Exceptions

The Law

The provisions of Subsections A, B and G of this section do not apply to…

Commentary

 Subsection H prescribes the circumstances under which certain meetings or portions of meetings are not subject to the open meetings and minute-taking requirements of the Open Meetings Act. Because the basic policy established by the Act favors open meetings, the Act must be strictly followed when meetings are to be closed. As a general rule, meetings may only be closed when the matter to be considered falls within one of the enumerated exceptions defined in the Act and discussed in detail below. 

A few closures may be implied from or required by other laws or constitutional principles that specifically or necessarily preserve the confidentiality of certain information. Aside from these limited circumstances, however, no exception to the Open Meetings Act can be implied. The following examples illustrate such laws.

 Example 31:

Section 12-6-5 of the Audit Act provides that an audit report does not become a public record, i.e., subject to public inspection, until five days after the auditor releases it to the audited agency. Where the agency being audited is governed by a public body subject to the Open Meetings Act and where release of the report occurs at an exit conference at which a quorum of the members of the body is present, such exit conference need not be open to the public in order to preserve the confidentiality of the information protected by Section 12-6-5.

Example 32:

Section 61-1-7 of the Uniform Licensing Act provides that hearings generally shall be open to the public, but gives a board authority to hold a closed hearing “in cases in which any constitutional right of privacy of an applicant or licensee may be irreparably damaged … if the board … so desires and states the reasons for this decision in the record.” This provision is consistent with the policy of the Open Meetings Act that permits closure when required by the constitution. Accordingly, a board may close a hearing pursuant to Section 61-1-7 if necessary to safeguard privacy interests protected by the New Mexico or United States Constitutions.

Example 33: 

A state licensing board holds a hearing at which certain evidence to be presented is alleged to be constitutionally protected. The party making the allegation requests that the hearing be closed during the times the evidence is presented. The board should determine, through a procedure open to the public, whether disclosure would violate any constitutional rights. In making this determination, the board must apply the constitutional test appropriate to the rights asserted (e.g., in some circumstances the test involves balancing the harm to the party resulting from disclosure against the harm to the public and others from nondisclosure). If the board decides that disclosure will violate the party’s constitutional rights, the board can properly close those portions of any subsequent hearing that involve the protected evidence.

Example 34: 

A city housing authority responsible for reviewing and approving applications for subsidized home loans for low-income families must necessarily consider the family’s financial records to determine if the family qualifies under the program. Although the housing authority is concerned with preserving the privacy of the applicants, the information required in order to establish eligibility for the loans is not protected and may be discussed in open meetings. As there is no basis for closing the meetings, the housing authority should respect the privacy of the applicants by asking only for the specific information required by the program and no more.