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May a Township Board Member be subject to criminal or civil liability for disclosing to members of the public information discussed and disclosed in a closed session?

Likely Yes.

This issue has not been directly presented to the Michigan Court of Appeals or Supreme Court. But in 2000, the Michigan Attorney General opined that an individual board member could be held criminally or civilly liable for disclosing closed meeting deliberations. OAG No 7,061 (August 31, 2000). The Attorney General was presented exactly this same question, and emphasized the closed session is “closed to the public” under the Michigan Open Meetings Act. MCL 15.262(c). The “minutes of a closed meeting [shall be] unavailable to the public” and “shall only be disclosed if required by a civil action.” MCL 15.267(2) (emphasis added).  Given that both the meeting and the minutes themselves are not available to “the public,” the Attorney General found that any member who disclosed the minutes of the closed session themselves in violation of MCL 15.267(2) “risks both criminal prosecution and civil penalties under the [Open Meetings Act].” OAG No 7,061, (emphasis added).

The Attorney General’s opinion can be expanded to include more than just the minutes, such as the actual deliberations, documents produced, transcripts or audiotapes. Titus v Shelby Charter Twp, 226 Mich App 611, 615; 574 NW2d 391 (1997) (finding transcript of the discussion is part of the minutes of the session and is exempt from disclosure); Kitchen v Ferndale City Council, 253 Mich App 115, 124; 654 NW 918 (2002) rev'd in part on other grounds by Speicher v Columbia Twp Bd of Trustees, 497 Mich 125; 860 NW2d 51 (2014) (finding audiotape part of minutes).

Ultimately, if the minutes are closed to the public, then what was actually said is also closed to the public under the Open Meetings Act. MCL 15.272 of the Open Meetings Act provides that a public official may be guilty of a misdemeanor for intentionally violating the act, and MCL 15.273 provides that the public official may also be personally liable in a civil action for damages plus costs and attorney fees for an intentional violation.

The Open Meetings Act is not the only support for criminal or civil liability for disclosing confidential discussions. The duty of loyalty prohibits self-dealing and disclosing confidential information. MCL 15.342 incorporates facets of the duty of loyalty by prohibiting all the following:

  • Disclosing confidential information acquired in the course of serving the township before public disclosure is authorized by the board.
  • Personally benefiting from the knowledge or use of confidential information.
  • Using township resources, property and funds for personal gain or benefit.

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