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

Update 8/3

Here's an update from the Open Records Blog -- a great blog that tracks state public records issues nation wide -- on the R-71 controversy.  The Post also provides Tim Eyman's perspective on the issue. 

Update 7/30

As noted by the Seattle Times, a Federal Judge has issued an injunction prohibiting the State from releasing the names of the persons who signed the R-71 petition.  According to the Times:

Judge Settle . . . gave what appears to be a nod to the strength of the referendum backers' case, writing that they "have sufficiently demonstrated a reasonable likelihood of success on the merits" of their First Amendment claim, and "a reasonable likelihood of irreparable harm if the names are released."

Here is an editorial from the Yakima Herald on this ruling:  "Open records means just that -- so release the names on R-71"

Update 6/11

The Secretary of State's office has weighed in on this debate on its blog, "From Our Corner."  The post summarizes of Elections Director Nick Handy's position and captures the conflicts this issue raises:

State Elections Director Nick Handy notes the the state has long been committed to open records and transparency in government, but says he’s unhappy with the thought of the petition process being used as a weapon to dampen voters’ participation in their constitutional right of petition.

***

“Nobody is comfortable with releasing personal information in situations like this, but it is part of transparency in government,” Handy says. “We hope people will keep their cool.”

Almost everyone would agree that information on campaign donations should be public, and it is.  Likewise, almost everyone would agree that information about how an individual voter voted should be private, and it is.  Signing a petition seems to fall somewhere in between, but under current law, no privacy exists. 

Original Post 6/10

In this Seattle Times article, the author puts the spotlight on a new trend of publicizing the names of persons who sign petitions for initiatives and referenda.  The stated goal of this tactic is to foster conversations between those who sign a petition and their friends and family who oppose the initiative or referendum.  Critics say the real goal is to intimidate potential signers who don't want to be publicly associated with a controversial issue.  The article quotes the president of a special interest group as noting:

"They are using the public-disclosure laws to punish people for participating in the democratic process — a core right."

As the Internet brings the prospect of a more transparent government, this state and other governments will face new questions about privacy and fairness that weren't implicated when most public access was to pieces of paper. 

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link

A 'Tweet' OPMA violation?

Public perception counts, technical compliance may not be sufficient. Web 2.0 creates risks and challenges.

"'Tweets' bring possible illegal meeting to light. 
Twitter Post reveal a gathering of Mukilteo
City Council members after their official meeting."

Headlines like this recent headline in the Everett Herald hurt public trust, even when no laws are broken.  A post on the Open Records Blog (scroll down to the third post) demonstrates how at least some members of the public will react.

To ensure compliance with the OPMA, the Public Records Act and the retention laws, elected officials and public employees must make sure they understand all of their legal requirements before they use Web 2.0 sites. 

Here are some additional resources on the use of Web 2.0 sites by Elected officials and public employees:

City Council Handbook Wiki

Gov Social Media Wiki

• Email This
• Print
• Comments
• Trackbacks
• Share Link

As illustrated  in this Everett Herald story, a Mukilteo councilmember’s micro-blog serves to remind us about a lesson public officers and employees have been told for decades.

Common Sense Advice Over the Decades

1969: Don’t write anything down that you don’t want to see on the front page of the paper.

1979: Don’t record anything you don’t want to see on the front page of the paper.

1989: Don’t put anything in an email you don’t want to see on the front page of the paper.

1999: Don’t take pictures of anything you don’t want to see on the front page of the paper.

2009: Don’t tweet or post anything you don’t want to see on the front page.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

In 1972, when state voters enacted the Public Disclosure Act, they made a Declaration of Policy, providing:

mindful of the right of individuals to privacy and of the desirability of the efficient administration of government, full access to information concerning the conduct of government on every level must be assured as a fundamental and necessary precondition to the sound governance of a free society.

RCW 42.17.010(11) (emphasis added).  The Public Records Act (PRA) was a component of the Public Disclosure Act, and later separated into a separate provision of State law.

In two recent opinions from Division I of the Washington State Court of Appeals, the Court has rejected claims under the PRA that would have interfered with the efficient administration of government.

In  Koenig v. Pierce County, the Court recognized that counties are made up of several distinct agencies. As a result, when Mr. Koenig made a public records request to the Office of the Pierce County Prosecuting Attorney, the Prosecutor's Office was not required to search for records in the Sherriff’s Office.  

