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Thursday, June 28, 2007

Port of Seattle Taping Executive Sessions--Are the Tapes Disclosable?

The Port of Seattle proposes a novel open-meetings policy: "'All executive sessions shall have minutes taken in the form of an electronic recording to be held in confidence by the port's General Counsel'" but later adds "'except legal issues discussed with the port counsel present.'"

Here's the problem the Port faces. Government records such as the tape are presumed to be open to the public. Gray areas in definitions are interpreted by a court in favor of disclosure; that is, the tie-breaker goes to the records requestor. "Minutes" of a closed executive session can be withheld. But "minutes" mean the written summary of the meeting--a tape of the whole meeting seems different than mere "minutes." Furthermore, the Legislature is very good at meticulously detailing exactly what it means, so when it said "minutes"--but not "tapes"--can be withheld it must have meant something. And the tie-breaker in this debate goes to the records requestor.

As for the Port's apparent attempt to shield the tapes from public disclosure solely because they are kept in the Port attorney's office, good luck. The P-I story above quotes Allied Law Group's Greg Overstreet on this. He describes the "potted plant" doctrine, which provides that an attorney merely sitting in a meeting like a potted plant cannot turn conversations into nondisclosable privileged communications. There is much more to the attorney-client privilege than the mere presence of an attorney.