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March 12, 2008
Sunshine makes government stronger, more accountable

By Attorney General Rob McKenna
Special to The Olympian for Sunshine Week

As a former King County Councilmember and now as the state’s Attorney General, I’ve encountered hundreds of hardworking and dedicated public servants who bring a passion for good government to work with them every day.

While much of the work we do is available for inspection by the public through the Open Public Meetings Act or through the Public Records Act, some of that work is also highly sensitive. Because of this, the Public Records Act provides exemptions for specific types of personal information and the Open Public Meetings Act (OPMA) allows elected officials to hold closed-door discussions regarding specific issues such as pending litigation, personnel matters and real estate transactions.

When we take jobs in state or local government, government officials do so with the understanding that the public is our employer. Ultimately, we are all governed by the sentiments of voters more than 30 years ago who said “the people, in delegating their authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know.  The people insist on remaining informed so they may maintain control over the instruments they have created.”

That’s why I was puzzled at the strong opposition state auditor Brian Sonntag and I faced when we requested legislation to require an audio record of executive sessions. This legislation not only improved accountability, but provided government an additional protection against claims of improper executive sessions and gave officials a back-up document should disputes arise later.

Last year, The Seattle Times reported that Port of Seattle commissioners had argued over whether some of them, in executive session, had promised their outgoing Port Executive a severance package upon retirement. According to The Times, there was a document, but commissioners disagreed on exactly what it meant. Had our legislation been law, commissioners could have returned to their recording of that session for an easy answer.

The Port of Seattle is not the only jurisdiction facing such disputes and an audio recording could save thousands of dollars in legal fees and arguments when these disputes arise.

Throughout the legislative process, opponents made arguments decrying the cost of recording and storing audio of their executive sessions.  They warned that recordings could be stolen or leaked and they spread misinformation about how and when the information on these recordings could be legally released to the public.

We carefully crafted this bill to put minimal burden on government, while providing the maximum benefit. You can purchase a digital recorder with capacity to hold 130 hours of audio for just $60. At roughly 1” by 4” in size, it takes up less room than a deck of cards, making it easy to lock up to prevent thefts or leaks. The $60 recorder we priced even includes its own storage software to allow the audio to be removed from the recorder and stored on a secure server if desired.

Under our bill, executive session recordings were protected unless a judge found credible evidence of an executive session violation.  Lawfully authorized conversations would remain confidential, such as advice given by attorneys related to pending and actual lawsuits. The idea of tape recording executive sessions may seem new, but it promotes accountability much as minutes and memos currently memorialize legal advice and official business.   An audio tape of valid executive sessions would legally be treated no differently than legally protected memos.  Valid discussions would remain exempt while promoting accountability and good government.

Public officials conducting public business are accountable to the public even when discussing topics that are exempt from public disclosure.  Recording executive sessions would provide officials with important proof of sensitive discussions that could help them when disputes arise in the future, saving valuable time and money for government and the taxpayers they serve.

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