that it is subject to the open meeting law.

In addition, any corporation

created by a political subdivision before May 31, 1997, is clearly subject to the open meeting

law.

Gatherings of less than a quorum of a public body are not subject to the law; a

“meeting” is held when the group is capable of exercising decision-making

powers.

The Minnesota Supreme Court has held that the open meeting law applies only to a quorum or

more of members of the governing body or a committee, subcommittee, board, department, or

commission of the governing body.

Serial meetings in groups of less than a quorum held in

Star Tribune Co. v. University of Minnesota Board of Regents, 683 N.W.2d 274, 280-282 (Minn. 2004) (en banc).

Southern Minn. Mun. Power Agency v. Boyne, 578 N.W.2d 362, 364 (Minn. 1998) (en banc) (citing Minn. Stat. §

453.54, subd. 21, and discussing the factors that distinguish a public corporation from a private corporation). See

also Minnesota Joint Underwriting Ass’n v. Star Tribune Media Co., 862 N.W.2d 62, 65 (Minn. 2015) (discussing

Boyne; stating whether a particular entity is a “government entity” under the Data Practices Act is a question of

law subject to the court’s de novo review).

Minn. Stat. § 453.53, subd. 1, para. (b), cl. (1) (The agency agreement shall state: “(1) That the municipal power

agency is created and incorporated . . . as a municipal corporation and a political subdivision of the state, to

exercise thereunder a part of the sovereign powers of the state;”).

E.g., Minn. Stat. §§ 62Q.03, subd. 6 (Minnesota Risk Adjustment Association); 85B.02, subd. 6 (Lake Superior

Center Authority); 116V.01, subd. 10 (Agricultural Utilization Research Institute); 124D.385, subd. 4 (Minnesota

Commission on National and Community Service may create a nonprofit but it is subject to the open meeting

law); and 128C.22 (State High School League).

Minn. Stat. § 465.719, subd. 9.

Moberg v. Independent School Dist. No. 281, 336 N.W.2d 510 (Minn. 1983) (en banc).

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order to avoid open meeting law requirements may also be found to be a violation, depending

on the facts of the case.

A public body subject to the law should be cautious about using e-mail to communicate with

other members of the body. Although the statute does not specifically address the use of e-

mail, it is likely that the court would analyze use of e-mail in the same way as it has telephone

conversations and letters.

That is, private communication about official business through

telephone conversations or letters by a quorum of a public body subject to the law would

violate the law.

Serial communication through telephone conversations or letters by less than a quorum with

the intent to avoid a public hearing or to come to an agreement on an issue relating to official

business could also violate the law. In a 1993 case, the Minnesota Court of Appeals held that

the open meeting law was not violated when two of five city council members attended private

mediation sessions related to city business. The court determined that the two council

members did not constitute a committee or subcommittee of the council because the group

was not capable of exercising decision-making powers.

The law applies to informational meetings.

The Minnesota Supreme Court has held that the open meeting law applies to all gatherings of

members of a governing body, whether or not action is taken or contemplated. This means that

a gathering of members of a public body for an informational seminar on matters currently

facing the body or that might come before the body must be conducted openly.

However,

Id. at 518; see also Mankato Free Press Co. v. City of North Mankato, 563 N.W.2d 291, 295 (Minn. App. 1997). On

remand to the district court for a factual finding on whether the city used serial interviews to avoid the open

meeting law, the trial court found, and the court of appeals affirmed, that the serial meetings were not held to

avoid the law. Mankato Free Press Co. v. City of North Mankato, No. C9-98-677, 1998 WL 865714 (Minn. App.

1998) (unpublished opinion), review denied (Minn. Feb. 24, 1999).

Moberg, 336 N.W.2d at 518. The Commissioner of Administration stated in a July 9, 2008, opinion that an e-mail

sent to all members of a city council by the city manager was effectively “printed material” that should be

available to members of the public and also suggested that the legislature revise the statute to recognize the use

of electronic and other types of communications. Minn. Dept. of Admin. Advisory Op. 08-015. A September 8,

2009, opinion by the commissioner states that the exchange of e-mails by staff and members of the Metro Gang

Strike Force Advisory Board violated the open meeting law because it was not just a matter of a quorum receiving

information, but a quorum of the body discussing and then giving the staff person direction on the action to take.

