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

Yousoufian v. Office of Ron Sims, __ Wn.2d __, __ P.3d __ (March 25, 2010), is the fifth appellate court decision in a public records dispute that began with a request for records related to a proposed new sports stadium in 1997. The Washington Supreme Court recalled the mandate it had already issued following its 2009 opinion, 165 Wn.2d 439, 200 P.3d 232 (Jan. 15, 2009), and now modifies and affirms the Court of Appeals decision found at 137 Wn.App. 69, 151 P.3d 243 (2007). The final issue was the amount of daily penalties a trial court should award for King County’s violations of the Public Records Act, ch. 42.56 RCW. In this 5-4 opinion, the majority laid out a set of seven nonexclusive “mitigating factors” and nine nonexclusive “aggravating factors” for trial court consideration in determining the appropriate daily penalty from the mandatory statutory range of $5-$100. RCW 42.56.550. The chief considerations are the compliance effort by the agency and the impact of the agency’s action—with the higher penalties reserved for those cases in which some form of “sting” appears necessary to force the agency to pay attention to its disclosure obligations.

This round of appeals began when the trial court decided the daily penalty should be $15. The appellate court reversed, and remanded for a higher daily penalty determination by the trial court, whose discretion is virtually unlimited by statute. The Supreme Court affirmed the Court of Appeals, but with a twist. In a highly unusual decision criticized by the dissent, the majority declined to issue yet another mandate to the trial court, but instead determined the daily penalty itself -- $45 per day. The resulting penalty -- $371,000.00 -‑ is the highest PRA judgment on record in this State. As the dissent notes, it is not readily apparent how the Supreme Court applied its factors to come up with the $45 daily penalty. While the majority’s goal was to guide trial courts and thus limit the number of PRA appeals, it remains to be seen whether the nonexclusive 16-factor approach will achieve that end.

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The Washington Attorney General has called for legislation to create an administrative board to manage disputes over Public Record Act claims. The legislation is not likely to be considered until 2011. In an op-ed piece in Crosscut, AG Rob McKenna noted during "Sunshine Week" that this would save substantial costs when compared with the current process of litigation.

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The FCC released the National Broadband Plan today, setting out ambitious goals for how the federal government conducts business in cyberspace. The Plan targets several concrete goals, including

• 100 million homes with affordable access to 100 megabit per second internet access.
• At least one institutional (e.g., hospital or university) connection at one gigabit per second in every community. 

Closer to open local government’s home, the Plan’s “Civic Engagement” chapter may raise the bar for municipalities in providing access to records and officials. Although the Plan is directed to the federal government, citizens are likely to expect the same level of service from all government agencies, including their local city hall.

Some Plan recommendations that could make their way to local government requirements in the next few years include:

• All responses to Freedom of Information Act (FOIA) requests should be made available online (rather than delivered only to the requester), in part to cut down on time and money spent processing multiple similar requests.
• All government meetings, hearings, and town halls, should be broadcast online.
• Government should accelerate the adoption of social media technologies given the success stories to date, e.g. 37 million views of H1N1 flu-related media feeds.

Given the potential impacts of the Plan (and technological innovation generally) local government stakeholders would be well-advised to educate themselves about broadband technology and its impact on citizen interaction with their government leaders.

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The Seattle Times reported on the Supreme Court arguments in a dispute between the Yakima Herald-Republic and Yakima County regarding the disclosure of copies of court documents.  The dispute involves the billing records of defense attorneys in a murder case that were placed under seal by a judge.  The judiciary is exempt from the disclosure requirements of the Public Records Act, but in this case the County also has copies of the records, and the newspaper sought disclosure of the records from the County.  At issue is whether copies of documents also located in a sealed court file are subject to disclosure under the Public Records Act. The Seattle Times article is available here.

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Publicola is reporting that members of the Bellevue City Council are accusing the majority of violating the Open Public Meetings Act by negotiating the text of a letter to Sound Transit without holding an open public meeting.  The council members allege that the letter regarding the future location of a light rail line through Bellevue was drafted via phone and email.  The Open Public Meetings Act, Chapter 42.30 RCW, requires that all meetings of the governing body of a public agency shall be open and public.  A meeting occurs when the majority of the governing body or any committee acting for the governing body transact any official business of the public agency, including but not limited to receipt of public testimony, deliberations, discussions, considerations, reviews, evaluations, and final actions.  A court may determine that a meeting has occurred if a majority transact business via a "serial" or "rolling" meeting in which phone calls or email are forwarded among the group until a consensus is reached. 

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The FCC’s Government Operations Director Eugene Huang recently discussed how the forthcoming National Broadband Plan broadband access will help transform how citizens interact with the federal government. In his comments at M.I.T.’s Center for Future Civic Media, Huang discussed the need to make primary legal documents “free and publically available online.” Huang noted the need to stream government meetings, public hearings, and town hall meetings online as well as provide public government data to the internet in machine-readable formats.

Huang’s comments hint at a number of broad initiatives in broadband access, open government, and social media use that will be contained in the National Broadband Plan when it is released later this month. Development of the National Broadband Plan is an FCC project authorized in the 2009 American Recovery and Reinvestment Act. Huang’s speech can be found online at the FCC’s Broadband blog.

The National Broadband Act, due out March 17, will likely have some impact on local governments. Although many local jurisdictions are far ahead of the federal government. in providing data access and streaming meetings, as Washington, D.C., opens up, local governments are likely to face increasing pressure from citizens to provide similar services and information. Of course, as we have discussed before, new and improved access and communications, such as blogs and twitter feeds, will also have far-reaching impacts on public records management responsibilities for local governments.

We’ll provide more information and analysis as details of the National Broadband Plan become available during the next two weeks.

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