Sheridan Newspapers, Inc. v. Bd. of Trs. of Sheridan Cnty. Sch. Dist. # 2

350 P.3d 266

2015 WY 70

SHERIDAN NEWSPAPERS, INC., Appellant (Petitioner)

v.BOARD OF TRUSTEES OF SHERIDAN COUNTY SCHOOL DISTRICT # 2, State of Wyoming, Appellee (Respondent).

No. S–14–0259.

Supreme Court of Wyoming.

May 14, 2015.

Representing Appellant: Bruce T. Moats, Law Office of Bruce T. Moats, P.C., Cheyenne, Wyoming.

Representing Appellee: Kendal R. Hoopes, Yonkee & Toner, LLP, Sheridan, Wyoming.

Before BURKE, C.J., and HILL, KITE, DAVIS, and FOX, JJ.

Opinion

KITE, Justice.

[¶ 1] Sheridan Newspapers, Inc. (Newspaper) sought a court order requiring the Board of Trustees of Sheridan County School District # 2 (Board) to release the minutes from any executive session held by the Board during which a proposed multi-purpose recreational facility was discussed. The Board filed a motion for summary judgment asserting the matters discussed during executive session fell within exceptions to the Wyoming Public Meetings Act (WPMA) and the minutes were confidential. With the motion, the Board filed under seal the minutes of the executive sessions at issue. After reviewing the minutes in camera, the district court entered an order granting summary judgment for the Board. The Newspaper appealed the order. Finding that the minutes are so vague as to reveal virtually nothing about the Board's discussions during the executive sessions, we conclude they are not confidential and reverse.

ISSUE

[¶ 2] The issue for our determination is whether the district court erred in concluding that the matters the Board discussed during executive sessions fell within the exceptions to the WPMA's public meetings requirement and the minutes from those sessions are confidential.

FACTS

[¶ 3] For a number of years prior to the initiation of the present action, the Board had been exploring ways to upgrade Sheridan High School, including its recreational facilities. One of the options considered was a multi-purpose recreational facility to meet the needs not only of the high school but the entire community. In 2013, school district representatives and various community groups held meetings to discuss the proposed facility. Upon becoming aware of the proposed facility and the community meetings concerning it, the Newspaper examined the Board's meeting agendas and minutes in an effort to learn more about the proposal and found no reference to the proposed facility. The Newspaper then interviewed members of the Board and learned that the proposed facility had only been discussed in executive sessions.

[¶ 4] In February of 2014, the Newspaper filed a petition requesting release of minutes reflecting Board discussion of the proposed multi-purpose recreational facility during executive sessions. In support of its petition, the Newspaper cited the WPMA, Wyo. Stat. Ann. §§ 16–4–401 through 16–4–408 (LexisNexis 2013), which provides that all meetings of a governmental body of an agency are public meetings unless they fall within one of the exceptions authorizing executive sessions found in § 16–4–405. The Newspaper alleged the district superintendent had acknowledged the Board discussed the recreational facility in executive sessions and claimed the executive sessions were authorized under § 16–4–405(a)(vii), which allows a governing body to hold executive sessions in order “to consider the selection of a site or the purchase of real estate when the publicity regarding the consideration would cause a likelihood of an increase in price.” The Newspaper further alleged that for two years the school district had been gathering input from various groups in the community about the construction of a multi-purpose recreational facility, rendering without merit the superintendent's contention that the executive sessions were necessary to prevent an increase in price as a result of publicity.

[¶ 5] The Board answered the petition, asserting the executive sessions were allowed under the WPMA and the minutes were confidential. Subsequently, the parties advised the district court that they had agreed the executive session minutes should be submitted to the court for an in camera review. The district court entered an order requiring the Board to deliver the minutes by a specified date. With the minutes, the Board filed a motion for summary judgment and supporting memorandum. The Board asserted the executive sessions were proper because during those sessions it discussed matters involving employees, pending litigation, consideration of a site or purchase of real estate, information classified as confidential by law or student expulsions, all of which are recognized exceptions under § 16–4–405(a) of the WPMA.

[¶ 6] The Newspaper opposed the Board's motion, arguing the multi-purpose recreational facility was not a proper subject for discussion in executive session and asking the district court to order release of the minutes of meetings in which the facility was discussed. After a hearing, the district court entered its order granting the motion for summary judgment finding that all issues discussed by the Board during executive session were “within the framework of what may be kept confidential pursuant to the [WPMA].” The Newspaper timely appealed.

