BILL REQ. #:  Z-1018.1 

Read first time 01/29/08.   Referred to Committee on State Government & Tribal Affairs.

     AN ACT Relating to executive session recordings; amending RCW 42.30.110; and creating a new section.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION.  Sec. 1   (1) The legislature finds that some of the most important deliberations by public bodies occur in closed executive sessions with no requirement in law that there be kept a verbatim record of the discussions. Recording executive sessions will allow current and future governing members to review the history of issues that have come before the governing body, and for use of the governing body, to memorialize legal or other advice provided in executive session.
     (2) The purpose of this act is to encourage governing bodies to strictly comply with the rules governing executive sessions and promote the public interest by creating greater governmental accountability in the use of executive sessions. However, it is not the purpose of this act to inhibit full and robust discussions of issues relating to permissible subjects for consideration in executive sessions.

Sec. 2   RCW 42.30.110 and 2005 c 424 s 13 are each amended to read as follows:
     (1) Nothing contained in this chapter may be construed to prevent a governing body from holding an executive session during a regular or special meeting:
     (a) To consider matters affecting national security;
     (b) 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;
     (c) 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;
     (d) To review negotiations on the performance of publicly bid contracts when public knowledge regarding such consideration would cause a likelihood of increased costs;
     (e) To consider, in the case of an export trading company, financial and commercial information supplied by private persons to the export trading company;
     (f) To receive and evaluate complaints or charges brought against a public officer or employee. However, upon the request of such officer or employee, a public hearing or a meeting open to the public shall be conducted upon such complaint or charge;
     (g) To evaluate the qualifications of an applicant for public employment or to review the performance of a public employee. However, subject to RCW 42.30.140(4), discussion by a governing body of salaries, wages, and other conditions of employment to be generally applied within the agency shall occur in a meeting open to the public, and when a governing body elects to take final action hiring, setting the salary of an individual employee or class of employees, or discharging or disciplining an employee, that action shall be taken in a meeting open to the public;
     (h) To evaluate the qualifications of a candidate for appointment to elective office. However, any interview of such candidate and final action appointing a candidate to elective office shall be in a meeting open to the public;
     (i) 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.
     This subsection (1)(i) does not permit a governing body to hold an executive session solely because an attorney representing the agency is present. For purposes of this subsection (1)(i), "potential litigation" means matters protected by RPC 1.6 or RCW 5.60.060(2)(a) concerning:
     (((A))) (i) Litigation that has been specifically threatened to which the agency, the governing body, or a member acting in an official capacity is, or is likely to become, a party;
     (((B))) (ii) Litigation that the agency reasonably believes may be commenced by or against the agency, the governing body, or a member acting in an official capacity; or
     (((C))) (iii) Litigation or legal risks of a proposed action or current practice that the agency has identified when public discussion of the litigation or legal risks is likely to result in an adverse legal or financial consequence to the agency;
     (j) 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. However, final action on these matters shall be taken in a meeting open to the public;
     (k) 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;
     (l) To consider proprietary or confidential nonpublished information related to the development, acquisition, or implementation of state purchased health care services as provided in RCW 41.05.026;
     (m) 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.
     (2) Before convening in executive session, the presiding officer of a governing body shall 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.
     (3)(a) A governing body holding an executive session under this subsection shall make a verbatim audio recording of the complete executive session and retain the recording for a period of two years. Such recordings are public records not subject to public inspection and copying under chapter 42.56 RCW except by court order as specified in (b) of this subsection, or unless authorized by the governing body.
     (b)(i) In an action under this chapter alleging a violation of the executive session provisions in this section, a party challenging the lawfulness of the executive session bears the burden of proof.
     (ii) If the party challenging the lawfulness of the executive session supports its allegation with credible evidence, supported by declaration or affidavit, the court shall review the entire verbatim audio recording in camera. As part of the in camera proceeding, without divulging the contents of the tape to the plaintiff or its counsel, the court may make inquiry of the parties, as necessary, to fairly and fully resolve any issues before it.
     (iii) After such review, if the court finds that the executive session was not in compliance with the provisions of this chapter related to such session, it may order disclosure of only those portions of the verbatim audio recording of the executive session found not in compliance, subject to such other exemptions as may exist in law. The remainder of the verbatim audio recording found to comply with this chapter shall not be disclosed.