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

On July 20, 2010, the Ohio Supreme Court expanded access to public records formerly protected from disclosure under the “uncharged-suspect” exemption to Ohio’s Public Records Act. The court held that the exemption applies only to portions of records that, if released, could reveal a suspect’s identity. The records in question were not “inextricably intertwined” with the suspect’s identity, so the court ordered disclosure after identifying information was redacted.

The decision was not, however, unanimous. The dissent stated concern that the ruling will weaken the uncharged suspect exemption, impose an onerous burden on trial courts by requiring additional review of portions of records, and create an unworkable redaction standard that may not actually protect suspects’ identities.

How does Washington compare? Like Ohio’s Act, Washington’s Public Records Act exempts certain types of investigative, law enforcement and crime victim information from public inspection. Similarly, the Washington Supreme Court does not support a blanket investigative records exemption, finding that in some scenarios, the trial court should determine on a case-by-case basis whether nondisclosure of all or parts of a requested record is essential to effective law enforcement or for the protection of privacy rights.

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A recent article in USA Today is headlined “iPads Saving Cities Paper Costs.” The story focused on the cost savings that may result from the use of iPads for internal as well as external communications of cities. The difficulty, as noted by a spokesperson for the Virginia Coalition for Open Government, is the communications on iPads (or iPhones and similar devices) do not necessarily create a record. The Coalition spokesperson was quoted by USA Today as identifying a critical issue in many states, including Washington: “Records generated are subject to disclosure, but we don’t have a mechanism for getting those records from an iPad.”

The State of Washington, like many states, broadly defines public records. The conduct of government business, whether by letter, email, text or other electronic message, may constitute a public record and governments are responsible for maintaining policies to assure public access to such records. One approach to record management is a requirement that a copy of messages relating to government business be sent to a government server.

The Washington State Office of the Secretary of State, applying that state’s Public Records Act, reminds Washington’s governments that the conduct of government business using iPads or iPhones does give rise to a public record of that communication and is to be kept consistent with the government’s record retention policy.

For additional assistance in this regard, see the Secretary of State website at:
http://www.sos.wa.gov/archives/RecordsManagement/ and recordsmanagement@sos.wa.gov.

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In State v. Mendez, ___ Wn. App. ___ , 2010 WL 3259347 (August 19, 2010). The Yakima Herald sought as public records the sealed attorney billing records for public defenders in two related criminal cases, State v. Sanchez and State v. Mendez. The trial court denied both requests, but suggested a motion to unseal pursuant to GR 15 in Mendez because that case is closed. (The Sanchez public records case was argued to the Washington Supreme Court on March 9, 2010.)

The Mendez court held that GR 15 and the State constitutional command that justice be administered openly and permitted the newspaper to intervene and granted the newspaper’s motion to unseal the billing records of public defenders in a closed criminal case. But in doing so, the court carefully distinguished ongoing criminal cases, in which the right to a fair trial and the right to counsel may be impacted by releasing the billing time and expense records of a criminal defendant.

In releasing the billing records, however, the Court of Appeals did affirm the trial court’s redaction of time descriptions tending to reveal communications between the defendant and his appointed counsel (attorney client privilege) and those describing discovery and contacts with witnesses, and other attorney work product materials.
 

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As everyone who responds to public disclosure requests knows, compliance with the public records act is expensive. The Yakima Herald-Republic reports that the City of Yakima is now spending $500,000 per year on public record requests, including staff and outside attorney time. The article notes that Yakima officials generally support the goal of the public records act, but wish that the legislature would do something to cut down on fishing expeditions, especially requests by lawyers who use the public records act as an end run on pre-trial discovery costs. The number of requests to the City is on a pace to reach 400 requests in 2010, up from 284 requests in 2007.

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A City of Cleveland law requires daily reporting by pawnbrokers of their transactions. For years, that reporting has been through the filing of 3X5 cards (double sided). A lower court had held that such an "antiquated" system violated the Ohio public record laws. The Ohio Supreme Court disagreed and reversed. Like the Washington Public Records Act, the Court held that an Ohio city had no duty to maintain its records in a particular format, and was not required to create or provide access to nonexistent records. As a result, people seeking access to pawn records in Cleveland must play the cards they are dealt.

For more information, click HERE.

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