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

The Washington State Court of Appeals recently upheld the denial of a public employee’s repeated requests for an agency’s investigative records following the employee’s termination. The Court also found that the trial court did not abuse its discretion by imposing sanctions (under superior court Civil Rule ("CR") 11) on the employee for frivolous records requests.  Phillips v. Valley Communications, Inc. (unpublished decision issued December 27, 2010).

The employee, Phillips, who worked at a 911 call distribution center, had complained about his supervisor, triggering agency investigations. Phillips was terminated, after a psychiatric evaluation concluded he was not fit for duty.

In response to his request for documents, Phillips received copies of his personnel and medical files and a copy of the psychiatrist’s report. However he was not given the agency’s complete investigative file, much of which the agency contended was exempt from the Washington Public Records Act (“PRA”) under attorney-client and work product privileges.  Phillips then brought suit in superior court challenging the agency’s compliance with the PRA. Following in camera review, the trial court issued several orders, none of which were appealed by the employee. Meanwhile, during this initial proceeding, Phillips continued to make repeated records requests to the agency for the very same documents, as well as “clarifications” of the agency’s earlier responses. 

Several months later, Phillips brought a second suit claiming that the agency failed to comply with the PRA.  The agency moved for injunctive relief. This time, the trial court denied Phillips’ requests, holding that they were bared by res judicata, collateral estoppel and the statute of limitations, since Philips had never appealed the final order from the first superior court proceeding.  The trial court also awarded CR 11 sanctions against Phillips for his frivolous and repeated PRA requests.  But, the court denied the agency’s request for an injunction under RCW 42.56.540 (enjoining examination of public records if such examination would not be in the public interest or would substantially and irreparably damage a person or vital government function). The Court of Appeals upheld the trial court’s rulings.

This decision highlights the issues courts face when balancing the open-government goals of the PRA with the reality of abusive and/or frivolous requestors.  In the employment context, a PRA request can sometimes serve as an easy way for a disgruntled public employee to burden a former employer.  However, CR 11 sanctions are not commonly imposed on requestors. While the Philips opinion provides limited analysis on this topic, the employee’s repeated and unsupported requests for the same information appear to be the root cause of the Court’s hard-line response. However, the Court also denied the agency’s request for injunctive relief against Phillips. The Court reminds us, once again, that exemptions to the PRA are narrowly construed; despite the inconvenience and burden imposed on an agency by a difficult requestor, the agency must still identify its reasons for withholding records and provide sufficient evidence to support its exemption claims.

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The Everett Herald reported today that the City of Monroe had agreed to pay over $150,000 to settle a five-year old dispute involving disclosure of public records. According to the Herald, the claimant spent approximately $115,000 in attorney fees to litigate this drawn-out dispute.

The subject of the request was e-mail traffic from and to City officials regarding City Council meetings in March 2005. The City, however, refused to provide unredacted e-mail messages from the home computers of various council members, citing privacy protection exemptions in the Public Disclosure Act. The City also claimed that it was not required to provide electronic copies of the e-mail records.

The City won in Superior Court, but lost in the Court of Appeals Mechling v. City of Monroe, 152 Wn. App. 830, 222 P.3d 808 (2009). The Court of Appeals held that e-mails are “records” – even on a home computer - under Washington’s Public Records Act. The City bears the burden to demonstrate why it could not produce electronic copies of those e-mails, if requested. Indeed, since the Mechling decision in 2009, the Washington Supreme Court has ruled that even the “metadata” contained in electronic e-mails is a public record and must be produced when requested. O’Neill v. City of Shoreline, ___Wn.2d___, 240 P.3d 1149 (October 7, 2010).

The Court of Appeals in Mechling also ruled that e-mail and the home e-mail addresses of council members who sent e-mail messages about City business from their home computers was not protected by the privacy exemptions of the PDA. First, the Court noted that the council members had themselves made those e-mails subject to public disclosure by using their home computers for City business. Second, the Court stated that the privacy protections apply to information in a personnel file, not to information found on business e-mails.

The Mechling case serves as yet another reminder that when elected officials use their home computers for government business, those records – including their home e-mail addresses – become subject to public disclosure.

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The Dallas Morning News sought payroll data from the State of Texas. The Texas Comptroller responded with detailed information, including name, age, race, sex, date of initial employment and pay rates. But the Comptroller withheld the employees’ birth dates. The Comptroller then asked for the opinion of the Texas Attorney General, who concluded that the date of birth information could be disclosed.

An action commenced and the trial court and Court of Appeals agreed with the Attorney General. On December 3, 2010, the Supreme Court reversed, holding “a disclosure of state employee birth dates would constitute a clearly unwarranted invasion of personal privacy and therefore exempted from disclosure” under the Texas public disclosure law.

In its consideration, the Supreme Court made specific reference to the public harm caused by identity theft and that the availability of birth dates may facilitate identity theft. The Texas Supreme Court noted other decisions, particularly court decisions under the Federal Freedom of Information Act, that “birth dates implicate substantial privacy interests.”

