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Are personal e-mail addresses of local government officials and employees exempt from disclosure under the Public Records Act?

 

 

Based on the decision in Mechling v. City of Monroe, 152 Wn. App. 830 (2009), if personal e-mail addresses of local government officials and employees are contained in personnel or employment related records held by the public agency, the personal e-mail addresses are exempt from disclosure. However, if personal e-mail addresses of local government officials or employees are contained in e-mail messages of such public officials or employees discussing agency business, and a Public Records Act (PRA) request is made for the records, the personal e-mail addresses of such officials/employees are not exempt under the PRA.

The court in Mechling explains that an e-mail message is a "writing" under the PRA and "[e]-mail messages of public officials or employees are subject to a public records request if the e-mails contain information related to the conduct of government." Id. at 843-44 (internal citations omitted). The court concludes that what is currently RCW 42.56.250 "does not exempt disclosure of personal e-mail addresses used by elected officials to discuss city business." Id. at 847.

In Mechling, the requestor submitted to the city public records requests for e-mail messages of city councilmembers discussing city business. The city provided records and redacted certain information under (current) RCW 42.56.250, including redacting the personal e-mail addresses of councilmembers. The requestor took the position that personal e-mail addresses in e-mail messages used by city officials to discuss city business were not exempt from disclosure under the personal information exemption of the PRA (RCW 42.56.250).

The city interpreted the exemption in (current) RCW 42.56.250 regarding "public employment related records" to include "all records related to the work of a public official or public employee." Id. at 845. The court rejected this argument and held:

... the exemption [in RCW 42.56.250] only applies to the personal e-mail addresses contained in personnel or employment related records held by the public agency and does not exempt from disclosure personal e-mail addresses contained in the e-mail messages of public officials discussing city business.

Id. at 846 (emphasis in original).

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Can you provide some legal authority and examples related to a public hospital district board member discussing with the general public information that the board discussed in executive session?  

 

 

At issue here are confidentiality issues related to executive sessions. We have addressed this topic from different angles and the following is a summary of key points to consider.

Statutory Provisions

Regarding statutory provisions related to confidential information and executive sessions, the only reference specifically to confidentiality in the context of public hospital districts (PHDs) in the PHD statute, chapter 70.44 RCW, is in RCW 70.44.062. That provision is limited in scope and pertains to holding executive sessions regarding the status of clinical or staff privileges of a physician or health care provider in some circumstances and regarding deliberations of a quality improvement committee.

Note, on a related matter, that the federal Health Insurance Portability and Accountability Act of 1996 (HIPAA) regulates the use and disclosure of Protected Health Information, and there are also protections in Washington state law for health care information and records. See, e.g., chapter 70.02 RCW, chapter 70.41 RCW, chapter 42.56 RCW (Public Records Act). We recommend that you consult with your PHD's legal counsel to ensure your PHD has processes in place to protect such information from public disclosure.

More generally, many local governing bodies, including PHD boards of commissioners, use Robert's Rules of Order to govern the conduct of meetings. Note that Robert's Rules of Order, Newly Revised, 10th Edition, Chapter IV, Section 9 on Executive Sessions, provides that a member can be disciplined for violating the confidentiality of an executive session, although no specific penalty is set out.

Another possible avenue for dealing with a board member's breach of the confidentiality of an executive session is through RCW 42.23.070(4), which provides:

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.

Note that use of such information for personal gain is not required for a violation; mere disclosure is sufficient. Unfortunately, the term "confidential information" is not defined in chapter 42.23 RCW, and it is uncertain whether this would apply to information obtained in an executive session, although a good argument can be made that it does so apply. Previously, this statute defined "confidential information" to mean "such information as is declared confidential by other specific statutes." Since no statute declared information obtained in executive session to be confidential, this statute previously had no application to breaches of the confidentiality of an executive session. Now that the definition of "confidential information" has been removed from the statute, it may apply to this circumstance. However, there has been no case law or attorney general opinions on the applicability of RCW 42.23.070(4) to executive session confidentiality.

If RCW 42.23.070(4) does apply to information obtained in an executive session, the penalty provisions of RCW 42.23.050 would apply. RCW 42.23.050 provides in relevant part:

... Any officer violating the provisions of this chapter is liable to the municipality of which he or she is an officer for a penalty in the amount of five hundred dollars, in addition to such other civil or criminal liability or penalty as may otherwise be imposed upon the officer by law.

In addition to all other penalties, civil or criminal, the violation by any officer of the provisions of this chapter may be grounds for forfeiture of his or her office.

It is also possible that disclosure of confidential information obtained in executive session may constitute "misfeasance" or "malfeasance" in office or a "violation of the oath of office," which provide sufficient grounds for a recall petition under RCW 29A.56.110. (Recall efforts may be brought by a "legal voter"; the PHD itself could not initiate a recall drive.) However, we are not aware of a successful recall occurring on that basis. Though, a particularly egregious violation of confidentiality could potentially support a recall effort.

Note also that while board discussions in executive session may be considered by the board to be confidential, such discussions may not necessarily be confidential indefinitely. It may be that information obtained in an executive session can reasonably be disclosed at some later point, after the purpose for the executive session no longer exists.

