Behind closed doors: Should city council keep minutes for private sessions?
Last updated 5/12/2016 at Noon
The British Prime Minister was recently caught making comments about “corrupt countries” when he presumed he was having a private conversation with the Queen of England. A microphone picked up the conversation, and the comments were leaked to the public.
Private meetings of the Edmonds City Council also have been recorded not by a microphone, but by the city clerk and it’s causing some issues.
City Attorney Jeff Taraday told councilmembers on Tuesday that a 1996 council resolution to establish a procedure for writing and retaining minutes from private council discussions creates a “false sense of confidentiality” among councilmembers. The City Clerk’s office has recommended that the council repeal the resolution.
The council holds private, confidential discussions, called executive sessions, to discuss matters ranging from litigation to real estate purchase and sale agreements to human resources and employee issues, among others.
Washington State Law allows city governments to hold private executive sessions under the Open Public Meetings Act, provided certain criteria are met. The law does not require meeting minutes to be taken.
By taking minutes, Taraday said the council is opening up public access to some, but not all, of the discussions.
As a recent example, Taraday said the meeting minutes kept while councilmembers discussed the merits of council candidates were subject to disclosure laws of the Public Records Act.
“We have actually had to release public records under that exact scenario,” he said.
Another issue is calling the meeting notes “minutes.”
Taraday said minutes are notes that are taken during a meeting, reviewed by the governing body, and approved. The city’s executive session notes are never reviewed or approved, therefore, they are not minutes, he said.
Taraday also said if the council decides to continue taking minutes, it should reevaluate the purpose of doing so. It should clarify the intent, he said, and consider providing a purpose other than serving as a public record.
Many of the sessions involve discussions about litigation or potential litigation, and Taraday said those conversations are protected by attorney client privilege.
“There’s no limit to the duration of attorney client privilege,” Taraday said. “My concern and what we’ve noticed in practice is there are citizens who, because of the language used in the resolution, they expect that someday they will be able to read these executive session notes.”
However, that is not the case. Taraday said the attorney client privilege does not expire, so some of the records would not be releasable under the Public Records Act.
City Clerk Scott Passey said requests for the executive session records tie up the clerk’s office, and the cost versus benefit of doing so should be looked at by the council.
Passey told the council that there has been an “uptick” in the number of executive sessions, which has impacted the office’s workload and resources.
In a meeting memo, Passey said for the average executive session, the total amount of time spent to produce the minutes is about four times the length of the meeting.
It will take the clerk’s office four hours to review, clarify, print and archive minutes for a one-hour session.
The clerk’s office is working on a citizen’s request to provide executive session minutes from 1996 to 2016. It has spent over 50 hours on the request thus far.
“That’s 20 years worth of records that we’ll have to parse,” he said, “and will likely take us months to complete.”
Passey sent an email to other cities to see if they also take minutes during executive sessions.
He received 47 responses from both cities large and small, he said. Respondents include the cities of Seattle, Tacoma, Everett, Bellevue, Omak, Prosser and “everywhere in between.”
He said they all responded with a “No.” Some, however, do record who was present, the topic and the corresponding applicable state law.
The council will discuss the issue further at its May 24 meeting. The meeting will be held at 7 p.m. in the Council Chambers at the Public Safety Complex, 250 5th Ave. N.