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The Port of Portland did not have to disclose a joint defense agreement among the lawyers for several parties potentially responsible for cleanup of the Portland Harbor Superfund Site.  A public interest group sought disclosure of the agreement under Oregon’s Public Records Act (“PRA”). The trial court and the Court of Appeals held that the agreement was exempt from disclosure under ORS 192.502(9)(a). Port of Portland v. Oregon Ctr. for Envtl. Health, 238 Or. App. 404 (Or. Ct. App. 2010. The Oregon exemption covers “public records or information the disclosure of which is prohibited or restricted or otherwise made confidential or privileged under Oregon Law.” The exemption encompasses materials that are subject to the attorney-client and work product privileges codified in Oregon’s Evidence Code, including “confidential communications made for the purpose of facilitating the rendering of professional legal services” and communications “by the client or the client’s lawyer to a lawyer representing another in a matter of common interest.” OEC 503(2). Despite the public interest group’s protestations that the agreement did not fit within the exemption, the Court held otherwise.  The Court held the agreement was exempt from disclosure under Oregon’s PRA as a confidential legal communication generated as a matter of common interest among lawyers representing the parties potentially responsible for the Superfund site.

Washington’s Public Records Act similarly contains exemptions for documents subject to attorney- client privilege. Washington’s general attorney-client privilege statute, RCW .60.060 (2)(a), is considered an "other statute" that provides for exemption from disclosure, as described in RCW 42.56.070 (1) of the PRA.  In addition, RCW 42.56.210 (1)(j) exempts attorney work-product involving a "controversy," i.e. completed, existing, or reasonably anticipated litigation involving the agency. See WAC 44-14-06002 (codifying the Washington State Attorney General’s Model Rules on Public Disclosure).  In general, the attorney-client privilege covers records reflecting communications made in confidence between a public official or agency employee acting in the performance of his or her duties, and an attorney serving in the capacity of legal advisor for the purpose of rendering or obtaining legal advice. The privilege also covers records prepared by the attorney in furtherance of the rendition of his or her legal advice. Id.  For example, recognizing a public interest in defending against civil liability, the Washington Supreme Court applied privilege protections to documents created by a school district’s legal team during the team’s investigation of a student’s death giving rise to potential liability. Soter v. Cowles Publ’g Co., 162 Wn.2d 716, 174 P.3d 60 (2007).

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The King County Council recently took action to ensure that the County’s use of social media, including Twitter and Facebook, complies with the County’s obligations under various King County and Washington public record laws, including Chapter 2.14 K.C.C. and Chapters 40.14 and 42.56 RCW. 

A number of County agencies are beginning to use online social media to engage and communicate with the public.  For example, Metro Transit uses its Twitter page to update commuters on the status of various bus routes – a tool that was especially important during the recent November snow storm. In light of the growing use of Facebook, King County Elections now uses its Facebook page to encourage young voter registration and to educate King County residents about the County’s mail-in ballot system. The King County Council wants to ensure that public posts on these and other County social media sites comply with public record laws.

The ordinance passed by the King County Council (Ordinance 2010-0507, Dec. 13, 2010) created a Social Media Advisory Group responsible for providing the Council with policy options for ensuring ongoing compliance. The Advisory Group will be made up of four representatives of the King County Public Records Committee, together with representatives from various King County agencies and local not-for-profit agencies.

The Advisory Group is to produce a Social Media Policy Options Report for the Council by March 31, 2011. The report is to include a range of policy recommendations, including: (1) options for effective use of social media to communicate with the public; (2) an online training module for employees authorized to use social media on behalf of King County; (3) a description of existing policies and laws that regulate King County’s use of social media; and, (4) options for cost effective ways to address the public records retention requirements.

The Ordinance also directs King County agencies to identify those employees authorized to use social media for County business and to ensure that those employees complete the training program developed by the advisory group. 

The list of public agencies using social media continues to grow. As new forms of social media are developed and adopted, government agencies should be proactive to ensure compliance with applicable public record laws. See Sven Peterson’s article: “Public Records can only be Destroyed in Accordance with Appropriate Records Retention and Destruction Policies.”  

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The Washington Attorney General concluded that committee meetings of a city council may require additional notice when enough other council members attend the committee meeting to make a quorum of the full council. Interpreting the Open Public Meetings Act (OPMA), the Attorney General Opinion No. 9 (AGO 2010 No. 9, November 30, 2010), the Attorney General concluded:

The Open Public Meetings Act requires that notice be properly given of a meeting of the governing body. This requirement is not satisfied by notice given for a meeting of a standing committee of a city council as a governing body, where a quorum of members of the city council attend the meeting and take action as defined in the act, such that a meeting of the city council as a governing body takes place.

A reference to the Attorney General Opinion follows: http://www.atg.wa.gov/AGOOpinions/Opinion.aspx?section=archive&id=26916

Particularly important to note is that discussion by a committee may be an “action” under the OPMA definitions. As a result, a better practice for an agency that uses committees (whose meetings are subject to the Open Public Meetings Act) is to include as part of meeting notice (in adopted code, resolution or otherwise) that the committee meeting is also a meeting of the legislative body (e.g., city council). An additional report on the Opinion is at http://www.pnwlocalnews.com/whidbey/wnt/news/111228679.html.
 

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