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

A divided Pennsylvania Supreme Court has told the Philadelphia City Council that under Pennsylvania’s Sunshine Law, the City Council – as a whole – must allow public comment on pending legislation. [Alekseev v. City Council of City of Philadelphia, 2010 WL 4643724] The Pennsylvania Supreme Court overturned a long-standing policy in Philadelphia where Council committees, instead of the Council as a whole, scheduled and received public testimony on pending legislation. The Court found that “simply because committees fall within the definition of ‘agency’ does not mean that they may be substituted for a particular body (a board or council) accorded a specific responsibility (entertaining public commentary) by the Legislature under the Sunshine Act.”

The three dissenters on the seven-member Court found that not only that there was no doubt the General Assembly was aware of Philadelphia’s long-standing, preexisting practice of receiving public comment in special meetings conducted by Council committees, and sought to preserve it, but that testimony at the committee level was more effective. “In this case, and consistently with the practice in Philadelphia for over half a century, appellants were allowed to provide input to the committee in advance of the Council meeting at which the bill was passed, so it appears they actually had a more realistic opportunity to participate in shaping the legislation, rather than speaking at the very meeting where the vote was taken.”

In contrast, Washington’s Open Public Meetings Act explicitly references the fact that testimony may be taken at committee meetings. RCW 42.30.020(2) defines “Governing body” to include “the multimember board, commission, committee, council, or other policy or rule-making body of a public agency or any committee thereof when the committee acts on behalf of the governing body, conducts hearings, or takes testimony or public comment.” (Emphasis added.)

In fact, a committee or other subsidiary body created by the full council or commission in Washington is required to observe the Open Public Meetings Act and allow testimony to be given in public. In 2001, for example, the City of Lakewood’s adult cabaret ordinance was held invalid because a Planning Advisory Board created by the City Council took testimony about the proposed ordinance in closed door sessions. Clark v. City of Lakewood, 259 F.3d 996, (9th Cir. 2001).

There is, however, always a balance between allowing for public testimony and the need for efficiency and decorum. See, Steve DiJulio’s article: “Balancing the Council’s Right to Manage Meetings With Expectations of Citizens.”
 

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A unanimous panel of the Washington Court of Appeals, Division II, ruled that the Washington State Patrol’s police traffic collision reports were not protected by federal law and had to be turned over to a citizen requesting accident reports for a specific location. Gendler v. Batiste, et al., Case No. 39333-6-II (Wash. Ct. App., Div. II, Nov. 24, 2010). The requester, Michael “Mickey” Gendler, suffered a devastating spinal-cord injury while biking across Seattle’s Montlake Bridge, leaving him a quadriplegic.  The front wheel of Gendler’s bike wedged in a wide gap on the bridge and he was thrown head-first over his handlebars. After Gendler learned that other bicyclists had “similar debilitating accidents” on the Montlake Bridge, he made a public records request to the State Patrol for “all police reports relating to collisions involving bicycles on the Montlake Bridge in Seattle (SR 513).”

The State Patrol would only provide records if Gendler was able to identify the person involved and the collision date, while also telling Gendler that it did not maintain reports by location. Gendler found he could obtain specific records from the State Patrol’s website, but only after certifying that he would not use the records in a lawsuit against the State. In a separate action, Gendler sued the State over his injuries and that case recently settled.

The Court of Appeals agreed with the the trial court, holding that the State Patrol cannot hide behind a memorandum of understanding (“MOU”) with the State Department of Transportation (“WSDOT”) and WSDOT’s federal privilege under 23 U.S.C. §409, barring use of collision data in lawsuits. The federal privilege is intended to allow WSDOT to compile and analyze accident data to better implement highway safety measures funded by the federal government without concern that such analysis would be used to support lawsuits against the State.

