In this era of WikiLeaks’ disclosure of secret State Department and military cables, the question of what is and what is not “confidential” government information has become more opaque.
Conflicting viewpoints on the issue of what is “confidential” also arise in the local government context, as reported in the February 28, 2011 edition of the Everett Herald: “Legality of disclosing executive session information not an easy call.”
The Everett Herald reported on the censure of an Everett School Board member for disclosing information from a closed, executive session about a potential building purchase. But, the newspaper noted there is a real dispute between the school board and the censured school board member about whether the information she discussed potential acquisition of an office building for multiple educational uses was already public knowledge.
The Everett Herald article points to a continuing dilemma for public officials in Washington, especially for an elected official who finds conflict between the official’s interest in wide ranging conversations with constituents, and the official’s duty to the office to which elected. Washington law expressly prohibits a public official from “disclosing confidential information gained by reason of the officer’s position.” RCW 42.23.070(4).
For elected board members, confidential information is most frequently obtained in a part of a meeting when in executive session under one of the reasons listed in RCW 42.30.110. Listed as the second of those reasons is for an executive session 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;” – the specific provision that is the subject the Everett School Board censure.
One can well understand that if a government’s interest in purchasing a specific building or parcel of land and its ultimate price limit is known, that this information may well cause the government and its constituents to pay more that it otherwise would. Thus the justification for an executive session in the first place and the parallel prohibition against disclosing confidential information all make sense. But what is and what is not confidential is often disputed, as illustrated by the Everett School Board controversy. This also highlights the common law and statutory requirements that the elected official’s first responsibility is to the agency, notwithstanding the interest in public communications. See, RCW 42.23. 070(3) (prohibiting a municipal officer from holding another position that would “require or induce” the official to disclose confidential information acquired by reason of the public office). Best practice for any governing board facing this dilemma is to explicitly identify in the executive session itself what it considers to be the particular elements that are and should remain confidential.