## Facts

- Henderson County’s Board of Commissioners considered a moratorium on racetracks and speedways while developing a noise ordinance.
- At a special meeting on November 12, 1998, the Board discussed the proposed moratorium in open session.
- The Board then entered closed session under N.C. Gen. Stat. § 143-318.11(a)(3) to consult the county attorney.
- Closed-session minutes reflected the attorney’s advice on legal distinctions between ordinance types, likely legal challenges, and proposed revisions to improve defensibility.
- After returning to open session, the Board adopted a 90-day moratorium without taking public comment and kept the closed-session minutes confidential.
- A newspaper publisher sued, alleging improper use of the attorney-client exception and inadequate recordkeeping, and sought release of the closed-session minutes.
- On remand after a prior appeal, the trial court found the closed session improper (as policy discussion) and ordered the minutes released; the Board appealed.

## Issues

1. Whether the Board properly convened a closed session under N.C. Gen. Stat. § 143-318.11(a)(3) to preserve the attorney-client privilege.
2. Whether the closed-session minutes and required “general account” complied with the Open Meetings Law’s documentation requirements.
3. Whether adoption of the moratorium in open session required disclosure of the closed-session minutes.

## Decision

- The court held the closed session was properly convened under § 143-318.11(a)(3) because the discussion concerned privileged legal advice about the proposed moratorium.
- The court held the minutes and general account were adequate because they were sufficiently specific to permit judicial review and to give a general understanding of what occurred without revealing privileged particulars.
- The court held the trial court erred in ordering disclosure of the minutes based on a finding that the attorney-client exception did not apply.
- The court reversed the trial court’s contrary rulings.

## Legal Principles

- A public body may meet in closed session to consult counsel on matters within the attorney-client privilege, but may not close a meeting merely because an attorney participates or to discuss general policy as a pretext.
- When a closed session is challenged, the public body bears the burden of justifying it with minutes or a general account detailed enough to allow a court to determine whether the session was authorized.
- Closed-session minutes need not be verbatim; they must provide a general account sufficient for judicial review and a general understanding, consistent with protecting privileged communications.
- A later public vote on related action does not, by itself, waive the attorney-client privilege or require disclosure of confidential closed-session legal advice while disclosure would frustrate the purpose of the closed session.

## Conclusion

The court upheld the Board’s use of the attorney-client exception for confidential legal advice about the moratorium, found the Board’s closed-session records sufficient under the Open Meetings Law, and rejected a rule that would compel disclosure of privileged minutes merely because the Board later acted in open session.


Multimedia Publ'g of N.C., Inc. v. Henderson Cnty., 145 N.C. App. 365, 550 S.E.2d 846 (N.C. Ct. App. 2001)