In ACLU v. City of Seattle, the court held at under the PRA (at RCW 42.56.280), a city does not have to release records related to union contract negotiations while those negotiations are ongoing. The state voters had approved an exemption from the general disclosure obligation when non-disclosure serves the public interest. Here, in applying that exemption, the Court noted:

“Public scrutiny of contract issues discussed prior to completing negotiations might be misconstrued, and disclosure would hinder a vital part of the bargaining process—the free exchange of views, opinions, and proposals.”

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link

Emails allow an increased level of public access to government decision-making because many issues are resolved in email exchanges that 20 years ago would have been addressed in person or over the phone. These same emails, however, sometimes reveal embarrassing information.   Example A:  the scandal related to South Carolina Governor Sanford's affair.  For more see the posts on the Death by Email blog. 

Not surprisingly, the newspaper that broke the story, the State, has made an extensive public records requests to the Governor's office. What is surprising, however, is that some of the more recent embarrassing emails show media outlets pledging support for the governor when the stories first broke that he had gone missing: Great Call: In Emails To Sanford's Office, Right-Wing Media Dismissed Missing Gov Story

It's not uncommon for members of the public unaware of the scope of the public records laws, to be embarrassed when their email to their elected official is made public.  But this is the first example I've seen of the media being embarrassed because they forgot about the public records laws.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The City of Prosser provides the latest example of how the Public Records Act can be very profitable for some.  The City has agreed to pay a requester $175,000 to settle a PRA lawsuit.  As recorded by theYakima Herald, the requester caught the City up in 11 mistakes after making 213 requests.  The PRA requires strict compliance and puts no limits on the number of requests a person can make at no cost to the requester.  

Taxpayers, of course, will pay the tab.  And this may not be the end of it -- the requester has already warned "They've got to be fully prepared to go the next round." 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The First Annual "Open Government Year in Review 2008-2009" is now available for download.  The Year in Review collects articles on case developments and other open government issues during the last year.  Below is a partial list of articles.   Download your copy here.

Open Government Year in Review 2008-2009 partial table of contents:

Case Law Updates

• Parmelee v. Clarke:  Court Holds Agencies Can Enforce Their Public Records Act Policies

• RHA v. City of Des Moines:  Supreme Court Underscores the Requirement to Produce an Exemption Log Under the Public Records Act

• Yousoufian v. Office of Ron Sims:  Supreme Court reverses the LARGEST court-assessed Public Records Act penalty in Washington State history – because it was TOO SMALL:  What agencies can learn

• Sitterson v. Evergreen School Dist.:  Washington Adopts the Inadvertently Disclosing Doctrine for Privileged Records

• Bellevue John Does v. Bellevue School Dist. No. 405:  The Supreme Court Re-Affirms Privacy Rights for Public Employees

• West v. Thurston County:  Attorney Fee Bills Must Be Disclosed

• West v. Port of Olympia:  All Deliberative Process Documents Must Be Disclosed After Decision Is Final

• O’Neill v. City of Shoreline:  “Metadata” Is Subject to Disclosure

• Clark v. Tri-Cities Animal Care & Control Shelter:  Is Your Independent Contractor Subject to the PRA?

Open Government legislative update

Articles on Open Government Issues

• End the “Gotcha” Nature of the Public Records Act

• Addressing the “executive sessions” question

• The Open Public Meetings Act, “Serial” Meetings, and Email Exchanges

• Five Issues You Should Consider Before You Decide to Use Your Personal Email or Personal Computer for Official Public Business

• Lessons from Mesa:  Seven Tips to Avoid Being Overwhelmed by the Repeat Public Records Requester (updated 9/08)

• Cautionary lessons from 2009 from around the country 

• Email This
• Print
• Comments
• Trackbacks (1)
• Share Link

Update July 13, 2009

Here is another story/editorial from the TNT on this case: "L&I, Justice Sanders run up the bill."  Even the TNT notes the harsh nature of the L&I judgment:

A half-million dollars does seem stiff, given that L&I did not contest that it was at fault for withholding the records. An agency spokesman told The Olympian that an employee had failed to take proper action in response to the records request.