Although WSDOT has physical custody of the accident records based on the MOU, they are still State Patrol records and subject to disclosure if the State Patrol cannot show an appropriate exemption. While the State Patrol’s reports do provide information for WSDOT’s federally exempt accident tracking and analysis, WSDOT’s exemption does not bar disclosure because the State Patrol collects its accident information for other non-exempt law enforcement investigation purposes. Accordingly, the Court upheld the trial court's order requiring the State Patrol to produce the requested reports without limitation, e.g. the waiver of lawsuit rights that the State Patrol sought for Gendler to receive the requested records.

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The Alabama Supreme Court recently ruled that a public corporation (“Health Care Authority”) that owned several hospitals was a “local government entity” and therefore subject to the state’s Open Records Act.  Tennessee Valley Printing Company, Inc. v. Health Care Authority of Lauderdale County and the City of Florence, --- So.3d ----, 2010 WL 4272678 (Ala.). Despite the Health Care Authority’s protestations, the Court found that the corporation’s assets had been accumulated through use of statutorily-authorized governmental powers, including eminent domain and issuance of tax-free bonds, and that the corporation could not sell substantially all of its assets without prior approval of an authorizing government subdivision.

Promising confidentiality to bidders, the Heath Care Authority invited bids to acquire Authority hospitals. The Court found that the documents relating to the final sale of the hospitals, including bids and a letter of intent from the winning bidder, could be disclosed under the Alabama Open Records Act.  The Court noted that, “a private party cannot render public records exempt from disclosure merely by designating information it furnishes a governmental agency confidential.  The right to examine these records is a right belonging to the public; it cannot be bargained away by a representative of the government.”  The Court then rejected the Health Care Authority’s two proposed exemptions, finding that the exemption for recorded information received by a public officer in confidence was inapplicable, as was the exemption for records which, if disclosed, would be detrimental to the best interest of the public.

Washington’s Public Records Act (“PRA”) does not have a general exemption for bid materials. And, there is no Washington case law interpreting this issue.  However, it is likely that Washington courts would come to the same conclusion as the Alabama Supreme Court.  Confidentiality is not a stand-alone exemption, and bidders cannot rely on that designation to prevent disclosure of their materials.  See WAC 44-14-06002 (codifying the Washington State Attorney General’s Model Rules on Public Disclosure).  To prevent disclosure, records must fall under a specific PRA exemption category, such as “trade secrets” (or other statutory provisions that may limit disclosure of contract proposals).  And, if portions of a record fall under one of the statutory exemption categories, an agency may still release the record with redactions.

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In a unanimous decision, the Washington Supreme Court again came down in favor of expansive public records disclosure and narrow reading of exemptions from disclosure, this time in the realm of investigation records during pending criminal trials. Among the public records at issue in Seattle Times Co., et al. v. Serko & Chushcoff, et al., Case No. 84691-0 (Nov. 18, 2010) were materials gathered during the Pierce County Sheriff’s Office investigation of the Maurice Clemmons police killings. In 2009, Clemmons shot and killed four Lakewood police officers, then evaded law enforcement with assistance from his friends and family before being killed himself by a Seattle police officer. Soon after, criminal proceedings began against Clemmons’ alleged accomplices.

The Seattle Times and others requested records related to the Clemmons investigation from the Sheriff, which he intended to release. The criminal defendants sought to stop the Sheriff from producing “any and all” records responsive to the requests, claiming the records were exempt “because their production would impair their right to a fair trial.” More specifically, the defendants argued that release of the materials would result in media coverage that could taint the future jury pool. Ruling for the defendants, the trial court relied on RCW 42.56.540, which allows the superior courts to enjoin disclosure of a public record if doing so “would clearly not be in the public interest and would substantially and irreparably damage any person… or vital government functions.”

