(dissenting in part).
I concur in all of the court’s opinion except division III, with which I disagree.
Section 28A.5(4) requires a tape record of a closed session. The tape recording is not to be divulged to the public. But if an enforcement proceeding is brought under chapter 28A, the tape is examined by the court in camera and the court balances prejudice to the public interest against probative value in the enforcement proceeding to determine whether to reveal part or all of the tape to the party seeking enforcement. I believe these provisions apply before the court tries the enforcement proceeding and decides whether the session was legally or illegally closed.
What happens after the court decides whether the session was legally or illegally closed? If the court holds the session was legally closed, the tape remains confidential and is not divulged to the public. But if the court finds the other way and holds the session had to be open, I think the inevitable effect of the judgment is that the occurrences at the session are not confidential— they constitute public information. Consequently the officials who attended the session could be required to tell what transpired there, and the tape of the session would stand on the same footing and be available to the public. We would have a strange situation if the officials could be compelled to tell what happened but the tape on the identical occurrences could not be heard.
The sanctions in section 28A.6 constitute punishment; they do not deal with the inevitable effect of the judgment itself in rendering the information public. The question the public has is not what punishment is meted out for illegally closing a session, but what happened at the session. Public officials should not be able to render public information permanently secret from the public by the simple expedient of going into closed session.
The trial court and this court have now held that these council sessions had to be open. What transpired at the sessions is therefore public information. The councilmen can be required to divulge that information or it is available from the tape recordings. If courts hold in enforcement proceedings that sessions in question had to be open but then hold that the officials who attended the sessions do not have to divulge what occurred and tapes of the sessions cannot be heard, the courts will perpetuate *538the secrecy they themselves have held illegal.
A situation could arise in which a court holds that a session was closed legally as to one topic but illegally as to another topic. That does not appear to be the situation here. •
I think the trial court should have sustained this part of the Herald’s motion to enlarge findings and amend decree.
McCORMICK, J., joins in this dissent.