Minn. Dept. of Admin. Advisory Op. 09-020. In June 2017, the Commissioner of Administration issued an opinion

that a letter signed by a quorum of a school board that was sent without public notice, or discussion and decision

on the substance of the letter in an open meeting violated the law. The school board said one member drafted it,

sent it to the superintendent, who made minor revisions, placed it on letterhead, and then sent it to the other

members to sign. The board asserted it did not discuss or take action on it. The commissioner however found

that unlikely. “The Board’s assertion that it did not discuss, decide, or take action on the contents of the letter or

sending the letter is not plausible based on the very existence of the letter purporting to be from “the Board” and

bearing the signatures of a quorum of members of the Board.” Minn. Dept. of Admin. Advisory Op. 17-005

(Eveleth-Gilbert Public Schools, I.S.D. No. 2154, and a letter sent to the IRRRB).

Sovereign v. Dunn, 498 N.W.2d 62 (Minn. App. 1993), review denied (Minn. May 28, 1993).

St. Cloud Newspapers, Inc., 332 N.W.2d 1.

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there are some exceptions. A 1975 attorney general opinion stated that city council attendance

at a League of Minnesota Cities training program for city officials did not violate the open

meeting law if the members did not discuss specific municipal business.

The statute governing

the Lessard-Sams Outdoor Heritage Council allows members of the council to travel together to

visit sites and learn about projects without it being a violation of the law as long as the

members do not decide, or agree to decide, matters under the council’s jurisdiction.

The law does not cover chance or social gatherings.

The open meeting law does not apply to chance or social gatherings of members of a public

body.

However, a quorum of a public body may not, as a group, discuss or receive information

on official business in any setting under the guise of a private social gathering.

The law does not apply to certain types of advisory groups.

The Minnesota Court of Appeals has held that the open meeting law does not apply to certain

types of advisory groups.

In that case, a presidential search advisory committee to the

University of Minnesota Board of Regents was held not to be a committee of the governing

body for purposes of the open meeting law. In reaching its holding, the court pointed out that

no regents were on the search committee and that the committee had no power to set policy

or make a final decision. It is not clear if a court would reach the same result if members of the

governing body were also on the advisory committee. Depending on the number of members

of the governing body involved and on the form or extent of the delegation of authority from

the governing body to the members, a court might consider the advisory committee to be a

committee of the governing body.

A separate law applies to the legislature.

In 1990, the legislature passed a law separate from the open meeting law that requires all

legislative meetings be open to the public.

The law applies to House and Senate floor sessions

and to meetings of committees, subcommittees, conference committees, and legislative

commissions. For purposes of this law, a meeting occurs when a quorum is present and action

is taken regarding a matter within the jurisdiction of the group. Each house of the legislature

must adopt rules to implement these requirements. Remedies provided under these rules are

the exclusive means of enforcing this law.

Op. Att’y Gen. 63a-5, Feb. 5, 1975.

Minn. Stat. § 97A.056, subd. 5, para. (b), provides “Travel to and from scheduled and publicly noticed site visits

by council members for the purposes of receiving information is not a violation of paragraph (a). Any decision or

agreement to make a decision during the travel is a violation of paragraph (a).”

St. Cloud Newspapers, Inc., 332 N.W.2d at 7.

Moberg, 336 N.W.2d at 518.

The Minnesota Daily v. University of Minnesota, 432 N.W.2d 189 (Minn. App. 1988).

Minn. Stat. § 3.055.

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Hybrid groups—those made up of both legislators and nonlegislators—may have different open

meeting law requirements. The Legislative-Citizen Commission on Minnesota Resources is

subject to Minnesota Statutes, chapter 13D, except that a meeting only occurs when a quorum

is present and action is taken, similar to the legislative open meeting law.

In contrast, the

Lessard-Sams Outdoor Heritage Council, which also has both legislators and nonlegislators on it,

is subject to chapter 13D, and a meeting occurs when a quorum is present whether or not

action is taken.

Requirements of the Open Meeting Law

Generally

Meetings must be open to the public.

The law also requires that votes in open meetings be recorded in a journal or minutes and that

the journal or minutes used to record votes of a meeting be open to the public.

The vote of

each member must be recorded on appropriations of money, except for payments of

judgments and claims and amounts fixed by statute.

