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Confidentiality and Executive Sessions


August 10, 2017 by Paul Sullivan
Category: Open Public Meetings Act , Ethics and Conflicts of Interest

Confidentiality and Executive Sessions

A new formal Attorney General Opinion (AGO 2017 No. 5) was issued on August 3, 2017 providing instruction on the confidentiality of executive sessions. The opinion addresses four questions that periodically arise regarding the release of information learned during an executive session:

  • Is information learned in a properly-convened executive session generally confidential?
  • If a municipal officer discloses confidential information from an executive session, is there a violation of the Code of Ethics for Municipal Officers?
  • Could an officer who improperly discloses confidential information learned during an executive session be charged with a misdemeanor?
  • To assure confidentiality, is a court order required to exclude a member of the governing body from an executive session?

Here is a quick summary of the conclusions reached in the AGO.

Is information from an executive session generally confidential?

Analyzing the Open Public Meetings Act (OPMA) and the authority it provides to exclude the public from meetings during the consideration of certain statutorily-named subjects, the AGO concludes that participants in an executive session have a duty under the OPMA to keep information from the session confidential, provided the executive session was properly called and the information involved was within the scope of the purpose for the executive session. In other words, disclosure of confidential information would frustrate the purpose of having an executive session. However, information shared from an executive session that previously has been publicly discussed would not be confidential. Additionally, information discussed which is beyond the scope of the purpose for the executive session is not protected by the requirement to keep it confidential.

Is there a violation of the Code of Ethics for Municipal Officers if an officer discloses confidential information from an executive session?

The AGO concludes that disclosure of confidential information from an executive session by a municipal officer violates RCW 42.23.070(4), which states:

No municipal officer may disclose confidential information gained by reason of the officer's position, nor may the officer otherwise use such information for his or her personal gain or benefit.

The statute prohibits both the disclosure of confidential information and its use for personal gain or benefit. Relying upon the language of RCW 42.52.010(5), the opinion defines “confidential information” as “(a) specific information, rather than generalized knowledge, that is not available to the general public on request or (b) information made confidential by law.”  Information learned from an executive session is information not available to the general public and it is made confidential by the OPMA, so disclosure by a municipal officer would be a violation of RCW 42.23.070(4), a provision of the Code of Ethics for Municipal Officers.

If the confidentiality of an executive session is broken by the disclosure of confidential information, could the violating official be charged with a misdemeanor?

While the AGO indicates that a charge under either RCW 42.20.100 (willful neglect of duty) or RCW 9A.80.010 (official misconduct) could possibly be brought, it concludes a violation would be difficult to be prove since there would need to be a showing of criminal intent and proof would need to be proved beyond a reasonable doubt.

Although not covered by the AGO, might a violating officer be subject to a $500 penalty and the possible forfeiture of office under RCW 42.23.050? The AGO concludes that a breach of confidentiality is a violation of RCW 42.23.070(4), and RCW 42.23.050  provides the penalties for violations of the chapter 42.23 RCW (i.e., monetary penalty and office forfeiture). In addition, there is also the possibility of recall from office based upon an OPMA violation. See, e.g., Teaford v. Howard, 104 Wn. 2d 580 (1985) and In re Roberts, 115 Wn.2d 551 (1990).

To assure confidentiality, must an agency obtain a court order in order to exclude an officer from an executive session?

A governing body could seek a writ of mandamus or an injunction to enforce confidentiality against a member of the body under RCW 42.30.130. Otherwise, the AGO concludes, it would be difficult to exclude a member. However, the opinion does indicate that under “sufficiently extreme facts,” such as when a member of the governing body sues that governing body, the member might be subject to exclusion without a court order. Additionally, the opinion further suggests that it might be possible for a governing body to address the confidentiality of its executive sessions (including penalties for violating confidentiality) through its own ordinances or rules. 

Questions? Comments?

If you have questions about AGO 2017 No. 5 or other local government issues, please use our Ask MRSC form or call us at (206) 625-1300 or (800) 933-6772. If you have comments about this blog post or other topics you would like us to write about, please email me at psullivan@mrsc.org.

About Paul Sullivan

Paul has worked with local governments since 1974 and has authored MRSC publications on local elections, ordinances, and general local government operation. He also provides training on the Open Public Meetings Act.

VIEW ALL POSTS BY Paul Sullivan

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Comments

"Dear E.J. Zita, I’m not quite sure that there is a connection between an improper executive session and the improper release of information from an executive session. Obviously, a local government should not discuss something in an executive session unless it is allowed to do so by RCW 42.30.110 (which lists the subjects for which an executive session can be held). And, if it improperly holds an executive session, any action that was taken would be null and void, and the members of the governing body in attendance could face penalties. But that’s a different situation than the improper release of information from an executive session that was properly called. My blog article deals with the latter situation."

Paul Sullivan on Sep 26, 2017 1:03 PM

"This article discusses confidential information discussed in Executive Sessions, and sanctions available if confidential information is disclosed. However, sometimes information is incorrectly treated as confidential in Executive sessions. The WA State Supreme Court recently ruled that the OPMA restricts what Port Commissioners can discuss in Executive Sessions regarding real estate, and clarifies that virtually all real estate information should be discussed in public, contrary to common practices. http://law.justia.com/cases/washington/supreme-court/2017/92335-3.html If information that should be public, based on the OPMA, is discussed in Executive Sessions, the Supreme Court decision supports release of that information. Please comment."

E.J. Zita on Sep 25, 2017 10:31 AM

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