Original Post

As noted in this Olympian article, the Washington State Department of Labor & Industries was recently ordered to pay $500,000 because of errors related to a single Public Records Act Request. This case demonstrates that the failure to properly respond to a single public records request can have significant economic consequences.  One consequence of this judgment will be a significant increase in electrical inspection fees, because it is public dollars that will pay this judgment.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

As governments put more and more information on the web, governments should be focused on how to make that information usable to help the public understand how it relates the decision-making process.  As noted in this post, Transparent or Translucent, simply loading data onto websites can serve to obscure how governments make decisions  rather than give the public access to how and why those decisions are made.  This can result in translucent government, not transparent government. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Australia has some of the most sophisticated and advanced laws on document retention and access. Therefore, it was not surprising to find this guidance on records retentions issues for government web 2.0 sites coming from the Australian government:  Records Management and Web 2.0

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Update 7/12/09

Here is another article from Florida on whether governments should use web 2.0 sites:
"Attorneys, legislators to pull plug on Marco government’s use of social Web sites? Increased accessibility to candidates and officials, public records concerns among the pros and cons being considered in use of Facebook, Twitter"

Update 7/7/09

Spies should also stay off Facebook:  "British spy chief outed on wife's Facebook page" 

Update 6/2

Apparently Judges should stay off Facebook too.  Here's an article about a Judge who was reprimanded after accessing a litigant's Facebook site. 

Original Post  5/18

As the benefits of Web 2.0 personalized communication -- like Facebook, YouTube and Twitter -- become more apparent, public agencies and politicians are quickly looking to these tools to communicate with the public. Several Washington State agencies, including the Secretary of State and Attorney General (links Twitter, Facebook and YouTube at the bottom of the AG's homepage) use Web 2.0 sites such as Facebook.  Here's a PowerPoint presentation from the Secretary of State's office explaining the benefits of Web 2.0 sites. 

Use of Web 2.0 sites is not without risk, however.  As highlighted in this article about the advice of a city attorney in Florida to his city council -- stay off Facebook, there are concerns about whether the use of such sites affects a government's ability to comply with public records, records retention and open public meetings laws.  The city featured in the article concludes:

It is a simple fact that the state of the law is lagging woefully behind the state of the art in communications technology. This presents unique challenges in following the intent and the letter of these laws regulating public meetings and communications of local government.  For this reason, this office discourages the City’s participation in a Facebook page or any similar interactive communication technology. 

Earlier this year the Obama administration highlighted some other issues with the "terms of service" users of YouTube and other Web 2.0 sites, such as one-sided reimbursement clauses and sites' use of cookies to track visitors.  Both were inconsistent with federal law or federal policy. 

Here is an article reviewing the use of Web 2.0 products by governments throughout the country.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Here is an interesting editorial in the Wall Street Journal:  "Why Palin Quit Death by a Thousand FOIAs" The editorial highlights that public records laws can be abused to paralyze a government agency or a public office holder:

This situation developed because Alaska's transparency laws allow anyone to file Freedom of Information Act requests. While normally useful, in the hands of political opponents FOIA requests can become a means to bog down a target in a bureaucratic quagmire, thanks to the need to comb through records and respond by a strict timetable. ... Since Ms. Palin returned to Alaska after the 2008 campaign, some 150 FOIA requests have been filed and her office has been targeted for investigation by everyone from the FBI to the Alaska legislature.”

As bad as this may sound, at least Alaska law -- like the law in most states -- allows the state to charge for search time after giving each requester a taxpayer-subsidized five hours a month for free, which serves as a disincentive to anyone seeking to abuse the law by making large requests. Agencies in Washington, however, cannot charge for search time, which makes the Public Records Act an even more powerful weapon in this state for persons who may want to target an agency or official. And while the vast majority of requesters act in good faith, even one person can paralyze a city or other agency.

(Note, the editorial also highlights the numerous ethics complaints that have led to a half-million dollar attorney-fee bill, which also played a big factor in Palin’s decision to resign.)

• Email This
• Print
• Comments
• Trackbacks
• Share Link

As I have previously noted, a little while back I asked Tim Ford, the AG's Open Government Ombudsman, about some of the legal issues related to the use of blogs and Web 2.0 sites. 

Here is his email response (my questions are in black, his responses in red).  Essentially, Ford states that the content is the public record, not the "look and feel" version that actually would appear on the Web 2.0 site.  This addresses my biggest concern. 

And here is Russell Wood's response to the retention issues.  Again, Wood states that it is the content that is subject to retention (this is an edited version of the email).

The one remaining open issue is whether an elected official's personal blog becomes a public record if the official discussions agency business.  Agencies also have to use extreme caution if they accept comments to ensure that comments are not edited or removed in a way that would violate the First Amendment.  A clear policy is essential for this purpose. 

Here is Olympian reporter Brad Shannon's blog post on the topic.

