Breach of Executive Session

Training for: Legal Notes

Question: Is it illegal to breach the confidentiality of an executive session, and if so, what’s the penalty?

Answer: Surprisingly perhaps, Maine’s Freedom of Access Act (FOAA) or “Right to Know” law does not explicitly prohibit disclosing the contents of an executive session to a non-participant, nor does it specify any penalty for doing so. There may be a reasonable expectation that all participants in an executive session will respect its confidentiality, but this assumption is neither imposed nor enforced by the FOAA itself.

This doesn’t mean, though, that a person who is the subject of an executive session has no legal remedy if confidential information is made public. Depending on the circumstances, the person may have grounds for a private civil lawsuit against those responsible for the disclosure. But if so, this is for the claimant to pursue privately if they wish, with their own attorney and at their own expense.

As for a board whose executive session is breached, if the offender is a member of the board itself, one appropriate response may be to convene another executive session, ideally with the board’s attorney, to reiterate the purposes of executive sessions and to emphasize not only the importance of discretion but also the risks of public disclosure, including potential personal liability for the offender. A board may also publicly censure or scold a member who breaches an executive session, though doing so has no legal consequences.

For much more about executive sessions, see MMA’s “Information Packet” on the Right to Know law, available free to members at www.memun.org. (By R.P.F.)

Question: Is it illegal to breach the confidentiality of an executive session, and if so, what’s the penalty?

Answer: Surprisingly perhaps, Maine’s Freedom of Access Act (FOAA) or “Right to Know” law does not explicitly prohibit disclosing the contents of an executive session to a non-participant, nor does it specify any penalty for doing so. There may be a reasonable expectation that all participants in an executive session will respect its confidentiality, but this assumption is neither imposed nor enforced by the FOAA itself.

This doesn’t mean, though, that a person who is the subject of an executive session has no legal remedy if confidential information is made public. Depending on the circumstances, the person may have grounds for a private civil lawsuit against those responsible for the disclosure. But if so, this is for the claimant to pursue privately if they wish, with their own attorney and at their own expense.

As for a board whose executive session is breached, if the offender is a member of the board itself, one appropriate response may be to convene another executive session, ideally with the board’s attorney, to reiterate the purposes of executive sessions and to emphasize not only the importance of discretion but also the risks of public disclosure, including potential personal liability for the offender. A board may also publicly censure or scold a member who breaches an executive session, though doing so has no legal consequences.

For much more about executive sessions, see MMA’s “Information Packet” on the Right to Know law, available free to members at www.memun.org. (By R.P.F.)