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

The preservation and destruction of public records is governed by Chapter 40.14 RCW.  Local Governments are responsible for adopting appropriate records retention policies and procedures.  The local records committee establishes retention schedules for different types of local governments that specify retention periods applicable to different categorizes of public records.  These schedules are available on the Washington State Archives website.  Local governments should also consider other applicable retention schedules.  For example, public hospital districts should consider the Medicare conditions of participation and the Joint Commission requirements, among others.  Failure to adopt and implement appropriate records retention and destruction policies and procedures may result in financial penalties and even in possible criminal sanctions because the destruction or mutilation of a public record is a felony under certain circumstances.  See Chapter 40.16 RCW.  Individual officers and employees should make sure that they adhere to the retention schedule with respect to documents that they maintain, such as any email that constitutes a public record (whether or not the email is on a government, personal or business computer).

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A Pennsylvania appeals court recently overturned a trial court ruling that allowed the Pennsylvania Emergency Management Agency (PEMA) to withhold the complete list of the recipients of goods and services PEMA purchased with Homeland Security funds in response to a disclosure request from a Pittsburgh newspaper reporter. Bowling v. Office of Open Records, 2010 Westlaw 395637, February 5, 2010. The Court found that while disclosing the location of certain items, such as computer servers and biochemical testing equipment could be harmful to security, identifying the number and location of such items as bungee cords would not. The Court explicitly acknowledged the “enormity of the task” that individually identifying the non-sensitive items would create for PEMA, but nevertheless held that Pennsylvania’s new disclosure law required greater access to the Commonwealth’s public records.

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In response to a suit filed by the NAACP, a Maryland Court of Appeals decided that the Maryland State Police (MSP) must produce certain internal affairs files. In 2003, the NAACP and MSP entered into a federal consent decree to address claims of racial profiling. In 2007, the NAACP sought documents to verify MSP compliance with the consent decree. MSP produced many documents, but resisted producing the internal affairs files that may contain complaints of racial profiling. MSP asserted those files were “personnel records of an individual” and exempt from disclosure. On February 2, 2010, the court rejected the MSP defense, as well as the claim that an “Officer’s Bill of Rights” precluded disclosure.

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The Rockford (Illinois) Police Department commissioned a 2007 survey by Rockford College of uniform and non-uniform Department personnel, as well as residents in a particular area of the City. In addition to Departmental performance, the survey sought an assessment of employee job satisfaction.

The Rockford Police union sought disclosure of the survey results. The City resisted, asserting that the survey results were protected from disclosure under any of three exemptions: audits; personnel matters; or, the “self-critical analysis” privilege. On January 22, 2010, an Illinois Appellate Court rejected the City’s defenses and affirmed an earlier court order requiring disclosure of the survey. The Illinois Freedom of Information Act does not include an exemption for “self-critical analysis,” and the Illinois court would not graft federal precedent onto the state law exemptions.

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In Nunez v. Pachman, 2009 WL 5084084 (N.J. Super., A.D., Dec. 29, 2009), the Court was called upon to decide whether a verbal reference in an arbitration to an expunged criminal record could violate a reasonable expectation of privacy and give rise to a cause of action sounding in tort. In New Jersey, “expungement” requires “all” records of a conviction to be destroyed. This in turn can give rise to a reasonable expectation of privacy. The court noted that other states’ laws on expungement may be less strict, and cited cases holding that no claim for violation of a right to privacy existed in those states, under different expungement laws.

The absolute privilege from defamation actions for statements made in judicial proceedings may not apply outside traditional judicial litigation for a, because the protections from wrongful disclosure, like motions in limine, court-ordered sealing of documents, etc., may not apply.  The court held that protection of attorneys and witnesses in arbitrations unrelated to the subject matter of the privacy claim (here, in a union grievance arbitration, the fact that the union member had been arrested and convicted, though the conviction was expunged, the expunged conviction was not truly germane to the proceedings) was only qualified immunity, and the attorney could be liable for invasion of privacy unless, on remand, the attorney satisfied a several-factor test.

Thus when records are made privileged or otherwise exempt from disclosure, there may be some basis for a claim that revelation of those records outside the traditional judicial setting could give rise to liability, even though the case was in alternative dispute resolution.

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In Corey v. Pierce County, 2010 WL 255956 (Court of Appeals, Div. 1 Jan. 25, 2010), the Court of Appeals reversed a trial court order allowing a claim for damages for negligent release of unsubstantiated allegations of misconduct by a deputy prosecutor. The former deputy prosecutor alleged that disclosure of allegations of misconduct violated her right to privacy. The court held that protection against disclosure by an agency subject to the public records laws must be based upon the Public Records Act (PRA), RCW 42.56. The PRA provides for an action to order publication of information that would be offensive to a reasonable person and not of legitimate concern to the public. RCW 42.56.050; RCW 42.56.230(2). The PRA provides for injunctive relief to prevent this disclosure. RCW 42.56.540. The PRA does not, however, provide a cause of action for damages. The court declined to recognize a common law right of action.

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