A straw ballot to narrow the list of

candidates for city administrator and not made public was held to be a secret vote in violation

of the open meeting law, particularly in light of the fact that the straw vote was acted on and

given the same effect as an official act.

Open meetings must be held in a public place within the borders of the public body.

Meetings

may also be held by interactive technology if specified conditions are met to ensure openness

Minn. Stat. § 116P.08, subd. 5, “(a) Meetings of the commission, committees, or subcommittees of the

commission, technical advisory committees, and peer reviewers must be open to the public and are subject to

chapter 13D. The commission shall attempt to meet throughout various regions of the state during each

biennium. For purposes of this subdivision, a meeting occurs when a quorum is present and action is taken

regarding a matter within the jurisdiction of the commission, a committee or subcommittee of the commission, a

technical advisory committee, or peer reviewers.

(b) For legislative members of the commission, enforcement of this subdivision is governed by section 3.055,

subdivision 2. For nonlegislative members of the commission, enforcement of this subdivision is governed by

section 13D.06, subdivisions 1 and 2.” (emphasis added).

Minn. Stat. § 97A.056, subd. 5.

Minn. Stat. § 13D.01, subds. 4 and 5. See also Minn. Dept. of Admin. Advisory Op. 22-002, finding that a town

that did not keep regular hours where town records were kept did not provide appropriate access to the voting

records when it directed an individual who requested review of the township journals to the meeting minutes

posted on the town’s website, which documented the voting record.

Minn. Stat. § 13D.01, subd. 4.

Mankato Free Press Co., 563 N.W.2d at 295-96. In contrast, the Commissioner of Administration issued an

advisory opinion finding that a secret straw ballot taken and its results described and discussed at the same

meeting as the ballot was not a violation. Minn. Dept. of Admin. Advisory Op. 10-011.

Quast v. Knutson, 276 Minn. 340, 341, 150 N.W.2d 199, 200 (1967) (school board meeting held 20 miles outside

the jurisdiction of the school board at a private office did not comply with open meeting law; consolidation

proceedings were fatally defective because the resolution by which the proceedings were initiated was not

adopted at a public meeting as required by law). The legislature may provide exceptions to this geographic

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and accessibility for those who wish to attend.

Please see the section in this publication on

meetings by interactive technology for further information.

Public bodies must give notice of their meetings.

In 1974, the Minnesota Supreme Court held that failure to give notice of a meeting is a violation

of the open meeting law.

The court has also held that it is a violation of the open meeting law

to conduct business before the time publicly announced for a meeting.

In 1987, the legislature spelled out the notice requirements in statute for regular, special,

emergency, and closed meetings. Public bodies must do the following:

 Keep schedules of regular meetings on file at their offices.

 Post written notice of the date, time, place, and purpose of the special meetings

(meetings held at a time or place different from regular meetings) on their principal

bulletin board or on the door of the usual meeting room if the public body does not

have a principal bulletin board. The public body must also either mail notice to

people who have requested such mailings, or publish notice in the official

newspaper, at least three days before the meetings.

 Make good faith efforts to notify news media that have filed written requests (with

telephone numbers) for notice of emergency meetings (special meetings called

because of circumstances that require immediate consideration).

The same notice requirements apply to closed meetings.

Absent any other specific law governing notice by a state agency, a state agency required or

permitted by law to transact public business in a meeting satisfies notice requirements if it

publishes notice in the State Register or posts notice on the agency’s website. In addition, a

requirement. See, e.g., Laws 2014, chapter 272, article 3, section 54 (authorizing the school board of

Independent School District No. 2142, St. Louis County, to hold its meetings at the district’s administrative office

or at a convenient location for school board members and district residents outside of the school district

boundaries if notice requirements are met).

Minn. Stat. §§ 13D.015, 13D.02, 13D.021.

Sullivan v. Credit River Township, 299 Minn. 170, 217 N.W.2d 502 (1974).

Merz v. Leitch, 342 N.W.2d 141, 145 (Minn. 1984) (en banc).

Minn. Stat. § 13D.04, subd. 1.

Minn. Stat. § 13D.04, subd. 2; Rupp v. Mayasich, 533 N.W.2d 893 (Minn. App. 1995) (bulletin board must be

reasonably accessible to the public). A February 3, 2004, advisory opinion by the Commissioner of Administration

stated that a public body’s actions at a special meeting are limited to those topics included in the notice of special

meeting. Minn. Dept. of Admin. Advisory Op. 04-004.

