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

Once again the Washington Supreme Court will be called upon to evaluate the reach of the Public Records Act (“PRA”) in the digital age. On Thursday, January 27, 2011, the Court entertained oral argument in Neighborhood Alliance of Spokane County v. County of Spokane, No. 84108-0, a case involving Spokane County’s failure to produce missing electronic records ostensibly stored (then erased) off the hard drive of an old, retired County computer.

In 2005, Alliance, a nonprofit government accountability group, made several public records requests seeking documents they believed would expose alleged nepotism in County hiring processes. In response to Alliance’s request, County officials checked the hard drives of the computers its employees were currently using, but did not search computers that were no longer in use (no matter how recently the computers had been retired). The hard drive of a particular computer that may have held the requested information was wiped clean and thereafter, despite Alliance’s outstanding records request, the retired computer was not searched. The parties disagreed as to whether the record did exist on the hard drive, whether the County conducted a proper search, whether the County violated the PRA, and if so, the appropriate level of penalties. The Court of Appeals held that the County did violate the PRA by failing to conduct a “reasonably adequate” search for the complete electronic information requested, and remanded the case to the trial court to determine the resulting penalties, costs and fees.

As reported by the Spokesman-Review, the Supreme Court will revisit these issues in depth.  In particular, the Justices will be asked to decide what constitutes a “reasonable” search of such electronic records in a world where computers are constantly upgraded, replaced and repurposed.  Must agencies regularly search old computers?  All electronic storage systems?  How soon can a hard drive be wiped?The Court will also face the issue of the financial burden on the County.  For example, the case raises the question of whether $100 daily penalties should keep accruing or whether the clock should have stopped running on any penalties at the time the hard drive was wiped clean.

Neighorhood Alliance comes on the heels of a another Washington State case addressing the intersection of electronic discovery and the PRA.  See O’Neill v. City of Shoreline, 240 P.3d 1149 (2010) (holding that metadata is subject to disclosure as a public record).  We’re likely to see more cases on this topic as agencies attempt to determine their responsibilities under the Act as they incorporate new practices and technologies in the digital age.

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The New York Times has been reporting on how open public records laws are being enlisted in the fight against governmental corruption – not here in the United States – but on the other side of the world, in rural India. In 2005, India joined a growing list of developing countries to enact a national open public records law, known as the Right to Information Act (“RIA”).  The legislation’s preamble asserted that “democracy requires an informed citizenry and transparent information” and identified curbing governmental corruption as a central goal of the RIA. The RIA requires governmental agencies to respond to citizen requests for information within 30 days of receiving a request. Similar to Washington’s Public Records Act, 42.56 R.C.W., and the federal Freedom of Information Act, 5 U.S.C. § 551-559, governmental agencies that fail to comply with information requests are subject to daily penalties. 

In 2010, the New York Times reported on how the RIA was leveling the playing field between corrupt governmental bureaucrats and India’s poor.  Right-To-Know Law Gives India’s Poor a Lever, New York Times, June 28, 2010. The piece included a number of stories illustrating how India’s poorest citizens used the RIA to spur governmental bureaucrats into action.  One story involved an impoverished mother of three who had been waiting for four years to receive a housing assistance grant. After seeing her well-to-do neighbors receive grants ahead of her, the mother used the RIA to request records detailing who had received grants in her community and why. Days after submitting the request, governmental officials approved her grant. In another village, community members became fed up with a public health care worker who rarely showed up to staff the community health clinic. The citizens utilized the RIA to request copies of the clinic’s attendance records. With her attendance record revealed, the health care worker started showing up every day. Success stories like these have provided hope to good governance advocates that India is moving in the direction of open and transparent government.

However, on January 22, 2011, the New York Times published a follow-up story showing how opponents of open government have begun using violence to intimidate and silence requesters. High Price for India’s Information Law, New York Times, January 22, 2011. The article described one case where a requester was murdered after uncovering evidence about an illegal mining operation that may have involved government officials. The author estimated that at least a dozen requesters have been murdered since the RIA was enacted in 2005 and scores of others have been beaten and harassed. This violence is apparently having a chilling effect on many would-be activists. 

Time will tell whether India’s nascent open public records policies can survive this backlash. 

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Following up on my January 20 blog post, the Washington Court of Appeals in an unpublished opinion has denied another request for public records by an inmate of the state prison system. Fisher v. Dept. of Corrections, January 24, 2011. Read opinion here.

