Local Open Government Blog : Open Government Law : Foster Pepper Law Firm : Northwest, Seattle, Spokane, Portland Lawyer & Attorney

Arkansas:

The Arkansas legislature is considering a bill that would make all information about gun owners exempt from disclosure.  The Governor opposes the bill, but agrees some personal information (address, phone number, birth date) should be exempt.  As noted before on this blog, all handgun licensing information is exempt under Washington law. 

California :

City of San Diego public employees will be producing their calendars in response to a public records request, according to this article in the San Diego Union-Tribune.  The newspaper is also blogging about its efforts to obtain records and has created a database for the officials' calendars. 

Under Washington law, public employees' calendars are subject to disclosure, subject to any applicable exemptions.  One wrinkle in Washington law -- if the employee also includes personal items, then the agency may be able to redact the personal entries.  See RCW 42.56.230(2) & Yacobellis v. City of Bellingham, 55 Wn. App. 706, 712 (1989) (raising but not addressing issue of personal information on calendars).   But for public employees who want to ensure their privacy is protected, the better practice is to not add personal items to the employer's calendar. 

Kentucky and West Virginia Courts:

The Chief Justice of the Kentucky Supreme Court is posed to issue new rules that may subject state court administrative records to Kentucky's open records law. 

The West Virginia Supreme Court has accepted review of a case that will determine whether the Justices' own emails are subject to the state's open records law. 

In Washington, the Supreme Court held in 1986 that courts are not "agencies" under the Public Records Act, making court records not subject to the PRA.  See Nast v. Michels, 107 Wn.2d 300 (1986). 

NOTE FOR FULL DISCLOSURE:  In a case set for oral argument before the Washington Supreme Court on June 9, 2009, Foster Pepper will be defending the Nast decision.  The appellant in the pending matter before the Court is arguing that Nast should be narrowly interpreted, making most court records subject to disclosure.  We will post links to the briefs in that case once the briefs are available on the Supreme Court website.

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The title of this article says it all "Openness is basic to democracy." 

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UPDATE 1

ProPublica, an investigative journalist site, has collected links to all of the States' recovery sites.   

San Francisco has started its own recovery site. 

Finally, a private entity has launched "Recovery.org" to track stimulus spending. 

Original post 3/4/09

As noted by Brad Shannon in the Olympian, the State has followed the federal government's lead to set up a website to track the federal stimulus dollars that flow into the State  It's called "Recovery.wa.gov."  Here's Governor Gregoire's Executive Order creating the site.

Washington is among the 14 states that have launched "recovery.state.gov" sites.

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Federal government:

U.S. Attorney General Eric Holder has recently issued this memorandum for the implementation of President Obama's January 21 FOIA directions.  All of President Obama's efforts are nicely highlighted in this editorial in The Daily News, from Longview, Washington. 

A recent study of freedom of information laws throughout the world found that the United States has one of the highest ranked freedom of information laws in the world.  This was before President Obama's recent initiatives.

California:

In a recent article, the Sacramento Bee, reported on the open government issues that arise from a mayor using "volunteer" private help.  The article notes that under California law, it is "unclear about whether the emails, text messages, voicemails and other writings produced on non-City equipment and property are public records."

Under Washington law, every record that (1) is related to the conduct of government and (2) is "prepared, owned, used, or retained" by a government is a public record. RCW 42.56.010(2).  Thus records related to the conduct of government that are located on non-public agency equipment will be still be public records as long as the records are used by the agency. 

Maryland:

The Maryland general assembly (its lower house) has just passed new legislation that purports to subject the Maryland legislature to the state's public records and open meetings laws. According to at least one legislator, however, the changes actually make the legislature more opaque. For public records, the new legislation would exempt all emails to and from legislators.  Under current law, some of these emails may have to be disclosed.  For meetings, legislation allows party caucuses, budget meetings between party leaders and lunch meetings with the governor to remain private. These exceptions authorized by the new law may allow legislators to make important decisions outside of the public eye. 

In Washington, the laws permit even greater legislative secrecy.  As noted in this post, the Washington Legislature has defined "public records" to exclude all of a legislator's records. Likewise, the Legislature has excluded itself from the definition of "public agency" in the Open Public Meetings Act, meaning that none of its meetings are subject to that law.

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In the latest Open Government Advisor Column on Municipal Research and Services Center website, Foster Pepper's Ramsey Ramerman discusses this new Public Records Act court opinion:

In a recently published opinion, Parmelee v. Clarke, -- Wn. App. --, 2008 WL 5657802 (publication ordered Feb. 2009), Division II of the Court of Appeals gave teeth to the Department of Corrections' Public Records Act procedures. The Department's procedures specifically identify the Public Records Officer and provide that all requests should be sent to that officer. The Court held that, because the requester had actual knowledge of those procedures, the requester was required to follow those procedures and make public records requests to the identified officer. Thus, the court dismissed the requester's claims that were based on requests made to other persons.

