Last week, a reporter called with an interesting question. A public governmental body had received a letter of resignation from an employee. Normally I would consider that a "record pertaining to" an employee and therefore permissible to be a closed record under exception 13 of 610.021.
However, in this case, the record was brought to the meeting of the public body. The members discussed the receipt of the letter in open session. Heck, at one point, the head of the public body read a bit from the letter out loud.
The reporter wanted the letter. The public body now says it is a closed record. While there's no case law on this exact circumstance, I believe the fact that it was a subject discussed at the open meeting waives their right to consider it a closed record. Records are presumed to be open unless they are closed under an exception. The exceptions must be construed narrowly. If a record is closed, it seems clear that any discussion of that record should take place in a closed meeting. That could have happened (except, of course, for the fact that the subject being discussed, which the record was related to, was NOT a subject that could be discussed in a closed meeting, which is why the public body wisely held that discussion in an open meeting). But once they start discussing a closed record in an open meeting, I believe there is a strong argument that they've waived the right to close that record. The public has a right to know what is being discussed in an open meeting, and I believe that right includes the right to inspect all documents which are being referenced by the body in that open meeting, even records that might under other circumstances be a closed record. While there might be some ground to stand on if the reference was simply just a very slight mention that the closed record existed, without discussing its contents, I definitely think that when a portion of that letter is read during the meeting, for whatever circumstances might exist that caused its reading, the public body has definitely crossed the line.
That's my opinion. It's just an opinion of one lawyer. As I'm constantly reminded when I look for support in an Attorney General's opinion, there's only one person's opinion who really matters in such cases -- the opinion of the judge hearing the case....