Fisher, an inmate of Washington’s Monroe Corrections Complex, alleged that a fellow inmate had assaulted him in the prison law library. To support this allegation, Fisher asked for surveillance tapes of the library. The Department refused, citing RCW 42.56.240(1) which exempts “specific intelligence information compiled by . . . penology agencies. . . the nondisclosure of which is essential to effective law enforcement.” The Department argued that the tapes, if disclosed, could allow the prisoners to learn the capabilities and the limitations of the prison’s extensive camera surveillance system, and thereby “allow inmates to determine weaknesses and exploit those weaknesses by assaulting other inmates or committing crimes and prison infractions.”

The Court of Appeals found the unrefuted affidavit of the Department’s director of prisons division persuasive, and determined that “Intelligence information provided by video surveillance systems therefore falls squarely within the core definition of ‘law enforcement.’” The nondisclosure of the surveillance tapes was thus found by the Court to be “essential to effective law enforcement."

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As more state and local governments are utilizing the internet and social media to reach out to citizens, Washington and 14 other states recently reached an agreement with Facebook that changes the website’s standard user agreement as applied to state and local agencies. In a press release from his office, Washington State Attorney General Rob McKenna acknowledged the growing importance of Facebook in helping state agencies and local governments to communicate with constituents.

Nearly a year in the making, the amended terms alter Facebook's standard terms as applied to state and local governments utilizing Facebook Pages for official use. Facebook Pages are different from the average individual person’s profile in that they are intended to promote businesses and other commercial, political, or charitable endeavors. The agreement, already in effect and applied retroactively to governments with an existing Facebook presence, eliminates Facebook’s choice of venue and governing law clauses while limiting a government agency’s indemnification of Facebook for the agency’s actions to the extent permitted in the agency’s jurisdiction. In Washington, the site’s general indemnification terms, protecting Facebook from “claims related to [a government’s] actions, content or information on Facebook,” may apply to local governments and state agencies as these entities generally have authority to contract for indemnification.

While this agreement resolves some issues facing governments interested in developing a social media presence, there will likely be continued growing pains as bureaucratic organizations deal with the increasingly complex electronic world. Local governments will continue to manage concerns on many social media fronts, including public records in cyberspace and user comments on Facebook and Twitter posts.

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The U.S. Supreme Court will soon decide whether the Freedom of Information Act (“FOIA”), 5 U.S.C. § 551-559, protects a corporation’s interest in “personal privacy.” In September of 2009, the Third Circuit ruled in favor of AT&T and against the Federal Communications Commission (“FCC”) in finding that FOIA’s law enforcement exemption protects a corporation’s interest in “personal privacy.” AT&T Inc. v. Federal Communications Commission, 582 F.3d 490 (2009). The FCC has appealed the ruling to the U.S. Supreme Court, which heard arguments in the case on January 19, 2011. See Court Weighs Whether Corporations Have Personal Privacy Rights, New York Times, January 19, 2011.

FOIA exempts from mandatory disclosure records collected for law enforcement purposes to the extent disclosure “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C). FOIA does not define personal, but does define person as “an individual, partnership, corporation, association, or public or private organization other than an agency.” 5 U.S.C. § 551(2). 

This case arose from a FCC investigation into whether AT&T overcharged the U.S. government for an AT&T program. Under the program, AT&T provided equipment and services to elementary and secondary schools and then billed the U.S. government for program costs. In 2004, AT&T discovered that that it may have overcharged the U.S. government for some services, and voluntarily reported the issue to the FCC’s Enforcement Bureau. The FCC investigated the matter and the issue was ultimately settled.

Following the investigation, CompTel, a trade association representing AT&T competitors, submitted a FOIA request to the FCC seeking records relating to the AT&T investigation. AT&T opposed the disclosure, arguing that the records were collected as part of a law enforcement investigation and the disclosure of the records would constitute an unwarranted invasion of AT&T’s privacy. The FCC rejected AT&T’s argument stating “personal privacy” does not apply to corporations. 

AT&T ultimately appealed the decision to the Third Circuit, which ruled in favor of AT&T.  The Third Circuit held that “FOIA’s text unambiguously indicates that a corporation may have a ‘personal privacy’ interest within the meaning of the [law enforcement exemption].” 582 F.3d at 498. The Third Circuit remanded to determine whether the disclosure of these particular documents would constitute an unwarranted invasion of AT&T’s personal privacy.

The Third Circuit’s opinion noted that the U.S. Supreme Court has never squarely rejected a corporation’s ability to claim a personal privacy interest.  The Supreme Court’s decision in Federal Communications Commission v. AT&T Inc. will test this precedent. 

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Public records act requests by prisoners have long been an issue for jail administrators and for the courts. Creative gaming of public records act requests by prisoners has bedeviled both.

While the State of Washington’s courts have liberally applied the reach of public records act requests, both the legislature and the courts have imposed limitations in the area of prisoner requests. In 2009, the Washington legislature amended the state’s Public Records Act expressly to allow for an injunction against repeated or abusive public records act requests by prisoners under specified circumstances. RCW 42.56.565.