Click here for the full article on the MRSC website.

Here are links to other open government articles by Foster Pepper available on the MRSC website:

January 2009 Open Government Advisor:
Supreme Court Reverses the LARGEST Court-Assessed Public Records Act Penalty in Washington State History – Because it was TOO SMALL: What Agencies can Learn

February 2009 Open Government Advisor:
Supreme Court Underscores the Requirement to Produce an Exemption Log under the Public Records Act

November 2008 Council/Commissioner Advisor:
Five Issues You Should Consider Before You Decide to Use Your Personal Email Account or Personal Computer for Official Public Business (and five ideas to help ensure that use is transparent)

December 2006 Council/Commission Advisor:
The Open Public Meetings Act and Electronic Communications
 

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As noted by Brad Shannon in this Olympian article  the Sunshine Committee took testimony on a proposal by Committee chair and elected Seattle City Attorney Tom Carr to remove the "exemption" that makes many legislative records exempt from disclosure.  The Committee hopes to vote on a proposal at the next meeting.  See the post below for more on the exemption.  The article quotes Foster Pepper Public Disclosure Team chair Ramsey Ramerman, who is also a member of the Sunshine Committee. 

Here are editorials from the  Tacoma News Tribune and the Olympian on the exemption. 

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Update 3

As noted by the Seattle Times, SSB 5130 -- the prisoner injunction bill -- is now law.  It passed the Legislature and was signed by Governor Gregoire Friday, the last day of Sunshine Week.  Because the law contains an "emergency" clause, it became effective immediately upon being signed. 

Update 2

As hinted at by Greg Overstreet over at Og-Blog, the Olympian's position in Friday's editorial in support of the prisoner access bill is different from the Olympian's position in an editorial this summer.  In that earlier editorial, the Olympian opposed the Attorney General's efforts to deny prisoner access to the PRA. But last summer, the the Attorney General was arguing for a complete bar on access for prisoners, while SSB 5130 only allows jurisdictions to deny access if they first prove the prisoner is abusing the PRA. In short, the issues are different and the Olympian's current position reflects a more balanced approach to the issue.

Here's an AP article on the bill that again highlights the challenges the Department of Corrections faces because of Parmelee's abuse..

Updated 1

Here is the February 27 editorial from the Olympian supporting the prisoner access bill.  

It's unusual for a newspaper's editorial board to support legislation limiting access to public records. But we find ourself in that position on  Senate Bill  5130  and House Bill 1181.

Original Post

As noted in these two articles from the Seattle Times and the Seattle Weekly, pending legislation  - SSB 5130 - that would allow courts to bar prisoners from making public records requests is making its way through the House and Senate in Olympia.  The bill, which seems to have momentum, would only apply to prisoners who are using the Public Records Act to harass public employees.

Prisoners may have many legitimate reasons to seek public records, and the legislation is not aimed at barring legitimate requests.  But some prisoners, most notoriously Allan Parmelee — doing 17 years for firebombing two attorneys’ cars – have developed a cottage industry of making requests in hopes of tripping up agencies and intimidating public employees.  Here’s an ABA article describing his exploits and abuse of the PRA.  A Google search for "Parmelee" and "public records" will provide many more details. 

Taxpayers have spent well over $100,000 to subsidize Parmelee’s public records business so Parmelee can intimidate and harass.  This type of abuse in no way typifies your average user of the Public Records Act, but it is not unique. Abusive requests hurt transparency by diverting resources.  Toby Nixon, the President of the Coalition for Open Government, notes another risk to transparency, arguing:

"If we don't give the DOC and possibly other agencies the ability to deal with Allan Parmelee, it ends up poisoning the situation for everyone else," Nixon said.

Transparency is not served by the abuse of the PRA.  But as drafted, the PRA can easily be abused, particularly if someone is interested in harassing a government agency or public employees.  The prisoner-injunction legislation is narrowly tailored to address one of the abuses without limiting transparency under the PRA. 

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This recent Olympia editorial highlights the fact that Legislators’ emails are not subject to the Public Records Act.

But there is no simple “legislative exemption” in the PRA. Instead, you have to look at two statutes. 

It starts with the definition of “public record” in RCW 42.56.010(2). That definition provides that “public records means legislative records as defined in RCW 40.14.100.” 

The definition of “legislative record” in RCW 40.14.100 then expressly excludes “reports or correspondence made or received by or in any way under the personal control of the individual members of the legislature.” In other words, records held by individual legislators, including their emails, are not “legislative records” and thus not “public records.”

