Must an advisory board follow Minnesota's Open Meeting Law?

The lamentations expressed by journalists, by advocates of transparency in government and even by government officials like Minneapolis Mayor Jacob Frey over restrictions imposed on media coverage of meetings of an advisory body for the city's $200 million Upper Harbor Terminal — an infrastructure project in the heavily African-American segment of north Minneapolis — are well-meaning but may be legally misplaced ("Pattern seen in barring media," Jan. 25).

The criticisms directed to restrictions on media access and video recording of meetings of the 17 appointees of a city advisory committee, including one member of this newspaper's board of directors, presume that the state's Open Meeting Law requires the sessions to be fully open to the public and its surrogates, the media.

But that is not necessarily so. A 1988 decision of the state Court of Appeals in a lawsuit brought by the Minnesota Daily newspaper, which the Supreme Court declined to review, ruled that an advisory committee created by the University of Minnesota Board of Regents to screen candidates for selection of a new president for the U was not subject to the transparency requirements of the Open Meeting statute. While a subsequent nonbinding opinion of the state Department of Administration differed with that view regarding a permanent standing advisory committee of a community hospital board, the appellate decision in the Daily case remains the governing law in this state as to advisory bodies created for limited purposes and a temporary time period.

Although the Daily decision did not categorically rule that all advisory units are outside the purview of the Open Meeting measure, the factors that it pointed to in making that assessment seem to give the Upper Harbor group a safe harbor in navigating around that law. In particular, the absence of any members of the City Council on the advisory group and its limited duration, similar to the lack of any regents on the university's temporary advisory presidential selection unit, are telling in rendering the Open Meeting Law legally inapplicable.

The dearth of legal basis to impose the requirements of the Open Meeting law upon the city's Upper Harbor group does not justify that committee's attempts at opacity. To its credit, the group has complied with most features of the Open Meeting Law, including advanced distribution of notices of its meetings, open sessions for the public and publication of its minutes. Even if it's not legally obligated to allow media coverage, it is prudent for this taxpayer-funded body to conduct all of its important business in the open. Greater transparency through unrestricted media access would encourage greater accountability on the part of the committee and maximize the free flow of information to the citizenry it serves.

Further, the reasons advanced by the body's members to hamper media coverage, unfair reporting and white racism, do not justify its restrictive reaction; those rationales warrant more "sunshine" as a disinfectant, not less.

The concerns over the partial media closures by the Upper Harbor body are not only well-intended, but they also signify the need to amend the state law, clarify its applicability to advisory boards or committees of governing bodies, establish effective and efficient enforcement mechanisms, and provide strong remedies for violations of the public's right to know.

Marshall H. Tanick is a Twin Cities constitutional law attorney who represented the Minnesota Daily in the Open Meeting Law case against the university.