Yesterday, the Supreme Court of Arizona held, in a unanimous decision, that under the state’s public records laws any entity that maintains electronic records must disclose those records along with embedded metadata. Lake v. City of Phoenix et al, No. CV-09-0036.
On October 13, 2009, Washington State Court of Appeals (Division II) affirmed a trial court’s summary judgment in a public records case brought by the Building Industry Association of Washington (BIAW). BIAW sued Pierce County when the County did not produce certain email records that the BIAW had located from a different agency. The court ruled that emails from the Washington Secretary of State’s office to the Pierce County Auditor had been properly deleted pursuant to the applicable retention policies. The Court further held that the State’s Public Records Act (PRA) does not authorize a requestor to comb through agency records searching for records that do not exist.
At issue were several informational emails that were sent by the Secretary of State to all county auditors regarding voter registration forms submitted by the Association of Community Organizations for Reform Now (ACORN). When these emails were not produced by Pierce County in response to a public records request, BIAW sued, arguing that the County was withholding the emails in violation of the PRA or had destroyed them in violation of Washington State's Preservation and Destruction of Public Records Act, chapter 40.14 RCW. In response the County contended that the emails had likely been deleted pursuant to its general records policies since the emails were purely informational. The County submitted affidavits to the trial court demonstrating its office policies and procedures, the use of email, and what had happened in the particular circumstances involved.
The Court agreed with the County, stating that BIAW had failed to introduce evidence contradicting the County’s affidavits. The Court also noted that the County’s procedures comply with applicable retention policies published by the Secretary of State regarding informational only emails; and, that destruction of records in accordance with retention policies is allowed as long as no public records request for those records is outstanding at the time of destruction. Neither the trial court nor the appellate court reached the issue of whether the improper deletion of a record in violation of chapter 40.14 RCW would constitute a separate violation of the PRA.
Over 20 years ago, the Washington State Supreme Court held in Nast v. Michels, 107 Wn.2d 300 (1986 ) that the State's Public Records Act (PRA) does not apply to court case files because the judiciary is not included in the PRA’s definition of a State “agency.” On October 15, 2009 , the Supreme Court reaffirmed its Nast holding in City of Federal Way v. Koenig, 2009 WL 3298055.
The Koenig case began in February 2008. David Koenig, a regular claimant against Washington local governments, requested from the Federal Way Municipal Court all public records related to the resignation of Federal Way Municipal Court Judge Colleen Hartl . His request included correspondence to and from Presiding Judge Michael Morgan. The City of Federal Way provided 183 pages of documents . But, citing Nast, the City refused to provide the requested correspondence on the basis that the municipal court was not subject to the PRA. Koenig argued that Nast was wrongly decided and persisted in pursuing his requests.
The City filed a lawsuit and requested a declaratory ruling that the municipal court was not subject to the PRA. In September 2008 the trial court entered an order finding for the City. Koenig appealed that decision directly to the Washington State Supreme Court.
The Supreme Court affirmed the Nast holding. The Court emphasized that over the years the legislature had amended the PRA many times, without changing the definition of agency. Without a legislative change, the doctrine of stare decisis (to adhere to precedent) was applied by the Court to not disturb the Nast court's holding that the PRA does not apply to the judiciary. As a result, the Court held that the court records requested by Koenig were not subject to disclosure by the City of Federal Way under the PRA.
Earlier today, the United States Supreme Court in an eight to one vote blocked the public release of documents showing names and contact information of Washington Referendum Measure No. 71 (“R-71”) petition signers. This action stopped the Ninth Circuit’s ruling last week that ordered the release of the documents. See our October 16, 2009 blog posting for more information regarding the Ninth Circuit’s ruling.
The Seattle Post-Intelligencer reported that the Supreme Court will now consider whether to hear the merits of the case, but the action to block the release of documents means the petitions most likely won’t be released before the November 3, 2009 election.
On Thursday, October 15, 2009, the Ninth Circuit Court of Appeals issued an order overturning a decision of the U.S. District Court of the Western District of Washington that barred the Washington Secretary of State from any public release of documents showing names and contact information of referendum petition signers. The particular case involved Washington Referendum Measure No. 71 (“R-71”). See our September 25, 2009 blog posting for more information regarding the earlier ruling of the District Court.
On the same day, the Secretary of State's Election Division issued a narrative explaining why the Secretary of State, in consultation with the Attorney General’s Office, treats initiative and referendum petitions as public records subject to disclosure under the Washington Public Records Act.
Despite the Ninth Circuit ruling, the names have not been released due to a temporary restraining order granted by a Thurston County Superior Court judge blocking the State from releasing initiative petitions under the Public Records Act. The District Court decision was issued in response to a lawsuit, seeking to stop the release of petitions, brought by Tim Eyman, a well known sponsor of initiatives and referendums.
Last week, the Olympian reported that the Washington State Supreme Court has agreed to hear arguments in the Yakima Herald-Republic’s legal battle over sealed records in a 2005 double homicide. The newspaper is appealing a July 2008 lower court ruling that defense attorney billing records detailing more than $1.5 million in fees and expenses are not subject to the Public Records Act. Arguments are expected to be scheduled sometime between January and early spring 2010.
Yesterday’s editions of the Olympian and the Spokesman-Review reported that the Attorney General and the State Auditor held the first meeting of their jointly created Open Government Task Force this last Monday. This Task Force is distinguished from the legislatively-created Public Records Exemptions Accountability Committee (the "Sunshine Committee"), which is charged with reviewing all exemptions to the Public Disclosure Act on an annual basis and making recommendations to repeal or amend exemptions to the Public Records Act. According to an Attorney General press release, the Open Government Task Force was created “to study and make recommendations on the creation of an administrative board to rule on complaints of violations of the Public Records Act and the Open Public Meetings Act.” The Attorney General’s website provides that the Task Force is charged with determining “an efficient and inexpensive solution…to resolve complaints and provide greater access to public records and public meetings while reducing costs to government agencies and the public.”
More information about the Task Force can be obtained on the Attorney General’s web page and on the Washington State Auditors Office web page.
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