Casual Legal: Meetings behind closed doors
By Ben Throndson
Reynolds Mirth Richards Farmer LLP
Alberta Municipalities Casual Legal Service Provider
Municipal councils are made up of elected representatives carrying out public business. On this basis, one might expect all council meetings to take place in public view. However, as this article will describe, the law in Alberta recognizes circumstances when council may meet “in camera” (the Latin legal term for “in private”), thereby shielding its deliberation process from public view. In legislation and practice the term in camera is being replaced with “closed”.
Meeting in public is the default rule. Section 197 of the Municipal Government Act (MGA) provides that councils and council committees must conduct their meetings in public, unless one of a specified list of exceptions applies. A council may (but is not required to) close all or part of their meeting to the public if the matter to be discussed falls within one of the “exceptions to disclosure” set out in the Freedom of Information and Protection of Privacy Act (FOIPPA).
The FOIPPA contains a detailed list of exceptions to disclosure which could support a council’s decision to meet in private. This list includes when the information to be discussed would be harmful to the business interests of a third party, would be harmful to a person’s personal privacy, would be harmful to individual or public safety (or law enforcement), relates to a person’s confidential employment evaluation, or relates to privileged information (such as legal advice). More examples of exceptions to disclosure are listed in the FOIPPA.
The MGA also imposes additional procedural limitations on a council’s ability to meet in private. Before a meeting (or any part of a meeting) is closed to the public, council must approve by resolution the part of the meeting to be closed, and the basis on which the part of the meeting in question is to be closed. A best practice would be to list the closed discussion on the agenda, alongside a ‘Confidential’ heading, with a brief description of the topic to be discussed and stating the section of FOIPPA allowing closure for that topic. For instance, “Confidential - Personnel FOIP Section 19” could describe the confidential performance evaluation of a chief administrative officer without disclosing the confidential discussions.
Additionally, no resolutions or bylaws may be passed by council when they are meeting in private, other than a resolution to return to meeting in public. A best practice would be for council to pass an initial resolution to meet in private, hold the deliberations, and then to pass a further resolution to revert to the public meeting. If council wishes to make a direction or decision after the private deliberations, a resolution must then be made in the public portion of the meeting so that council’s direction or decision can be recorded and acted upon, taking care not to disclose the contents of the confidential discussions in the motion.
To access Alberta Municipalities Casual Legal Helpline, Alberta Municipalities members can call toll-free to 1-800-661-7673 or send an casuallegal [at] abmunis.ca (email) to reach the municipal legal experts at Reynolds Mirth Richards and Farmer LLP. For more information on the Casual Legal Service, please call 310-MUNI (6864) or send an riskcontrol [at] abmunis.ca (email) to speak to Alberta Municipalities Risk Management staff. Any Regular or Associate member of Alberta Municipalities can access the Casual Legal Service.
DISCLAIMER: This article is meant to provide information only and is not intended to provide legal advice. You should seek the advice of legal counsel to address your specific set of circumstances. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this article to be outdated.
