Inquiry of the Week (5/27/02)

Question:

What may be disclosed publicly concerning what was discussed in executive session?

Answer:

There are no specific statutory rules regarding what may be revealed publicly regarding what was discussed in executive session. However, there is one statute that could potentially apply to disclosure of what was discussed in executive session. RCW 42.23.070(4) 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." However, it is not clear exactly what is meant by "confidential information" in this statute. Not everything that is discussed in executive session is necessarily "confidential" and matters that are confidential may lose their confidential nature over time. There are no reported court decisions that have applied this statute. In any event, municipal officers who violate this statute are subject to a $500 penalty and possible forfeiture of office. RCW 42.23.050.

In general, since the purpose of an executive session is to discuss confidentially matters that would be detrimental (to the city or to city personnel) to discuss in public, councilmembers should not discuss publicly what was discussed in executive session, without council approval or until public knowledge of the matter would no longer be detrimental to the city or its officials. For example, if the council discussed with the city attorney in executive session existing litigation against the city, revealing to the public after the session what was discussed could harm the city's litigation position. Otherwise, why would the council be meeting in closed session? Disclosing publicly what was discussed in executive session undermines the whole purpose of meeting in executive session.

Also, preserving the confidentiality of the executive session can promote effective discussion in closed session. If councilmembers are concerned that what they say in executive session might be disclosed afterwards, they may be reticent to freely discuss matters in the session. So, even if the matter discussed may no longer be confidential (e.g., the litigation is over), councilmembers may still not want what they said in closed session to be made public, particularly if it is presented out of context.

Given the above considerations, we think it advisable for the council to adopt a rule that prohibits councilmembers from discussing publicly what took place in executive without prior council approval. A bright-line rule like that is easy to apply and avoids confusion. If the council is truly discussing in closed session only what the Open Public Meetings Act allows to be discussed in closed session, there would in most circumstances be no valid reason to disclose publicly what was discussed privately.