Light blogging
Over the next two weeks, I will be out of the office for various open government trainings. During this time, will not be posting as often as I do currently, but certainly expect to have much to discuss when I return.
Seattle Times: "No more closed-door Seattle City Council budget briefings"
Update (April 22, 2009) -- Happy Earth Day
In this editorial, Seattle City Attorney Tom Carr responds to an earlier editorial about his role in the "closed door" meeting controversy. The two editorials serve to highlight an often overlooked point -- the public's perception of a government's compliance with open government laws can be more important than the government's strict compliance with those laws. One of the primary purposes of open government laws like the Open Public Meetings Act and the Public Records Act is to build public trust. If the public thinks the government is trying to keep something secret that should be public, it builds distrust.
So were the proposed closed-door meetings legal? The Supreme Court has repeatedly held that there is no violation of the Open Public Meetings Act when less than a majority of the governing body meet. See, e.g., In re Recall of Beasley, 128 Wn.2d 419, 427, 908 P.2d 878 (1996). It's worth noting that the provision in the Attorney General's Open Government Internet Manual cited by the Og-Blog in its post on this controversy is off the mark, at least to the extent that it suggests that it is an open question about whether the OPMA applies when less than a majority of the government body is involved. The current version of the Internet Manual fails to recognize the Supreme Court's unambiguous decision in Beasley, even though that case was decided ten years after the legislative change cited in the Internet Manual.
There is one possible exception, however, that has not been addressed by the Supreme Court. When a majority seeks to make decisions through a series of meetings, none of which include a majority but collectively do involve a majority. This may amount to an illegal "serial meeting." An appellate court, in holding that an email exchange amounted to an illegal meeting, has recognized this concept, but no appellate court has squarely addressed the issue. See Wood v. Battleground School Dist., 107 Wn. App. 550, 27 P.3d 1208 (2001). Wood also recognizes that the passive receipt of information by a majority does not violate the law. For more on the Wood case, see this article.
But whether the meetings were legal is now a moot question. The Mayor and City Council opted to build trust by agreeing to open its doors, even if the meetings would have been legal.
Original Post
As of Friday afternoon, April 10, 2009, the Seattle City Council and Mayor have decided not to hold closed-door budget meetings, according to this Seattle Times article.
This is a change from the City's earlier decision to hold close-door meetings, which was criticized by the Seattle Times in this article and editorial as possibly violating the Open Public Meetings Act.
Courts and public records laws
UPDATE
As promised, here is a link to the briefs in City of Federal Way v. Koenig, which will require the Supreme Court to reconsider its 1986 decision that exempted courts from the Public Records Act. This is one of two Public Records Act cases Foster Pepper will be arguing on June 9.
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.
Open Government at work: the Bush "torture memos" released
President Obama made news Thursday (April 16) by releasing four public records -- the infamous Bush "torture memos." You can find copies all over the web, but here's a link to an article on Talking Points Memo that has all four in PDF format.
Open Government Legislative Update
Few open government bills are still alive in the 2009 legislative session. There are three bills left that we are tracking: two make changes to the Public Records Act and and one modifies the open-meetings provision in the Washington Administrative Procedures Act. The next cut-off date is Friday, April 17, when all bills have to be approved by the opposite house.
SB 5295. Unanimous Sunshine Committee recommendations
The substitute bill has been voted out of the Senate and has made it out of committee in the House, but with an amendment. Its fate is not certain.
The Sunshine Committee’s recommendations were broken into two bills, one with the unanimous recommendations and one with the non-unanimous recommendations. The former contained the non-controversial recommendations and the latter contained the controversial recommendations. Only the non-controversial, unanimous recommendations made it out of committee. Its most substantive changes affect the following exemptions:
1. Child Mortality Reviews Exemption (RCW 42.56.360 and 70.05.170)
2. Several non-substantive changes to agricultural exemptions (RCW 42.56.380)
3. State wellness program records (RCW 42.56.360 and 41.04.362)
4. Identifying information about transit riders (RCW 42.56.330(5)
SB 5130. Enjoining prisoners, Laws of 2009, Chapter 10
This bill was signed into law March 20, 2009, and took affect upon signing. It allows a municipality to file a lawsuit to enjoin prisoners from making public records requests. The municipality must show the prisoner is using public records requests to harass others.
HB 1552. Additional requirements for open meetings for state agencies
The substitute version HB 1552 amends the Administrative Procedures Act, not the OPMA. Although it no longer directly affects local governments, it will benefit them by making state agency rule-making procedures more open. The substitute bill has passed the house and the senate, but with an amendment. The amendment clarifies the bill and should be approved in conference.
The views expressed are solely those of the author and do not necessarily represent the views of Foster Pepper PLLC or anyone else. If you disagree or have any comments or suggestions, we encourage your response.
Reaching a balance on attorney-fee awards
In North Carolina, as in many states, attorney-fee awards to requesters who are forced to file a lawsuit to obtain records are discretionary. New legislation, however, would make the award of attorney fees mandatory, except when the agency relies on legal advice to justify its decision to withhold the records. The same legislation would require mandatory mediation prior to a lawsuit.
Washington's Public Records Act already mandates a penalty that includes attorney fees and a daily award. RCW 42.56.550(4). But there is no exception for reliance on legal advice -- or reliance on a prior court order. As a result, governments are required to pay penalties from their public funds even when those governments act in good faith reliance on legal advice or on a court order.
For example, in West v. Thurston County, 144 Wn. App. 573, 183 P.3d 346 (2008), the County relied on a prior court order in another case providing that the same attorney-fee bills were work product when it told a requester those bills were exempt as work product pursuant to RCW 42.56.290. After the lawsuit was filed, however, the Legislature amended the Public Records Act to clarify that attorney-fee bills were in fact subject to disclosure. RCW 42.56.904. As a result, the Court of Appeals ruled that the County had erred in withholding those records, and remanded for penalties – penalties that will be paid by the taxpayers of Thurston County.