Minn. Stat. § 13D.04, subd. 3.

Minn. Stat. § 13D.04, subd. 5.

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schedule of the regular meetings must be kept on file at the primary offices or posted on the

agency’s website.

Relevant materials must be publicly available.

The open meeting law requires that for open meetings, at least one copy of any printed

material prepared by the public body and distributed or available to all members of the public

body also be available in the meeting room for inspection by the public. This requirement does

not apply to materials that are classified as other than public under the Government Data

Practices Act.

A public body cannot fulfill its obligation to make members’ materials available in the meeting

room for inspection by the public if the public does not know they are available for inspection.

While there is not an affirmative duty to distribute copies to each member of the public in

attendance at the meeting, liberally construing the law to protect the public’s right to full

access to the decision-making process of public bodies requires a public body to provide easy

access to the materials.

Meetings by Interactive Technology

Public bodies may hold meetings by interactive technology so long as certain requirements are

met to ensure openness and accessibility for those who wish to attend. State entities must

meet the requirements stated in section 13D.015. The requirements for other entities are

articulated in section 13D.02. Further, the requirements for meetings by telephone or

interactive technology during a health pandemic or emergency declared under chapter 12 are

stated in section 13D.021.

In general, the conditions for meetings by interactive technology include the following:

 All members of the body can hear one another and can hear all discussion and

testimony

 Members of the public at the regular meeting location can hear all discussion,

testimony, and votes

Minn. Stat. § 13D.04, subd. 6.

Minn. Stat. § 13D.01, subd. 6.

Minn. Dept. of Admin. Advisory Op. 18-011.

The term “interactive technology” replaced “interactive television” and “other electric means” throughout

chapter 13D in Laws 2021, chapter 14, which contained technical updates to the open meeting law. It is defined

under section 13D.001, subdivision 2, as “a device, software program, or other application that allows individuals

in different physical locations to see and hear one another.”

Minnesota Statutes section 13D.02 differs from sections 13D.015 and 13D.021, on this point by requiring that

the members of the body also be able to see one another and see all discussion and testimony.

Minnesota Statutes section 13D.02 differs from sections 13D.015 and 13D.021, on this point by requiring that

the members of the public present at the regular meeting location of the body also be able to see all discussion

and testimony and all votes of members of the body.

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 At least one member of the body (or, in the case of a health pandemic or other

emergency, the chief legal counsel or chief administrative officer) is present at the

regular meeting location

 All votes are conducted by roll call, so votes can be appropriately identified and

recorded

If interactive technology under section 13D.02 is used, each location must also be open and

accessible to the public. Up to three times a year, a member of a public body may participate by

interactive technology from a location that is not open and accessible to the public if the

member is serving in the military and is at a required drill, deployed, or on active duty or the

member has been advised by a health care professional against being in a public place for

personal or family medical reasons.

The meeting minutes must name each member

participating by interactive technology and state the reason why the member is participating in

that manner.

A public body conducting an open meeting by interactive technology must allow a person to

monitor the meeting electronically from another location, to the extent practical.

The public body must also provide notice of the regular meeting location and of the fact that

some members may participate by interactive technology.

Meetings held under section

13D.02 require that the notice provide the location of where a member of the public body will

be participating in the meeting by interactive technology, except if the member meets the

criteria for participation from a location that is not open and accessible to the public.

An exception was provided in Laws 2021, chapter 14, section 7, which allowed a member of a public body to

participate from a location not open or accessible to the public more than three times during the first half of

calendar year 2021 due to the COVID-19 health pandemic.

Minn. Stat. §§ 13D.015 (state entities; such an entity is also required to post notice on its website at least ten

days before any regular meeting and mention the option for a person to monitor the meeting electronically from

a remote location); 13D.02; 13D.021 (state or local entities in the case of health pandemic, other emergency).