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As this article in the Seattle Times notes, the Kansas legislature is currently considering legislation to review 30 of the exemptions to its public records laws (Title 42).  Kansas law mandates that the legislature review all exemptions every five years.

Washington law does not require the Legislature to review Public Records Act exemptions.  Instead, the Public Records Act includes a provision that has created the Sunshine Committee, which has been tasked to review all 365+ exemptions.  The committee's unanimous recommendations -- contained in SB 5295 -- are on target to pass this session.  But there are also two bills before the Legislature that  would either suspend or eliminate the Sunshine Committee:  SB 5588 and  SB 5994.    

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March 15 - March 22 is Sunshine Week, where we honor our open government laws. 

Thanks to Greg Overstreet over at theOg-Blog for leading me to this great slide show of open government editorial cartoons the TNT is running to celebrate. 

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As AmLaw Daily reports, disgraced former Detroit Mayor Kwame Kilpatrick has filed suit against the telecom company that stored his infamous text messages that were deemed to be public records and directly lead to the former mayor spending 99 days in jail for perjury. 

This lawsuit follows a Ninth Circuit decision upholding a civil rights lawsuit by a police officer who sued the city he worked for after his text messages sent from his city-issued phone were released, even though the text messages were "public records."  Quon v. Arch Wireless, 529 F.3d 892 (9th Cir. 2008). 

The key fact in the Quon case was that the City had created a reasonable expectation of privacy by failing to monitor text messages or limit personal use.  If a public agency allows the personal use of text messages, or even emails, the agency must make sure employees know those messages will be monitored to ensure the employees do not have a reasonable expectation of privacy in those messages. 

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 As noted by the FOI Advocate Blog, President Obama has funded a FOIA ombudsman position at the National Archives.  The position was not funded by the last administration. 

Washington State has had an Open Government Ombudsman position since 2004, when the position was created by Attorney General Rob McKenna. 

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On Monday, March 9th's Colbert Report, Stephen Colbert presented an editorial on an open government story from Tennessee.  There, a Memphis newspaper has published an on-line database listing people with concealed weapons permits.  Colbert satirically rails against on-line access to public records because of a claimed invasion of privacy.  While Washington has similar database sites for information on public employees, such as for salary information, Washingtonians with concealed gun permits have an specific PRA exemption, RCW 42.56.240(4) & RCW 9.41.070 to protect certain privacy interests.   Thanks to the Open Records blog for the lead.

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As reported on the Og-Blog, Attorney General Rob McKenna has called for an initiative to reform open government in Washington State.

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SECOND UPDATE 3/12

Sam Taylor at the Bellingham Herald has posted an update on his blog about this case -- the requester filed suit before the City could file.  The post cites to the earlier post on this blog.

UPDATE

Greg Overstreet over at Og-Blog provides a different perspective, at least implying that allowing agencies to sue might discourage requesters from making requests.

Washington law provides that public records must be promptly provided, with limited exceptions.

So make a public records request.

And get sued by the government.

This story from the Bellingham Herald describes what the City of Bellingham is doing.

What this argument overlooks is that Bellingham or any other public agency has absolutely no motivation to sue requesters – and every reason not to sue requesters – unless the agency believes the matter is very likely going to end up in court no matter who files suit.

Why? If an agency sues and the requester wins, the agency not only has to pay its own costs, it also will likely have to pay the requester’s attorney fees and costs, along with the daily penalty. But if the agency wins, the agency cannot recover attorney fees from the requester. Either way, the agency will have to pay for at least its half of the litigation costs. The only “benefit” to an agency filing suit is to limit daily penalties by trying to have the issue resolved promptly.

Agencies have better ways they can use taxpayer dollars to serve the public than suing requesters.  If the requester is not going to file a lawsuit, the agency will not be subject to attorney fees, costs and penalties. So an agency has no reason to expose itself to those potential costs unless the agency has a strong basis for determining that the requester will file suit if the agency does not.
 

ORIGINAL POST

Why would an agency file a suit against a public records requester?  To save taxpayer dollars. 

As noted in this article in the Bellingham Herald, the City of Bellingham City Council has voted to seek a court ruling that certain records are exempt.  The requester is an attorney who is already planning to sue the City over an accident, so the records dispute was destine for court.  By being proactive, the City is saving taxpayer dollars by seeking a quick resolution that will minimize daily penalties if the court rules the City was not correct in its interpretation of the Public Records Act.

