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

The U.S. Supreme Court heard oral argument on April 28, 2010 in the case of Doe v. Reed [Sam Reed, Washington State's Secretary of State].  As we have previously blogged, the case addresses whether public release of referendum petition signatories under Washington’s Public Records Act violates First Amendment rights.  The justices sharply questioned the plaintiff's attorney, who sought to prevent release of the names of people who signed a referendum petition to require a public vote to overturn Washington’s “everything but marriage act.”  A Seattle Times article on the oral arguments including a public transcript is available here. 

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Tomorrow (April 28, 2010), the U.S. Supreme Court will hear oral argument in the case of Doe v. Reed – addressing the question of whether the release of the names of referendum petition signatories pursuant to Washington’s Public Records Act violates First Amendment rights.

The case involves the attempt to seek release of the names of people who signed a referendum petition to require a public vote to overturn the legislature’s enactment of Washington’s “everything but marriage act.”  The Secretary of State was poised to release the names, when a group named “Protect Marriage Washington” and two individual signatories to the referendum petition (John Doe #1 and #2) sought a preliminary injunction in Federal District Court to stop the release.  The District enjoined the release finding that it would impinge on First Amendment rights.  The Ninth Circuit heard expedited review of that ruling and reversed the decision on October 15, 2009 – before the election. Doe v. Reed, 586 F.3d 671 (9th Cir. 2009).  Four days later, however, the U.S. Supreme Court stayed the Ninth Circuit ruling, reinstated the District Court’s preliminary injunction and accepted review. Doe v. Reed, No. 09-559.

The Washington Attorney General  will argue the case tomorrow on behalf of the State’s Secretary of State,  and urge the Supreme Court to affirm the Ninth Circuit ruling.  The State’s position is that when people sign a referendum petition to substitute their view for that of the Governor and Legislature, they are engaging in a public legislative process and have no expectation of privacy when they sign such a referendum petition. 

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On Wednesday April 23 the State Archivist circulated a reminder that digital photocopiers contain hard drives with images of scanned records. These must be treated as public records, and all applicable federal, state and local rules must be followed, including those rules mandating the protection of confidential information. The archivist suggested that the hard drives on photocopiers should be erased before the copiers are traded in. A link to a CBS news story regarding records on digital copiers owned by public entities that was circulated by the archivist can be found here.

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David Koenig, a regular plaintiff in Public Records Act cases, sought certain records from Thurston County. The records were a Victim Impact Statement and a Special Sex Offender Sentencing Alternative (SSOSA) evaluation. The documents are used in evaluation and sentencing of sex offenders.

The trial court ordered the documents sealed. But Koenig’s request had been sent to the Prosecutor’s Office, and not to the court. The Prosecutor’s Office denied disclosure under RCW 42.56.240(1), which exempts from public inspection and copying,

“specific investigative records compiled by investigative, law enforcement, and penology agencies….the non-disclosure of which is essential to effective law enforcement or for the protection of any person’s right to privacy."

The Washington Court of Appeals ruled, on April 6, 2010, in a divided opinion that Victim Impact Statements are exempt under the PRA. But, the court held that SSOSA evaluations must be disclosed after redaction of any identifying information regarding the victim and certain other third parties. Notwithstanding the difficulty in determining the exemption from disclosure of these particular public records, the court determined that it had no discretion regarding the award of penalties to Koenig under RCW 42.56.550(4). The matter was remanded to the trial court to set the amount of penalties that Koenig may receive.

To view the court's decision, click HERE.
 

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In order to preserve taxpayer resources the legislature has revised the Public Records Act, Chapter 42.56 RCW, to allow agencies to refer records requesters to documents available on its website.  Under current law, an agency that receives a public records request must respond within five days by either (1) providing the requested records, (2) denying the request, or (3) providing the requester with a reasonable time estimate for fulfilling his or her request. Effective June 10, SB 6367 provides agencies with a fourth option.  If the record is available on the agency website, then the agency may provide a link to the specific records requested.  However, if the requester notifies the agency the agency that he or she cannot access the records via the internet, then the agency must provide copies to the requester or allow the requester to view copies using an agency computer.   A copy of the session law can be found here.

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