On January 19, 2011, Division II of the Washington Court of Appeals issued an opinion which confirmed the validity of Department of Corrections’ rules restricting the ability of prisoners to personally inspect most public records – rather than receive copies at the prisoner’s expense. Gronquist v. [Washington] Dept. of Corrections.

In Gronquist, the Court of Appeals upheld Department rules that allow a prisoner to personally inspect only his or her central file or medical file. Otherwise, a prisoner is required to pay $0.20 per page plus postage for photocopies of any requested documents that will then be mailed. The Court ruled that the general rule allowing a requestor to either inspect public records in person or obtain copies (or both) does not necessarily apply to a prisoner whose rights are already constrained. The Court recognized the broad reach of the Public Records Act, but also recognized the countervailing need of the Department of Corrections mandate to manage prison inmates. Accordingly, if a prisoner refuses to pay for copies, the Department is not obligated to provide the requested records or to allow for personal inspection of the records at no charge. This decision follows an earlier opinion by Division III of the Washington Court of Appeals which adopted the same principle. Sappenfield v. Dept. of Corr., 127 Wn. App. 83, 110 P.3d 808 (2005), review denied, 156 Wn.2d 1013.

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In a 9-0 decision, the Washington Supreme Court upheld rejection of a public records request for court records in a court’s possession, once again reaffirming long-standing case law. The decision in Yakima County v. Yakima Herald-Republic, Case No. 82229-8 (January 13, 2010) also remanded the case for potential disclosure of similar records held outside of the court by other agencies.

The Yakima Herald-Republic filed public records requests regarding funding the defense of two indigent criminals charged with first-degree murder. The newspaper made its requests to both the Yakima County Superior Court and several outside agencies who had involvement with paying the defense expenses . These requests were made after the newspaper had sought to have the court provide the records, which the case judges had “sealed,” preventing disclosure of documents under the court administrative rules.

Washington courts have, since at least 1986, repeatedly rejected argument that courts are “agencies” subject to Washington’s Public Records Act, Chapter 42.56 RCW. See, Nast v. Michels, 107 Wn.2d 300, 730 P.2d 54 (1986). The newspaper tried to distinguish the Yakima case from the Court’s precedent by arguing that financial aspects of the case were merely administrative. While this argument would seem to be unremarkable, the newspaper urged that the defendants had two judges assigned, one to handle the financial matters and one to try the case. Because the financial matters were separate from the actual court proceedings, the financial documents should be disclosed.. (Many states, including Washington, require attorneys for indigent defendants to obtain court authorization for investigation and expert witness costs.)

The newspaper also called the judicial approval of indigent defense expenditures “curious,” but the Court succinctly rejected the newspaper’s public records argument as “without merit.” The Court went on to note that judicial approval of defense funding is provided for in both the federal and Washington rules on criminal procedure; dividing judicial responsibilities in potential capital cases is common (even required in California); and, indigent defense funding is still a judicial issue even if handled by a second judge.

For court documents that had been provided to outside agencies, the Court ruled that the Public Records Act applies and that the agencies should have complied with the PRA. The Supreme Court ordered that the trial court would first need to review the materials in question to determine if the trial court had forwarded the documents to the outside agencies with a protective order or other instructions “sufficient to retain their character as judicial documents” or if a PRA exemption to disclosure applies. These outside agencies may be subject to the PRA daily penalties (for delay in disclosing records) if the trial court finds they were not protected by court order and should have been disclosed.
 

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The Association of Washington Cities, a non-profit organization, has reported on potential bills to be considered in the upcoming legislative session. In working with other local government groups, bills have been developed that would allow agencies to charge the actual personnel costs exceeding five hours of staff time per month on a request. A second bill would provide for a voluntary conference between an agency and a requestor before any court action could be filed. If a conference is not accepted, a court may reject daily penalties upon finding a violation of the Public Records Act. These bills are in addition to proposals from the Washington Attorney General, including one that would establish an Office of Open Records. The Attorney General’s proposal would provide for resolution of public records disputes through the State’s Office of Administrative Hearings, rather than through the courts. See, “McKenna: Rein in prisoners’ use of Public Records Act” from The Spokesman-Review.

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In our posting on November 18, 2010, we noted the reported complaint by a Sumner City Councilmember against the City's mayor and others. The claim arose from comments adverse to the councilmember made in an open, public meeting of the Sumner City Council. The councilmember asserted that the use of public city council meetings for such political comment was a violation of law. With limited exceptions, Washington law prohibits the use of public property and resources for political purposes. See RCW 42.17.130. The Tacoma News Tribune has now reported that the Councilmember's allegations have been rejected by the State's Public Disclosure Commission.

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