Practical Guidance on the Importance of Maintaining the Confidentiality of Executive Sessions

From the perspective of why it is important for board members to maintain confidentiality regarding executive sessions, since the purpose of an executive session is to discuss confidentially matters that would be detrimental (to the PHD or to PHD personnel) to discuss in public, board members should not discuss publicly what was discussed in executive session without board approval or until public knowledge of the matter would no longer be detrimental to the PHD or its officials. For example, if the board discussed in executive session with legal counsel for the PHD pending or existing litigation against the PHD, revealing to the public after the session what was discussed could harm the PHD's litigation position. Otherwise, why would the board be meeting in closed session? Disclosing publicly what was discussed in executive session undermines the purpose of meeting in executive session.

Also, preserving the confidentiality of the executive session can promote effective discussion in closed session. If board members 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), board members may still not want what they said in closed session to be made public, particularly if it is presented out of context.

In addition to the litigation example above mentioned, a few additional practical examples may be helpful:

  • Under RCW 42.30.110(1)(b), an executive session is allowed "[t]o 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." This provision recognizes the importance of protecting the public purse by allowing the board to have frank and confidential discussions when it is considering lease or purchase of real estate.

  • Similarly, RCW 42.30.110(1)(d) allows an executive session "[t]o review negotiations on the performance of publicly bid contracts when public knowledge regarding such consideration would cause a likelihood of increased costs." This provision recognizes that taxpayer money is saved by reducing the potential for costs to increase in publicly bid contracts.

  • In the personnel context, RCW 42.30.110(1)(g) allows an executive session "[t]o evaluate the qualifications of an applicant for public employment or to review the performance of a public employee." This provision allows the board to thoughtfully discuss the performance of a PHD employee and protects the employee's privacy in such matters.

Given the above considerations, we think it is advisable for the board to adopt a rule that prohibits board members from discussing publicly what took place in executive session without prior board approval. A bright-line rule like that is easy to apply and avoids confusion. If the board 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. Such a rule would be in addition to the PHD having in place processes to protect health care information and records under HIPAA, chapter 70.02 RCW, chapter 70.41 RCW, and otherwise under state law, as above noted.

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Does a public hospital district have mortgage authority?

 

 

Yes, under certain circumstances. RCW 70.44.060(5), as amended by HB 2510/SB 6300 (effective June 10, 2010), explicitly authorizes a public hospital district issuing bonds in connection with a federal program providing mortgage insurance, including FHA mortgage insurance programs, to grant a lien on its property pursuant to a mortgage, deed of trust, security agreement, or any other security instrument allowed under applicable law.

In terms of why such authority is important to public hospital districts, the FHA is authorized to insure mortgage loans for the construction, rehabilitation, replacement, and equipping of hospital facilities, as well as the refinancing of existing debt. In some situations, mortgage insurance obtained from the FHA or another federal agency will result in reduced financing costs for participating hospitals, and will make possible financing options that would otherwise not be available.

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Can a public hospital district participate in the state local option capital asset program?

 

 

Yes. Public hospital districts can participate in the local option capital asset lending program through the State Treasurer's Office. The program allows public hospital districts and other local governments to finance equipment or real estate needs through the State Treasurer's Office subject to existing debt limitations and financial considerations. This option allows public hospital districts and other local governments to use the State Treasurer's Office pooled financing program for voter approved bonds payable from excess property tax levies. Authority to use the program derives from SB 6218/HB 2451 (effective June 10, 2010), which impacts: RCW 39.94.020(2), (4); RCW 39.94.030(2)-(4); and RCW 84.52.056(1)-(4).

In terms of background, the legislature in 1989 created a program which combined state agency borrowing into larger offerings of securities in order to reduce the cost of financing. In 1998, the legislature expanded the program to allow local governments to participate, thereby lowering their finance costs. However, prior to the enactment of SB 6218/HB 2451 in 2010, local governments (including public hospital districts) that received voter approval to issue bonds payable from excess property tax levies were ineligible to use the program. Effective June 10, 2010, public hospital districts and other local governments are eligible to use the program.

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Can an agency respond to a public records request by providing an internet address and link to the specific record?

 

 

Yes, if certain requirements are met. Under RCW 42.56.520 of the Public Records Act (PRA), an agency must respond to a request for records within five days by either: (1) providing the record; (2) acknowledging that the agency has received the request and providing a reasonable estimate of the time the agency will need to respond to the request; or (3) denying the request. Due to a change to the PRA made in 2010, agencies have a fourth option in responding to a request for records: an agency can provide an internet address and link on the agency's web site to the specific records requested. However, if the requester notifies the agency that he/she cannot access the records through the internet, the agency must provide copies of the record or allow the requester to view copies using an agency computer.

The internet address and link option was enacted through SSB 6367/HB 2582 (effective June 10, 2010). Additional changes to RCW 42.56.520 enacted in 2010 encourage agencies to make commonly requested records available on agency web sites, and provide that agencies, in making records available online, should encourage members of the public with computer access who can access an agency record on its web site to do so in order to preserve taxpayer resources by accessing records online.