Inquiry of the Week (10/29/01)

Question:

May city or county legislative bodies meet in executive session to discuss "matters affecting national security," including terrorism security and response planning?

Answer:

Yes. A governing body is authorized under RCW 42.30.110(1)(a) to "consider matters affecting national security" in executive session. While we have not previously encountered a situation where a local government governing body might consider such matters, this appears to be one. Given the events of September 11, 2001, the threat of a terrorist attack or sabotage or the like clearly appears to implicate national security issues. A terrorist attack, by its very nature, can be considered, in addition to a major risk to public safety, to be a matter of national security.

A recent change in the public disclosure law has some relevance to this issue. Although not using national security language, the 2001 state legislature adopted a new public disclosure exemption for the following:

Those portions of records containing specific and unique vulnerability assessments or specific and unique response plans, either of which is intended to prevent or mitigate criminal terrorist acts as defined in RCW 70.74.285, the public disclosure of which would have a substantial likelihood of threatening public safety.

See RCW 42.17.310(1)(ww) (Chapter 98, Laws of 2001). In addition, the legislature made the following findings in Section (1) of this legislation:

The legislature finds that public health and safety is promoted when the public has knowledge that enables them to make informed choices about their health and safety. Therefore, the legislature declares, as a matter of public policy, that the public has a right to information necessary to protect members of the public from harm caused by alleged hazards or threats to the public.

The legislature also recognizes that the public disclosure of those portions of records containing specific and unique vulnerability assessments or specific and unique response plans, either of which is intended to prevent or mitigate criminal terrorist acts as defined in RCW 70.74.285, could have a substantial likelihood of threatening public safety. Therefore, the legislature declares, as a matter of public policy, that such specific and unique information should be protected from unnecessary disclosure.

A "terrorist act" is defined in RCW 70.74.285 as follows:

(A)n act that is intended to: (1) Intimidate or coerce a civilian population; (2) influence the policy of a branch or level of government by intimidation or coercion; (3) affect the conduct of a branch or level of government by intimidation or coercion; or (4) retaliate against a branch or level of government for a policy or conduct of the government.

Given this legislation's policy of nondisclosure of "records containing specific and unique vulnerability assessments or specific and unique response plans" concerning terrorist acts, it would appear that a governing body meeting to discuss terrorism response or security plans would justify similar protection from "disclosure" under RCW 42.30.110(1)(a).