Various statutes for specific public bodies also allow for meetings by interactive technology, telephone, or other

electronic means: Minn. Stat. §§ 35.0661 (Board of Animal Health during restricted travel for animal health

reasons); 41A.0235 (Minnesota Agricultural and Economic Development Board); 41B.026 (Rural Finance

Authority); 116L.03, subd. 8 (Minnesota Job Skills Partnership Board); 116M.15, subd. 5 (Minnesota Emerging

Entrepreneur Board); 116T.02, subd. 6 (Northern Technology Initiative, Inc.); 116U.24 (Explore Minnesota

Councils); 116U.25 (Explore Minnesota Tourism Council); 123A.16, subd. 1 (education district boards); 129C.105

(Board of the Perpich Center for Arts Education); 134.31, subd. 7 (Advisory Committee for the Minnesota Braille

and Talking Book Library); 176.102, subd. 3c (rehabilitation review panels); 176.103, subd. 3 (Medical Services

Review Board); 248.10 (Rehabilitation Council for the Blind); 256.482, subd. 5b (Minnesota State Council on

Disability); 256.975, subd. 2a (Minnesota Board on Aging); 256C.28, subd. 7 (Commission of the Deaf, DeafBlind

and Hard of Hearing); 268A.02, subd. 3 (State Rehabilitation Council and Statewide Independent Living Council);

326B.32, subd. 7 (Board of Electricity); 326B.435, subd. 7 (Plumbing Board); 326B.925, subd. 7 (Board of High

Pressure Piping Systems); 462A.041 (Minnesota Housing Finance Agency); 471.59, subd. 2 (joint powers board for

educational purposes).

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A member of a public body may participate in board meetings while out of state via interactive

technology, pursuant to section 13D.02, as long as the conditions of that section are met.

Exceptions to the Open Meeting Law

A closed meeting, except one closed under the attorney-client privilege, must be electronically

recorded at the expense of the public body. Unless otherwise provided by law, the recordings

must be preserved for at least three years after the date of the meeting.

The law does not apply to state agency disciplinary hearings.

The open meeting law does not apply to any state agency, board, or commission when

exercising quasi-judicial functions involving disciplinary hearings.

Certain meetings involving employee evaluation or discipline must be closed.

A public body must close meetings for preliminary consideration of allegations or charges

against an individual subject to its authority.

If the members of the public body conclude that

discipline may be warranted as a result of those charges or allegations, further meetings or

hearings relating to the charges or allegations must be open.

Meetings must also be open at

the request of the individual who is the subject of the meeting. If an outside investigator is

hired, the meeting should be open because the public body has moved past the preliminary

consideration of allegations or charges.

Statutes other than the open meeting law may permit or require closed meetings for certain

local governmental bodies to conduct specific kinds of disciplinary hearings. For example,

school board hearings held to discharge or demote a teacher are private unless the affected

teacher wants a public hearing.

A public body may close a meeting to evaluate the performance of an individual who is subject

to its authority. Before closing a meeting, the public body must identify the individual to be

Minn. Dept. of Admin. Advisory Op. 18-019.

Minn. Stat. § 13D.05, subd. 1.

Minn. Stat. § 13D.01, subd. 2. This subdivision also says that the law does not apply to meetings of the

Commissioner of Corrections, which does not really make sense since such a meeting is not of a multimember

body. It may be explained by the legislative history, however. Until 1982, the exception was for meetings of the

Corrections Board, a multimember body. A 1983 instruction directed the Revisor of Statutes to change

“Corrections Board” to “Commissioner of Corrections” throughout statutes. Laws 1983, ch. 274, § 18.

Minn. Stat. § 13D.05, subd. 2.

Minn. Dept. of Admin. Advisory Op. 23-004.

Minn. Dept. of Admin. Advisory Op. 19-008. The Commissioner of Administration found that the Tower City

Council violated the open meeting law when it did not open a meeting to the public, claiming that hiring an

outside investigator was still a primary consideration of employee misconduct allegations under section 13D.05.

Minn. Stat. § 122A.41, subd. 9.

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evaluated. The public body must summarize the conclusions of the evaluation at its next open

meeting. An evaluation meeting must be open at the request of the subject of the meeting.

A meeting may be closed to discuss labor negotiations.

The open meeting law permits a public body to hold a closed meeting to discuss strategy and

proposals for labor negotiations conducted under the Public Employment Labor Relations Act.

The statute specifies procedures for tape-recording of these meetings, and for the recordings to

become public when negotiations are completed.

Another law permits the Commissioner of

the Bureau of Mediation Services to close negotiations and mediation sessions between public

employers and public employees. These negotiations are public meetings, unless the

commissioner closes them.