More and more frequently, attorneys and others are using the Public Records Act, rather than discovery, to obtain records as part of a lawsuit.  Why?  The PRA provides for daily penalties and mandatory attorney fees.  The penalties and fees, of course, are paid by taxpayers.  All the more reason that cities like Bellingham are taking proactive steps to minimize this taxpayer liability.

Note, the Herald article quotes Foster Pepper attorney Ramsey Ramerman. 

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The New Mexico legislature is considering a bill that would subject the legislature to New Mexico's open meetings law.  In Washington state, the Legislature has exempted itself from the Open Public Meetings Act and the Public Records Act.  NPR's Austin Jenkins recently wrote an article about his difficulties obtaining legislative records from the Washington State Legislature.

In Iowa, the governor has agreed to use his official state-sponsored email account, rather than a private email account after being criticized for trying to avoid the state's open records law.   In Washington State, it would not matter whether the governor was using a private account or state account -- her emails would still be public records.  Here is a link to an article "Five Issues You Should Consider Before You Decide to Use Your Personal Email Account or Personal Computer for Official Public Business" that addresses this issue under Washington State law.

The CIA has admitted destroying 92 interrogation videos after an ACLU Freedom of Information Act lawsuit forced the CIA to account for the tapes.  In 2007, the Washington Supreme Court has ruled that surveillance videos are public records that may be subject to disclosure.  See Lindeman v. Kelso School District, 162 Wn.2d 196 (2007).

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UPDATE 3/6

Here is the March 18 Sunshine Committee agenda:

Public Records Exemptions Accountability Committee

Special Meeting

Conference Room 148

2425 Bristol Court S.W., Olympia, WA

March 18, 2009, 9:00 a.m. – 1:00 p.m.

1)      Call to Order

2)      Adoption of agenda for March 18, 2009.

3)      Review and approval of November 12, 2008 meeting minutes.

4)      Discussion of bills pending in Legislature - Senate Bills 5294,5295, 5995, House Bill 2087

5)      Possible modifications to Exemptions Criteria Worksheet and Schedule of Review.

        – Committee discussion

        -- Possible vote

6)      Bylaws – Possible amendments to Article V: Meetings and Article VI: Citizen Input.

7)      RCW 42.56.230(1) -- Personal information in files for students in public schools, patients or clients of public institutions or public health agencies, or welfare programs.

RCW 42.56.230(2) -- Personal information in files on employees, appointees, or elected officials if disclosure would violate their right to privacy.

RCW 42.56.250(3) – Address, phone numbers, email addresses, SSNs, etc., of public employees or volunteers held by public agencies.

--Discussion on the formation of a subcommittee to study privacy exemptions, to implement motion approved at the November 12, 2008 meeting.

8)      RCW 42.56.010(2) Legislative Records

--Public comment.
--Committee discussion.

9)      RCW 42.56.330(7) – Personally identifying information of persons who use transponders and other technology to facilitate payment of tolls.

-- Staff  presentation.

--Public comment.

-- Committee discussion.

10)     RCW 42.56.330 (8)  -- Personally identifying information on an ID card that contains a chip to facilitate border crossing.
--Staff  Presentation.

--Public comment.
--Committee discussion.

11)     RCW 42.56.330(2) – Residential addresses and phone numbers in public utility records

RCW 42.56.335– Law enforcement access to customer records held by a public utility district or municipality owned electrical utility.

--Staff Presentation.

--Public comment.
--Committee discussion.

12)     RCW 42.56.330(6) – Information obtained by governmental agencies and collected by the use of a motor carrier intelligent transportation system or comparable information equipment.

--Staff presentation.

--Public comment.

--Committee discussion.

13)     RCW 42.56.330(1) – Valuable commercial information, trade secrets, etc., supplied to the Utilities Transportation Commission

RCW 80.04.095 – Utility records filed with the Utilities Transportation Commission containing valuable commercial information. 

--Staff presentation.

--Public comment.

--Committee discussion.

14)     Adjourn.

Original Post

The next Sunshine Committee meeting is set for Wednesday, March 18, 2009.  We will post the agenda once it's available. 

It will be from 9 a.m. - 1 p.m. at the Attorney General's Bristol Court Building:

2425 Bristol Court SW
Conference Room 148
Olympia, Washington

Here is the Sunshine Committee's 2008 Report to the Legislature.

Legislation with the Sunshine Committee's unanimous recommendations, SSB 5295 , was voted out of committee.  Its sibling bill with the non-unanimous recommendations, SB 5294, (both sponsored by committee member Senator Adam Kline) did not move from committee. 

The Sunshine Committee itself is facing possible extinction.  SSB 5994 would eliminate the Committee in June 2010, while SSB 5588 would suspend the committee until 2011.  Another bill that would have immediately terminated the committee, SB 5119, is not moving forward.

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