STANDARD OF REVIEW

[¶ 7] We review the district court's order granting the Board's summary judgment motion de novo. Horning v. Penrose Plumbing & Heating, Inc., 2014 WY 133, ¶ 10, 336 P.3d 151, 153 (Wyo.2014). We also review de novo the district court's interpretation of the WPMA. Id.

DISCUSSION

[¶ 8] The question before us is whether the district court correctly concluded the Board minutes are confidential. In the context of the Wyoming Public Records Act, Wyo. Stat. Ann. §§ 16–4–201 through 16–4–205, we have said:

The burden of proof is on the custodian to overcome our inherent presumption that “the denial of inspection is contrary to public policy,” and the custodian “must ... test any contemplated withholding decision by asking whether withdrawal will be in the public interest.”

Consistent with the WPRA's overarching purpose, “the custodian, in any exercise of his right to withdraw, must confine his withdrawal discretion to those areas and circumstances prescribed by this Act,” employing such discretion on a selective basis rather than through the withdrawal of entire categories of public records. Put another way, the WPRA creates a presumption that the denial of inspection is contrary to public policy, and therefore places “the burden of proof upon the custodian to show that the exercise of his discretion does not run afoul of statutory limitations in any particular instance where custodial withdrawal is effected.”

Aland v. Mead, 2014 WY 83, ¶ 45, 327 P.3d 752, 766–767 (Wyo.2014), citing Powder River Basin Res. Council (“PRBRC”) v. Wyo. Oil & Gas Conservation Comm'n, 2014 WY 37, ¶ 34, 320 P.3d 222, 231 (Wyo.2014) (internal citations omitted). For the same reasons, we conclude in the context of the WPMA that the agency has the burden of proving that nondisclosure of executive session minutes is supported by the Act.

[¶ 9] The following provisions of the WPMA are relevant in resolving the question of whether nondisclosure of the Board's executive session minutes is supported by the Act:

§ 16–4–401. Statement of purpose.

The agencies of Wyoming exist to conduct public business. Certain deliberations and actions shall be taken openly as provided in this act.

§ 16–4–402. Definitions.

(a) As used in this act:

(i) “Action” means the transaction of official business of an agency including a collective decision, a collective commitment or promise to make a positive or negative decision, or an actual vote upon a motion, proposal, resolution, regulation, rule, order or ordinance at a meeting;

(ii) “Agency” means any authority, bureau, board, commission, committee, or subagency of the state, a county, a municipality or other political subdivision which is created by or pursuant to the Wyoming constitution, statute or ordinance, other than the state legislature and the judiciary;

(iii) “Meeting” means an assembly of at least a quorum of the governing body of an agency which has been called by proper authority of the agency for the expressed purpose of discussion, deliberation, presentation of information or taking action regarding public business;

(iv) “Assembly” means communicating in person, by means of telephone or electronic communication, or in any other manner such that all participating members are able to communicate with each other contemporaneously;

(v) “This act” means W.S. 16–4–401 through 16–4–408.

§ 16–4–403. Meetings to be open; ....

(a) All meetings of the governing body of an agency are public meetings, open to the public at all times, except as otherwise provided. No action of a governing body of an agency shall be taken except during a public meeting following notice of the meeting in accordance with this act. Action taken at a meeting not in conformity with this act is null and void and not merely voidable.

....

§ 16–4–405. Executive sessions.

(a) A governing body of an agency may hold executive sessions not open to the public:

....

(ii) To consider the appointment, employment, right to practice or dismissal of a public officer, professional person or employee, or to hear complaints or charges brought against an employee, professional person or officer, unless the employee, professional person or officer requests a public hearing. The governing body may exclude from any public or private hearing during the examination of a witness, any or all other witnesses in the matter being investigated. Following the hearing or executive session, the governing body may deliberate on its decision in executive sessions;

(iii) On matters concerning litigation to which the governing body is a party or proposed litigation to which the governing body may be a party;

....

(vii) To consider the selection of a site or the purchase of real estate when the publicity regarding the consideration would cause a likelihood of an increase in price;

....

(ix) To consider or

...