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.
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.