Here are my earlier posts on the topic:

"To Blog or Not to Blog -- that is the question"

"Lauderdale city attorney tells politicians: Stay off Facebook"

• Email This
• Print
• Comments (2)
• Trackbacks
• Share Link

Here are recent open government headlines from Washington State -- thanks to WaCOG andOg-Blog for finding these.

"D'Amico wins open records suit against Jefferson County for Commissioner Sullivan's phone calls"  Port Townsend Leader

"Records show WWU hushing of information, criticism of student newspaper article" Bellingham Herald

"Monroe's business gets done in secret"  Everett Herald

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Here is the lasted post on Tim Ford's Unredacted Blog "May a council member attend a public meeting by telephone?"

Tim's conclusion: 

Therefore, I conclude that a governing body may "attend" a meeting by teleconference so long as there is compliance with the other requirements of the OPMA.  Attendance does not require the contemporaneous physical presence of the members of the governing body.  While it may be good policy to require such physical attendance, the OPMA must be construed broadly to fulfill its purpose.

I agree with Mr. Ford's conclusion and recommend that you read the full article. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Last month I had the pleasure of teaching two classes to city officials at the Association of Washington Cities Conference in Spokane.  One hot issue raised by the city councilmembers was the use of blogs and Web 2.0 cites.  I cautioned against their use because the Public Records Act issues are unresolved. 

Another topic at the conference, however, was about the use of blogs and Web 2.0 cites.  The presenter, Lakewood City Councilmember Walter Neary, has his own blog, Electing2Blog, Blogging by Elected Officials, dedicated to this topic. 

When some of the councilmembers who attended my sessions cautioned about the risks of blogging created by the PRA,  ... well here is Councilmember Neary's take "A Funny Thing Happened on the Way to Public Outreach." 

Here is another take on the exchange from the Olympia Time blog:  "The secret key to why city council members are told not to blog" 

Someone has also started a WIKI page on the topic entitled "Social Web handbook for Washington State local electeds"

I will post the questions I have asked Tim Ford, the AG Open Government Ombudsman, about the legality of this topic shortly. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Update 7/5

What does this mean for other PRA cases?  If you have a case at the penalty stage, I'd probably seek a stay because unless the Court adopts the identical test,  if you do it now you'll just have to do it again later.

Original Post

The Washington State Supreme Court has withdrawn its January Opinion in the long-running Yousoufian v. Office of Ron Sims case.  In that Opinion, the Supreme Court had ruled that the $124,000 Public Records Act penalty award against King County was too small.  The Opinion adopted 16 factors trial courts should use to set penalty amounts.  For more details on the Opinion, see this MRSC article.

King County had moved to have the Opinion withdrawn after it was revealed that the Opinion author, Justice Richard Sanders, had a pending appeal in a Public Records Act case, where he was relying on his Yousoufian Opinion to argue that his judgment against the State should be increased.  In light of the recent U.S. Supreme Court holding in Caperton v. Massey that a West Virginia Supreme Court Justice's decision not to recuse himself violated due process, this result is not surprising. 

Here is an article in the Seattle Times on the Supreme Court's ruling.  Here is a post on the Supreme Court Blog about the order. 

• Email This
• Print
• Comments (2)
• Trackbacks
• Share Link

When the U.S. Forest Service was considering whether to fire whistle-blower Glen Ith back in 2007, its ethics chief was keenly aware that his emails on the topic were public records, subject to discover.  His solution?  Instruct all recipients to destroy the emails:

This information is for your eyes only.  Please destroy after reading.  It's not protected by privilege and is subject to discovery.

Melvin Y. Shibuya
Chief, Labor/Employee Relations Branch

He repeated similar warnings in subsequent emails. 

Here is a link to an article that includes these excerpts from those emails.

Justice has prevailed, at least sort of.  Mr. Ith died of a heart attack while on administrative leave, after his job was "downsized" but his widow was recently awarded all of her litigation cost.  

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Here is a very helpful new blog, "Unredacted," that records the Open Government Ombudsman's informal opinions on Open Government issues.   Transparency at work. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Division I and Division II of the Washington State Court of Appeals both issued decisions in favor of local governments seeking to comply with the Public Records Act (PRA). 

In Beal, Cummings, Rasmussen & Wingard v. City of Seattle, Division I held that the City of Seattle did not have to treat an oral request made at a planning meeting as a PRA request because under the circumstances, there was no reason for the City to recognize that it was a PRA request. 

In Koenig v. City of Lakewood, Division II held that the City properly redacted records pursuant to the Criminal Records Privacy Act and the PRA.  It also rejected the requester's claim that he was entitled to additional penalties and attorney fees. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link