The law permits closed meetings based on a limited attorney-client privilege.

In 1976, the Minnesota Supreme Court held that there is a limited exception, based on the

attorney-client privilege, for meetings to discuss strategy for threatened or pending litigation.

In 1990, the legislature added the attorney-client exception to the open meeting law.

Although the statute is not limited, the courts have since held that the scope of the exception

remains limited in relation to the open meeting law.

A balancing test must be applied,

weighing the purposes of attorney-client privilege against the purposes for holding open

meetings.

Minn. Stat. § 13D.05, subd. 3.

Minn. Stat. § 13D.03, subd. 1.

Minn. Stat. § 13D.03, subd. 2.

Minn. Stat. § 179A.14, subd. 3.

Minneapolis Star & Tribune Co. v. Housing & Redevelopment Auth., 310 Minn. 313, 324, 251 N.W.2d 620, 626

(1976).

Minn. Stat. § 13D.05, subd. 3.

Star Tribune v. Board of Ed., Special School Dist. No. 1, 507 N.W.2d 869 (Minn. App. 1993) review denied (Minn.

Dec. 22, 1993). The court of appeals did not accept the argument that the statutory exception encompassed the

full attorney-client privilege because that would result in the exception swallowing the rule in favor of open

meetings. In 2002, the Minnesota Supreme Court restated that the attorney-client privilege exception only

applies when the purposes for the exception outweigh the purposes of the open meeting law. In that case, the

city council was threatened with a lawsuit if it did not grant a request. The court found that the threat of a

lawsuit did not warrant closing the meeting. Prior Lake American v. Mader, 642 N.W.2d 729 (Minn. 2002) (en

banc). Cf. Brainerd Daily Dispatch v. Dehen, 693 N.W.2d 435 (Minn. App. 2005) (applying analysis of Star Tribune

and Prior Lake American, finding threats were sufficiently specific and imminent that confidential consultation

with legal counsel appointed by city’s insurer to discuss defense strategy or reconciliation to address a

threatened lawsuit justified closing the meeting).

Prior Lake American v. Mader, 642 N.W.2d 729 (Minn. 2002). See also Minn. Dept. of Admin. Advisory Op. 23-

005, where the Commissioner of Administration found the Woodbury City Council was in violation of the open

meeting law by going into closed session with the city attorney pursuant to section 13D.05, subdivision 3,

paragraph (b), to discuss issues regarding a contract between Independent School District No. 833 and the city to

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The attorney-client privilege exception does not apply to a mere request for general legal

advice. Nor does it apply when a governing body seeks to discuss with its attorney the strengths

and weaknesses of a proposed legislative enactment (like a city ordinance) that may lead to

future lawsuits because that can be viewed as general legal advice. Furthermore, discussion of

proposed legislation is just the sort of discussion that should be public.

In order to close a

meeting under the attorney-client privilege exception, the governing body must give a

particularized statement describing the subject to be discussed. A general statement that the

meeting is being closed to discuss pending or threatened litigation is not sufficient.

A meeting may be closed to address certain security issues.

If disclosure of the information discussed would pose a danger to public safety or compromise

security procedures or responses, a meeting may be closed to:

 receive security briefings and reports;

 discuss issues related to security systems;

 discuss emergency response procedures; and

 discuss security deficiencies in or recommendations regarding public services,

infrastructure, and facilities.

Before closing a meeting, the public body must refer to the facilities, systems, procedures,

services, or infrastructures to be considered during the closed meeting. A closed meeting must

be tape-recorded at the expense of the governing body, and the recording must be preserved

for at least four years.

Financial issues related to security matters must be discussed and all related financial decisions

must be made at an open meeting.

A meeting may be closed to discuss certain issues relating to government

property sales or purchases.

A public body may close a meeting to:

 determine the asking price for real or personal property to be sold by the

government entity;

 review confidential or nonpublic appraisal data; and

 develop or consider offers or counteroffers for the purchase or sale of real or

personal property.

provide school resource officer services. The commissioner concluded that the possibility of litigation was not

enough to justify closing the meeting and “the public’s right to hear the discussion about the contract

outweighed the need for absolute confidentiality.”

Star Tribune, 507 N.W.2d at 872.

