HB 3292

Washington State House of Representatives Office of Program Research	BILL ANALYSIS

State Government & Tribal Affairs Committee

HB 3292

This analysis was prepared by non-partisan legislative staff for the use of legislative members in their deliberations. This analysis is not a part of the legislation nor does it constitute a statement of legislative intent.

Brief Description: Recording executive sessions under the open public meetings act.

Sponsors: Representatives Kessler, DeBolt, Miloscia, Upthegrove, Kelley and Hurst; by request of Attorney General and State Auditor.

Brief Summary of Bill

Requires the audio recording of all executive sessions conducted by a governing body under the Open Public Meetings Act.

Hearing Date: 2/4/08

Staff: Colleen Kerr (786-7168).

Background:

The Open Public Meetings Act
The Legislature enacted Washington's Open Public Meetings Act (OPMA) in 1971. The OPMA is modeled on California's Brown Act of 1953 and Florida's Government-in-the-Sunshine Law, or Sunshine Act, of 1967. Open government laws are often referred to as sunshine laws in reference to a quote from Justice Brandies who said, "Sunlight is said to be the best of disinfectants." Indeed, Washington's Public Disclosure Act, now the Public Records Act was sometimes called the Sunshine Law at the time of enactment.

Executive Sessions
"Executive session" is not expressly defined in the OPMA, but according to the Attorney General's Deskbook, the term is commonly understood to mean that part of a regular or special meeting of the governing body that is closed to the public. A governing body may hold an executive session only for purposes specified in statute and only during a regular or special meeting. Washington courts have held that because an executive session is an exception to the OPMA's overall provisions requiring open meetings, a court will narrowly construe the grounds for an executive session in favor of requiring an open meeting.

Statute requires that the presiding officer of a governing body must publicly announce the purpose for excluding the public from the meeting place, and the time when the executive session will be concluded. The executive session may be extended to a stated later time by announcement of the presiding officer. The announcement is to be given to those in attendance at the meeting. The announced purpose of the executive session must be one of the statutorily-identified purposes for which an executive session may be held and the announcement must contain enough detail to identify the purpose.

Executive sessions may be held for the following grounds:

to consider matters affecting national security;
to consider the selection of a site or the acquisition of real estate by lease or purchase when public knowledge regarding such consideration would cause a likelihood of increased price;
to consider the minimum price at which real estate will be offered for sale or lease when public knowledge regarding such consideration would cause a likelihood of decreased price. However, final action selling or leasing public property shall be taken in a meeting open to the public;
to review negotiations on the performance of publicly bid contracts when public knowledge regarding such consideration would cause a likelihood of increased costs;
to consider, in the case of an export trading company, financial and commercial information supplied by private persons to the export trading company;
to receive and evaluate complaints or charges brought against a public officer or employee;
to evaluate the qualifications of an applicant for public employment or to review the performance of a public employee;
to evaluate the qualifications of a candidate for appointment to elective office;
to discuss with legal counsel representing the agency matters relating to agency enforcement actions, or to discuss with legal counsel representing the agency litigation or potential litigation to which the agency, the governing body, or a member acting in an official capacity is, or is likely to become, a party, when public knowledge regarding the discussion is likely to result in an adverse legal or financial consequence to the agency;
to consider, in the case of the state library commission or its advisory bodies, Western Library Network prices, products, equipment, and services, when such discussion would be likely to adversely affect the network's ability to conduct business in a competitive economic climate;
to consider, in the case of the State Investment Board, financial and commercial information when the information relates to the investment of public trust or retirement funds and when public knowledge regarding the discussion would result in loss to such funds or in private loss to the providers of this information;
to consider proprietary or confidential non-published information related to the development, acquisition, or implementation of state purchased health care services as provided in statute; and
to consider, in the case of the life sciences discovery fund authority, the substance of grant applications and grant awards when public knowledge regarding the discussion would reasonably be expected to result in private loss to the providers of this information.

Summary of Bill:

The OPMA is amended to require audio recording of executive sessions. Such recordings must be verbatim accounts of the entire proceedings and the governing body must retain the recording for a period of two years. Recordings of executive sessions are public records not subject to public inspection and copying under the Public Records Act except by court order or unless authorized by the governing body.

In an action alleging a violation of the OPMA's provisions regarding executive sessions, the challenging party bears the burden of proof. If the challenging party supports its allegations with credible evidence, the court shall review the recording of the executive session in camera. As part of the in camera review, the court may make inquiries of the parties to fully and fairly resolve the issues before the court. The court may not divulge the contents of the recording to the plaintiffs or its counsel.

If after such review the court finds that the executive session was not in compliance with the provisions of the OPMA regarding executive session, it may order disclosure of those portions of the recording that are found to be not in compliance, subject to other exemptions as may exist in law. The remainder of the recording may not be disclosed.

Appropriation: None.

Fiscal Note: Available.

Effective Date: The bill takes effect 90 days after adjournment of session in which bill is passed.