The Supreme Court, however, vacated the trial court’s order and reaffirmed its previous holding that RCW 42.56.540 is a procedural provision allowing for injunctive relief to enforce records release exemptions, but does not otherwise provide any specific exemption. See Progressive Animal Welfare Soc'y v. Univ. of Wash., 125 Wn.2d 243, 257, 884 P.2d 592 (1994). The Court allowed that fair trial rights may sometimes be a basis for suppressing records, but that in this context the withholding must be analyzed like any other precautionary measure aimed at issues regarding pre-trial publicity, e.g. change of venue or a gag order. But the defendants had to show a probability of unfairness or prejudice from pre-trial publicity. And then the trial court would need to inquire into other alternatives to suppression and “find with particularity” that it is more probable than not that unfairness or prejudice would result from disclosure. The trial court’s order here was not particular regarding resulting unfairness or prejudice and did not consider alternatives, so the Court found the order suppressing records had no proper basis.

Beyond this main holding, the Court discussed several other public records issues:

• Writs of mandamus remain a proper tool for third parties seeking disclosure of information related to a criminal trial because intervention is unavailable. But the Court acknowledges that Washington’s rule may be out of step with other states that allow direct third-party intervention in criminal cases for the purpose of information gathering.
• The Court rejected the criminal defendants’ theories that the work-product privilege extends from the prosecutor’s office (from which records were not requested) to the law enforcement agency (from which records were requested). Police are not merely the investigatory arm of the prosecutor. Work-product only includes material prepared by the attorney, not prepared on behalf of the attorney.
• The PRA exemption for law enforcement investigative records exemption, RCW 42.56.240, has limited application, generally covering only the time before a suspect has been arrested and the matter has been referred to the prosecutor.
   

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The tension between open meeting laws and laws restricting use of public property for political activities is highlighted by a reported incident out of the City of Sumner, Washington. According to the Tacoma News Tribune, a councilmember has filed a complaint with the State’s Public Disclosure Commission. The complaint is reported to assert the Mayor and other City officials allowed political speech (criticism of the councilmember who was running for a state legislative office) to continue at a public meeting of the Sumner City Council.

Washington, like many states, has a public meeting law that requires public access to meetings of a municipal governing body and related agencies. While public access does not grant a public right to speak at such a meeting (the public has a right to speak at public hearings, not meetings), local councils and commissions regularly provide for citizen comment at some time during a meeting’s agenda. The presiding officer of such a meeting can control the meeting to prevent improper conduct by a citizen. See Council Meeting Conduct and Citizen Rights under the First Amendment.

But, in addition to laws providing for open public meetings, many states prohibit the use of public facilities, funds and personnel to advocate for a political campaign or to support a ballot measure. See RCW 42.17.130, the Washington State law that address this issue. According to the News Tribune, the Sumner councilmember urged the Mayor to cut off a speaker at a city council meeting. The speaker was, according to the councilmember, using the council meeting to advocate for that councilmember’s opponent in the legislative race (and using the City facilities for political activity). The mayor, and apparently the rest of the city council, disagreed with the Councilmember under fire, and the speaker was allowed to continue. The Public Disclosure Commission will now decide whether to reconcile the potentially competing public policies of open public meetings and the prohibition on use of public facilities for campaign activity.

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In State ex rel. Bardwell v. Cuyahoga County Board of Commissioners, 2010 WL 4260674 (Oct. 26, 2010), the Ohio Supreme Court (by 5-2 vote) upheld an award of sanctions to a county and against a public records act (PRA) requester who filed a law suit one day after submitting public records act requests to a county prosecutor. The Court of Appeals had sua sponte ordered requester to show cause why sanctions under the court rules (CR 11) should not be awarded, and then awarded sanctions. 2009 WL 3387654. The Supreme Court affirmed the award of sanctions.

Bardwell, the public records act requester submitted three requests, one for the prosecutor’s document retention schedule; one for correspondence between the Cuyahoga County Board of Commissioners and a local newspaper; and, the third for drafts of an economic development agreement involving the county and private developers. The records-retention schedule was provided the same day; and the next day the prosecutor provided to Bardwell the correspondence with the local newspaper. The prosecutor also (again, one day after the request was received) informed Bardwell in writing that drafts of contracts were not subject to disclosure, and advised: “When an agreement is finalized and ready to be submitted to the Board of County Commissioners for approval, the final agreement and drafts will be made available.”

