February 13, 1995
Mr. John L. Holshouser, Jr.
John L. Holshouser, Jr., & Assoc.
309 North Main Street
Salisbury, North Carolina 28144
RE: Advisory Opinion; Open Meetings Law; N.C.G.S. §143-318.11(a)(4) and (5); Closed
Meetings to Discuss Acquisition of Land for Industrial Park.
Dear Mr. Holshouser:
You have asked for an opinion on whether the Open Meetings Law permits a closed session to
discuss the acquisition of land for use as a county industrial park development.
Specifically, you noted that N.C.G.S. §143-318.11(a)(4) permits closed sessions for discussions
related to the location or expansion of businesses or industries. You asked if the siting and
acquisition of property for an industrial park may be discussed in a closed session to preserve the
confidentiality of the preferences of certain businesses for particular sites.
For the reasons that follow, it is our opinion that the siting and acquisition of property for an
industrial park ordinarily should be discussed in open session. However, a closed session may be
held for the limited purpose of hearing specific businesses’ preferences for particular sites, or if
location of the park is a matter the public body needs to negotiate.
Prior to 1994, the Open Meetings Law authorized public bodies to hold executive sessions to
consider the selection of a site or the acquisition of real property. N.C.G.S. §143-318.11(a)(1).
Public bodies were also authorized to hold executive sessions to discuss matters related to the
location or expansion of industries or other businesses. N.C.G.S. §143-318.11(a)(7).
The Open Meetings Law was amended in the 1994 legislative session. See, 1994 Sess. Laws Ch.
570. The provision permitting closed sessions (formerly "executive sessions") for discussions of industrial expansion was retained, unchanged, at N.C.G.S. §143-318.11(a)(4). However, the provision permitting closed sessions to consider real property site selection was repealed. It was replaced with a more limited provision, permitting only discussions about negotiating positions on the price or other material terms of proposed real property contracts. N.C.G.S. §143318.11(a)(5).
We do not believe that the authority for closed session discussions on property site selection has been subsumed under the authority for closed session discussions on industrial expansion. The intent of the amendment was to eliminate the authority to hold closed sessions for general discussions on site selection.
The consequence of this change is that real property site selection may now only be discussed in a closed session if it is a matter over which the public body plans to negotiate with potential sellers. For example, if a public body wishes to negotiate with a seller over which part of a larger tract it wants to purchase, it might discuss this in a closed session. However, the public body’s discussion of which tract among several it might purchase is something that normally would not need to be negotiated, and thus would not be a proper subject for a closed session.
Nevertheless, we recognize that a public body’s decision concerning which site to select might be based, in part, on the preferences of businesses that may want to locate there. Some businesses may be willing to consider expansion or location within the jurisdiction only if their interests remain confidential while plans are being formulated and considered. In these circumstances, the names of businesses that are contemplating a move to the jurisdiction, and the factors that might induce those businesses to locate there, are proper subjects for closed sessions pursuant to Subsection (4) on closed sessions. We conclude, therefore, that a closed session may be held for the limited purpose of discussing which businesses prefer which sites. We caution that such a closed session may be held solely to discuss the preferences of particular businesses, and that the location of a site or sites under consideration by a public body may not be kept confidential.
We also caution that when the public body holds discussions concerning its own preferences for one site over another, such discussions must also be held in open session.
Also, even business preferences for particular sites must eventually be revealed. Public bodies are obligated to keep minutes of all closed sessions, including ones in which businesses’ site preferences are discussed. These minutes may be withheld from public inspection only so long as public inspection would frustrate the purpose of the closed session. N.C.G.S. §143-318.10(e). Once revelation of businesses’ site preferences would no longer jeopardize the expansion or location of the business within the jurisdiction, those preferences must be revealed. This is consistent with North Carolina’s Public Records Law, which provides that records related to the proposed expansion or location of specific business or industrial projects may be withheld so long as their release would frustrate the purpose for which they were created. N.C.G.S. §132-6.
We trust that this responds fully to your request. If you have further questions, please do not hesitate to let us know.
John R. McArthur Chief Counsel
Wanda G. Bryant
Senior Deputy Attorney General for Citizens’ Rights