The Free Press v. County of Blue Earth, 677 N.W.2d 471 (Minn. App. 2004).

Minn. Stat. § 13D.05, subd. 3.

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Before holding a closed meeting, the public body must identify on the record the particular

property that is the subject of the closed meeting. The proceedings must be tape-recorded at

the expense of the public body. The recording must be preserved for eight years after the date

of the meeting and made available to the public after all property discussed at the meeting has

been purchased or sold or the governing body has abandoned the purchase or sale. The

property that is the subject of the closed meeting must be specifically identified on the tape. A

list of members and all other persons present at the closed meeting must be made available to

the public after the closed meeting. If an action is brought claiming that public business other

than discussions allowed under this exception was transacted at a closed meeting held during

the time when the tape is not available to the public, the court would review the recording of

the meeting in camera and either dismiss the action if the court finds no violation, or permit

use of the recording at trial (subject to protective orders) if the court finds there is a violation.

An agreement reached that is based on an offer considered at a closed meeting is contingent

on approval of the public body at an open meeting. The actual purchase or sale must be

approved at an open meeting after the notice period required by statute or the governing

body’s internal procedures, and the purchase price or sale price is public data.

Other laws may authorize closed meetings under certain circumstances.

Statutes outside of chapter 13D and session laws may provide that a meeting may be closed for

a specific public body under certain circumstances. For example:

 Boards of public hospitals and certain health organizations may close meetings to

discuss competitive market activities and contracts.

 The Supervised Release Board may meet in closed session to receive and review a

victim’s statement, at the request of the victim.

 The Public Employment Relations Board may close a meeting when the board is

reviewing or deliberating on certain unfair labor practice charges, orders, and

decisions.

On-site inspections by town board members are not subject to the law.

The law does not apply to a gathering of town board members to perform on-site inspections, if

the town has no employees or other staff able to perform the inspections and the town board

is acting essentially in a staff capacity. The town board must make good faith efforts to provide

notice of the inspections to the media that have filed a written request, including a telephone

Minn. Stat. § 13D.05, subd. 3, referring to § 13D.03, subd. 3.

Minn. Stat. § 13D.05, subd. 3. Property appraisal data covered by this law is described in Minnesota Statutes,

section 13.44, subdivision 3.

Minn. Stat. § 144.581, subds. 4 and 5.

Minn. Stat. § 244.05, subd. 5, para. (g).

Minn. Stat. § 179A.041, subd. 10.

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number, for notice. Notice must be by telephone or by any other method used to notify the

members of the public body.

The law specifies how it relates to the Government Data Practices Act.

Except as specifically provided, public meetings may not be closed to discuss data that are not

public data under the Government Data Practices Act.

Data that are not public may be

discussed at an open meeting without liability, if the matter discussed is within the public

body’s authority and if it is reasonably necessary to conduct the business before the public

body.

Because statute only authorizes the disclosure of not public data “reasonably

necessary” to conduct the public body’s item of business, the extent of the disclosure should be

minimized. This may be accomplished by redactions or the use of pseudonyms.

A portion of a meeting must be closed if the following data are discussed:

 Data that would identify alleged victims or reporters of criminal sexual conduct,

domestic abuse, or maltreatment of minors or vulnerable adults.

 Active investigative data collected by a law enforcement agency, or internal affairs

data relating to alleged misconduct by law enforcement personnel.

 Certain types of educational, health, medical, welfare, or mental health data that are

not public data.

 An individual’s medical records governed by the Minnesota Health Records Act,

Minnesota Statutes, sections 144.291 to 144.298.

The legislature has addressed social media.

In 2014, the legislature added a provision relating to use of social media. “The use of social

media by members of a public body does not violate this chapter so long as the social media

use is limited to exchanges with all members of the general public. For purposes of this section,

e-mail is not considered a type of social media.”

“Social media” is not defined.

Penalties

The open meeting law provides a civil penalty of up to $300 for intentional violation.

A person

who is found to have intentionally violated the law in three or more legal actions involving the

same governmental body forfeits the right to serve on that body for a time equal to the term

Minn. Stat. § 366.01, subd. 11.

Minn. Stat. § 13D.05, subd. 1.

Minn. Stat. §§ 13.03, subd. 11; 13.05, subd. 4; and 13D.05, subd. 1.

Minn. Dept. of Admin. Advisory Op. 02-033.