The court of appeals decided that “Bardwell’s filing of a complaint for mandamus, which was groundless in fact and legal argument, can only be the result of a willful action and constitutes bad faith. Thus, we find that Bardwell consciously violated [Court] Rule 11 and that sanctions must be imposed.” The Supreme Court affirmed, holding that the court of appeals did not abuse its discretion in awarding the sanctions. The Court noted ten reasons justifying the sanctions, including: (1) the fact that the complaint was filed one day after the records were in fact provided; not supported by a sworn affidavit as required by local rule; and, not amended after additional documents were provided; (2) all non-exempt records were promptly provided, mooting the records claim; (3) Bardwell did not provide for a transcript of the Rule 11 hearing, or submit exhibits, so there was literally nothing for the court to use as a basis to overturn the lower court’s discretionary decision; and,(4) Bardwell failed even to file a brief in opposition to the prosecutor’s motion for summary judgment, yet appealed the summary judgment ruling.

The lengthy dissent notes that grounds existed as a matter of law for the complaint; as drafts of contracts are not necessarily exempt from public disclosure.

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In a departure from other court decisions pertaining to electronic public records, the Missouri Court of Appeals declined to sanction city government officials for failing to produce certain email messages requested by a citizens group.

In Concerned Citizens for Crystal City v. City of Crystal City, ---S.W.3d---, 2010 WL 4195827 (Mo. App. E.D.), the Concerned Citizens for Crystal City (“CCCC”) opposed the City’s approval of a redevelopment plan that would turn an abandoned glass factory into an iron smelter. During a protracted discovery battle, CCCC pointed to several instances of discovery violations that it alleged were prejudicial.  The group was particularly incensed by the Mayor’s and the City Clerk’s failure to produce certain emails.  The Court of Appeals affirmed the trial court’s decision to deny CCCC’s request for sanctions against the City, noting that “the emails at issue were few in number.”  The Court acknowledged that the documents had not been retained either electronically or in hard copy.  The Court accepted the City’s explanation of the missing emails: “[T]hey cannot find them, they do not have them, and nothing was done intentionally, or in an effort to hide them.”

This decision can be contrasted with O’Neill v. City of Shoreline, ---Wn.2d---, ---P.3d---, 2010 WL 3911347, a recent case decided by the Washington Supreme Court.  In O’Neill, the Court found that metadata can be a public record and is subject to disclosure under Washington’s Public Records Act.  The O’Neill decision essentially requires that emails and other electronic documents need to be preserved in their original electronic forms, as paper copies will no longer be sufficient.  Even if only a small number of records is at issue (a single email was central to the O’Neill case), proper preservation is essential.  The Missouri Court of Appeals appears to condone a “best efforts” approach to preservation of electronic records, while the Washington Supreme Court has imposed strict penalties and even proposed searching the hard drive of a government official’s personal computer to locate and obtain an electronic public record in its native form.

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The attached news report from Port Angeles illustrates the problems of forgetting that joint agencies created by a combination of local governments are generally subject to the Open Public Meetings Act, to the same extent as the founding agencies themselves. Port Angeles pool director choice to be a 'do-over; Open Meetings Act is factor

In this case the board of a Pool District acted to hire a new director in a closed session after interviews. The Pool District was created by the City of Port Angeles and Clallam County The District Board apparently overlooked the Open Public Meetings Act (Chapter 42.30 RCW; “OPMA”) when it did so. The solution was to dry off, step back from the edge and dive anew into the hiring process – this time in public.

This circumstance serves as a needed reminder that new, combination agencies created by public agencies are also governed by the Open Public Meetings Act. While the definition section of the OPMA (RCW 42.30.020) does not specifically include an agency created by two or more public agencies, it does include language that covers “[a]ny subagency of a public agency which is created by or pursuant to a statute, ordinance or other legislative acts. . . .” RCW 42.30.020(c).

