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Cohn, Gary
From: Sent: To: Subject: Andrews, Carol Friday, September 16, 2011 11:48 AM Cohn, Gary FW: Questions on OPMA

Attachments: AGGuidanceAttyCliPriv.pdf Gary, Forwarding my e-mail to Tim Ford and his response. Carol

From: Ford, Tim (ATG) [mailto:TimF@ATG.WA.GOV] Sent: Tue 9/13/2011 12:04 PM To: Andrews, Carol Subject: FW: Questions on OPMA

Carol Andrews, Below are my informal answers. Other attorneys may construe the laws differently. One more caveat, I am not authorized to provide legal advice to you, that should be provided by the districts attorney. I merely provide general information, technical assistance, and training on the OPMA. See RCW 42.30.210. Sincerely, Tim Ford Open Government Ombudsman Assistant Attorney General for Government Accountability Attorney General of Washington 1125 Washington St, SE Olympia, WA 98504 (360) 586-4802 timf@atg.wa.gov http://www.atg.wa.gov/OpenGovernment/Ombudsman.aspx
DISCLAIMER: This email is not intended or offered to provide legal advice or legal representation by the Office of the Attorney General to any recipient.

From: Andrews, Carol [mailto:carol.andrews@everettsd.org] Sent: Sunday, September 11, 2011 7:51 PM To: Ford, Tim (ATG) Subject: Questions on OPMA

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Mr. Ford, I am a Director for Everett Public Schools and have a few questions regarding incidents our Board has encountered in the last few weeks. As you are probably aware, a fellow Board member unilaterally released an attorney-client privileged document to the press and videotaped an executive session, subsequently releasing the videotape to the local newspaper and posted it on the internet. My questions: 1) Under any circumstances, is it proper for a Board member to release an attorney-client privileged document to the public? Is the release of the document a violation of the OPMA or an illegal act under Washington state law?

In general, The Ethics in Public Service Act prohibits a municipal officer from disclosing a document which contains confidential information gained by reason of the officers position. See Laws of 1994, ch 154 section 121, codified at RCW 42.23.070(4). A municipality includes districts which likely encompass school districts and educational service districts. A municipal officer is defined under RCW 42.23.020 and includes elected or appointed officers. I dont make any conclusions as to whether the document released to the Everett Herald was privileged or confidential. I understand that it is alleged to be confidential attorney client legal advice, and that there is some dispute as to whether the advice is general information available to the public. The Ethics in Public Service Act defines confidential to mean (a) specific information, rather than generalized knowledge, that is not available to the general public on request or (b) information made confidential by law. RCW 42.52.010(6). I am attaching some guidance from the Attorney Generals Office on the attorney client privilege and how it should be interpreted.
2) Is it a violation of the OPMA for a Board member to videotape an executive session without consent of the other attendees? Is the unauthorized videotaping illegal under Washington state law?

Citizens (not members of the board) have no right to video-tape an executive session. See AGO 1998, No 15. The OPMA is silent on whether board members may record executive sessions. The school board could adopt a policy prohibiting the video recording of its executive sessions by other members. In the absence of such a policy, there is no clear authority to prohibit the recording. In AGO 1998, No. 15 the author concluded that executive sessions are intended to be private. In a legal sense most executive sessions are not private but merely closed to the public. A governing body of a public agency that holds a lawful closed meeting conducts its business for the public and is not transacting business for personal gain or private advantage. See Ethics in Public Service Act, Laws of 1994, Chapter 154, section 1. An authorized closed executive session protects the deliberations of board members. However, the written performance review of the superintendent is most likely subject to disclosure under the Public Records Act because it is of legitimate public interest. See generally Spokane Research v. City of Spokane, 99 Wn. App. 452, 994 P.2d 267 (2000). Also, merely because an executive session is closed to the public does not mean that the documents discussed are automatically private or exempt from disclosure. See ACLU of WA v. City of Seattle, 121 Wn. App. 544, 554-558 (2004). The WA Privacy Act prohibits the recording of private conversations without consent. Ch 9.73 RCW. The Privacy Act doesnt define private conversation and the body of law construing the act comes from criminal cases where the defendant was unknowingly recorded and then alleges that the state

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violated their individual constitutional rights as a private citizen under the 4th amendment. I cant predict whether a court would view the conversations of public officials conducting the public business behind closed doors the same as private citizens in criminal cases. If the Privacy Act were to protect the discussions of board members in an authorized closed meeting as private, then consent is required before the conversation may be recorded. The Privacy Act is peculiar in that consent does not have to be express. Consent is considered obtained where one party has announced to all other parties that the conversation is to be recorded, and the announcement is also recorded. RCW 9.73.030(3).
3) Is the release of a videotaped executive session, whether obtained with consent or not, allowable under the OPMA and Washington state law?

The OPMA is silent on whether board members may record executive sessions, and whether such recordings may be released. If the executive session is recorded consistent with RCW 9.73.030(3) as discussed above, then I dont think the Privacy Act precludes disclosure. Assuming that the video tape is a public record, then the relevant question is whether the video tape is exempt from disclosure under the Public Records Act. The discussion may be confidential if it meets the definition under RCW 42.52.010(6) or if it falls within a statutory exemption from disclosure. The Public Records Act requires agencies to make available its records for inspection and copying unless a law exempts their disclosure. RCW 42.56.070(1). The AGs Office has determined that many exemptions are permissive and may be waived by the agency. See for example the analysis in AGO 1980, No. 1, and also WAC 44-14-06002. Only a majority of the board may vote to waive confidentiality in those instances, but as discussed above, a municipal officer may not disclose confidential information unilaterally. Yet as discussed above, merely because an executive session is closed to the public does not mean that the documents or recorded discussions are automatically private or exempt from disclosure.
4) For any act that is in violation of the OPMA, is a lawsuit in which the plaintiff prevails the only way to prove the violation?

Yes, I believe so. My role is not to conduct investigations and make legal conclusions as to whether a violation of the OPMA has occurred. My role is to provide general information, technical assistance, and to provide training on the provisions of the OPMA. See RCW 42.30.210.
5) If any of the above acts are in violation of Washington state law, how is the violation proved?

In most cases where a violation of the OPMA/Privacy Act/Ethics in Public Service Act is alleged, proof is required in a court of law.
Thank you in advance for your responses. You have provided very helpful training to our Board in the past but we continue to encounter new situations that require clarification. I understand this is informal advice only. Sincerely, Carol Andrews

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