Minn. Stat. § 13D.05, subd. 2.

Minn. Stat. § 13D.065.

Minn. Stat. § 13D.06, subd. 1.

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the person was serving. The Minnesota Supreme Court has held that this removal provision is

constitutional as to removal of elected officials only if the conduct constitutes malfeasance or

nonfeasance and provided that the violations occurred after the person had a reasonable

amount of time to learn the responsibilities of office.

A public body may not pay a civil penalty on behalf of a person who violated the law. However,

a public body may pay any costs, disbursements, or attorney fees incurred by or awarded

against a member of the body in an action under the open meeting law if the member was

found not guilty of a violation.

A court may award reasonable costs, disbursements, and reasonable attorney fees of up to

$13,000 to any party in an action under the open meeting law. However, the following

conditions apply:

 A court may award costs and attorney fees to a defendant only if it finds that the

action was frivolous and without merit.

 A court may award monetary penalties or attorney fees against a member of a

public body only if the court finds there was an intent to violate the open meeting

law.

The court must award reasonable attorney fees to a prevailing plaintiff if the public body was

also the subject of a prior written opinion issued by the Commissioner of Administration, and

the court finds that the opinion is directly related to the cause of action being litigated and that

the public body did not follow the opinion.

The appropriate mechanism to enforce the open meeting law is to bring an action in district

court seeking injunctive relief or damages. The statute does not provide for a declaratory

judgment action.

The Minnesota Supreme Court has held that actions taken at a meeting held in violation of the

open meeting law are not invalid or rescindable.

Advice

Public bodies subject to the open meeting law may seek advice on the application of the law

and how to comply with it from three sources:

Minn. Stat. § 13D.06, subd. 3; Claude v. Collins, 518 N.W.2d 836, 843 (Minn. 1994); see also Brown v. Cannon

Falls Township, 723 N.W.2d 31, 41-44 (Minn. App. 2006) (discussing the statutory history and that since 1994 the

statute has required three or more legal actions).

Op. Att’y Gen. 471-a, Dec. 31, 1992; Minn. Stat. § 13D.06, subd. 4.

Minn. Stat. § 13D.06, subd. 4.

Rupp v. Mayasich, 561 N.W.2d 555 (Minn. App. 1997).

Sullivan v. Credit River Township, 299 Minn. 170, 176-177, 217 N.W.2d 502, 507 (Minn. 1974).

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 The governmental entity’s attorney

 The attorney general

 The Commissioner of Administration

An individual may seek advice from two sources:

 The individual’s attorney

 The Commissioner of Administration

An individual who disagrees with the manner in which members of a governing body perform

their duties under the open meeting law may request the Commissioner of Administration to

give a written opinion on the governing body’s compliance with the law. The Department of

Administration’s Data Practices Office handles such requests.

The commissioner may decide not to issue an opinion. If the commissioner decides not to issue

an opinion, the commissioner must notify the requester in writing within five days of receipt of

the request. If the commissioner decides to issue an opinion, it must be done within 50 days of

the request. The governing body must be allowed to explain how it performs its duties under

the law.

Opinions of the Commissioner of Administration are not binding, but a court must give the

opinions deference. However, a governing body that follows an opinion is not liable for fines,

attorney’s fees or any other penalty, or forfeiture of office.

The Data Practices Office maintains a searchable opinion library accessible to the public on its

website.

Minnesota House Research Department provides nonpartisan legislative, legal, and

information services to the Minnesota House of Representatives. This document

can be made available in alternative formats.

www.house.mn.gov/hrd | 651-296-6753 | Third Floor, Centennial Office Building | St. Paul, MN 55155

Under Minnesota Statutes, section 8.06, the attorney general is the attorney for all state officers and boards or

commissions created by law. Under Minnesota Statutes, section 8.07, the attorney general, on request from an

attorney for a county, city, town, public pension fund, school board, or unorganized area, gives written opinions

on matters of public importance.

Minn. Stat. § 13.072, subds. 1 and 2.

https://mn.gov/admin/data-practices/. The Data Practices Office was formerly known as the Information Policy

Analysis Division (IPAD).

Minn. Stat. § 13.072, subd. 1.

Minn. Stat. § 13.072, subd. 2.

https://mn.gov/admin/data-practices/opinions/opinions-library/