Washington courts have broadly interpreted both the OPMA and the Public Records Act (Chapter 42.56 RCW), as the legislation for both acts directs. An example of the breadth of this interpretation is Telford v. Thurston County Board of Commissioners, 95. Wn. App. 149, 974 P.2d 886 (1999). In Telford, the Court of Appeals held that the Washington Association of Counties and the Washington Association of County Officials were both public agencies for purposes of the Campaign Finance part of the Public Records Act. This case gave rise to what has come to be know as the “Telford test” for determining what is a public agency: (1) whether the entity performs a public function; (2) the level of government funding; (3) the extent of government involvement or regulation; and (4) whether the entity was created by government.

Here, the Pool District meets each of those four parts of the “Telford test.” [See, for example, Clarke v. Tri-Cities Animal Care & Control Shelter, 144 Wn. App. 185, 181 P.3d 881 (2008), applying the “Telford test, to hold that the Animal Shelter – even though a privately run corporation – was a public agency for purposes of the Public Records Act.] The OPMA therefore applies to the Pool District, and a public reconsideration of the District’s hiring decision was the right thing to do.

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Metadata is the new worry of public disclosure requests. Within the hard drive of any standard computer, a host of metadata is created with each underlying electronic document. Metadata describes the document’s history, tracking and management.

At least in Arizona and Washington that metadata is now also subject to a public disclosure, along with the underlying document itself, when requested. A recent Phoenix Law Review article analyses this proliferating phenomenon. David W. Degnan, Accessing Arizona’s Government: Open Records Requests for Metadata and other Electronically Stored Information after Lake v. Phoenix, 3 Phoenix L. Rev. 69 (2010).

Lake v. Phoenix, 222 Ariz. 527, 218 P.3d 1004 (2009), involved a request by a demoted City of Phoenix police officer, attempting to show through documents’ metadata that comments about his performance were backdated to conceal retaliation for his whistleblowing activities. The Arizona Supreme Court held that this metadata (showing the creation and history of the documents) was a public record and must be disclosed. In Washington, the State Supreme Court arrived at the same conclusion regarding metadata in O’Neill v. City of Shoreline, _____Wn.2d____, ____P.3d____, (2010) WL 3911347 (2010). There, the requestor of the metadata was attempting to find transmission history of the author and recipients of an e-mail. The email was originally sent to the Deputy Mayor’s home computer, and later discussed in a Council meeting. A print copy of the email was provided to the requestor in response to the original request. But, the requestor later sough the metadata for the email that had by then been deleted from the Deputy Mayor’s home computer. The Washington Supreme Court found that the metadata associated with that e-mail was also a public record and that the computer drive on the Deputy Mayor’s home computer should have been searched to find that metadata. The email, and the underlying metadata, had become part of the City’s public records.

The issues with the nature of electronic records and their storage are multiplying. As the Law Review article points out, a study published as early as 2003 suggested that 93% of all communication was then conducted in an electronic medium; and the percentage has only risen. In addition, there are divergent standards for keeping and retrieving electronic records in response to actual or threatened litigation in contrast to public records act requirements. In electronic discovery, there can be a court enforced reasonableness standard. In the public records context there may be no such limitation. But, public records laws in Washington and most other jurisdictions do not require a public agency to produce any new document or summarize documents in response to a public records request. And, a courteous discussion with a requestor may eliminate the need to search for or retrieve metadata associated with any requested documents, as the requestor may have no interest in that level of electronic scrutiny.

The Law Review article concludes with the well recognized caution that in the end there “is the need for state and local government agencies to have electronic record management procedures (and resources) in place to respond quickly and efficiently to future open records requests involving ESI [electronically stored information].” The record management systems for ESI must also include metadata, at least in Arizona and Washington.
 

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