Are Penalties Applied Separately to Each Public Records Response? It Depends.

In Double H. L.P. v. Washington Department of Ecology (No. 29918-0-III), Division III of the Washington Court of Appeals clarifies that a court is not required to impose separate penalties on each improper public records response. Instead, a single penalty may be applied to a series of responses when they relate to the same subject matter.

The Department of Ecology received an initial records request from Double H. L.P. regarding Ecology’s investigation of illegal hazardous waster disposal on Double H’s farm. Double H. later followed up with a “refresher” request for records created after the date of the initial request. Ecology responded by producing records on nine different occasions and posting an exemption log that identified certain records withheld from production under various exemption claims.

Ecology conceded that withholding some of the documents violated Washington’s Public Records Act. However, the trial court concluded that only one group of records existed for penalty calculation purposes and that a separate penalty would not be applied to each separate production date. The Court of Appeals upheld the trial court’s reasoning and rejected Double H.’s argument that multiple production installments require multiple penalty groups (which, not surprisingly, would have substantially increased the overall penalty awarded).

The Court of Appeals applied an abuse of discretion standard and reviewed whether the trial court’s decision was manifestly unreasonable or based on untenable grounds. It expressly recognized that nothing in the PRA, and nothing in the Washington State court cases interpreting the PRA, requires trial courts to create penalty groups in a specific fashion. 

In summarizing its holding, the Court of Appeals stated that selecting a same-subject group for penalty purposes (rather than a group based upon production dates) encourages agencies not to withhold records until fully assembled and promotes early record production. While this decision does not necessarily prevent a trial court from applying a separate penalty to each record production, it does provide trial courts the flexibility to consider a public agency’s attempt to provide responses in a timely manner when records and information first become available.

Friday LOG Links

US Department of Justice wins Rosemary Award for worst open government performance in 2011. Some journalists report Attorney General Eric Holder misunderstood the award and responded “you like me, you really like me” but that cannot be confirmed as 18 ½ minutes of the awards banquet video were erased. [National Security Archive – George Washington University]

The Open Government Singularity is nearly upon us, but California might be getting there just a bit quicker. One day, all government business and expenditures will relate to public records and open meetings; all public records requests will be about the expense of public records lawsuits. [The Sacramento Bee – Capitol Alert]

The high cost of reviewing public records about public records requests: Hawaii agency expects cost of producing a year’s worth of requests to run $123,000. [Honolulu Civil Beat]

Would you be reading this if it were printed in 8-point type next to the obituaries? Journalists are fighting to keep published public notice requirements in place. [Society of Professional Journalists]

British civil servants sound like American civil servants when it comes to public records requests, except for the accent. A survey by the UK Ministry of Justice finds their FOIA “has failed to increase understanding of government, may have reduced trust and has done little to improve decision-making in Westminster.” [The Guardian]

 

Tags:

Friday LOG Links

You’re not from around these parts – 4th Circuit upholds Virginia’s denial of non-residents’ public records requests. [Courthouse News Service]

CSPAN Nine in the making? Senate Judiciary Committee votes in favor of allowing television cameras into the U.S. Supreme Court; Scalia retorts that only town criers were contemplated by the Founders. [Citizen Media Law Project]

New Jersey municipalities attempt to limit videotaping of council meetings. What happens if Snooki and J-Woww show up unexpectedly? [The Record/NorthJersey.com]

New tools, new arguments. Cities struggle with tablet computing and text messages during meetings. At least the fights aren’t about Angry Birds and sexting in session. Yet. [Petaluma Press Democrat] [Voice of OC]

Washington cities are trying to balance blogs, tweets, pokes, and likes with laws written four years before Steve Jobs sold his first Apple. [Kitsap Sun]

 

Seattle Times reports about Gold Bar Community Relations

Update: The Seattle Times corrected its coverage to reflect that Councilmember Wright was convicted of domestic violence assault in 2007.

On February 5, 2012, Emily Heffter from the Seattle Times reports about Gold Bar:

Most small towns have a local busybody.

In Gold Bar, it's Anne Block, whose hyperlocal news site is a hotbed of rumors and accusations. She writes that city officials are "evil people," "wife-beaters" and "promiscuous." There also are restaurant recommendations and a recipe for peanut-butter cups.

On her site, goldbarreporter.org, Block likened the former mayor to a dog and accused the former City Council of tampering with meeting minutes, hiding public records and making Gold Bar like "a religious fundamentalist town in Iran."

Block, 44, is an attorney who has become one of Snohomish County's most notorious activists as she's taken her crusade for a more transparent government online. She's also become a divisive figure in tiny Gold Bar, which is dealing with money problems while trying to respond to Block's four lawsuits and extensive requests for public records.

Block, a Massachusetts native, moved to Gold Bar in 2006 after law school and started her news website to try to publicize what she alleges as corruption at Gold Bar City Hall. She is aided by unsuccessful City Council candidates Susan Forbes and Joan Amenn.

Block and her partner visited the Seattle area and loved it so much they decided to move to Gold Bar so she could set up her employment-law practice. Her partner, Noel Frederick, also has an interest in politics and has run for City Council.

"What motivates us? Basically, in a nutshell, it's open government and the idea that a handful of people can effectively make change, just like Martin Luther King and Elizabeth Cady Stanton and Susan B. Anthony," Block said.

Asked whether they're certain everything on the site is true, Block and Forbes answered simultaneously:

"Yes," said Block.

"It may not be perfectly true," said Forbes, "but there's something in it that's true."

In September, Block posted a story alleging that County Executive Aaron Reardon spent taxpayer money on a trip "with his mistress and a former Snohomish County employee."

The allegation came out of the blue during Reardon's re-election campaign — at the top of a story titled: "Reardon's deck of cards loaded with jokers and criminals" that featured his photo floating in front of a background of animated falling confetti.

A month later, a county employee did come forward and say she had traveled with Reardon on county trips as part of an affair. The State Patrol is investigating whether Reardon misused county funds. The executive has denied criminal wrongdoing, but has not commented on the alleged affair.

There's a gray line between opinion and fact, said Judy Endejan, who practices media law in Seattle. But the language on Block's website raises a red flag, she said.

"Right now we're in an age where, you know, it's kind of the Wild West because people feel like they can just say anything on the Internet and not have to suffer the consequences, and that's not really true," she said.

'Too much corruption'

The Gold Bar Reporter's newsroom is Block's kitchen table in a subdivision with a mountain view. There in front of her laptop — with her snowflake tablecloth and collection of souvenir spoons — she churns out articles about local officials and puts them online.

"We decided there's been just too much corruption out here in Gold Bar, so we had to do something," she said in an interview she agreed to do via Skype because she believes her phone lines are tapped.

Eventually, Block, Amenn and Forbes would like a traditional community news site. But they said there's so much corruption they don't have time to write many feature stories.

Block started going to City Council meetings a few years ago and became annoyed that the mayor, Crystal Hill, was bringing her kids to the meetings and leaving them in the break room. So, she said, she emailed Hill and told her to get a baby-sitter because they were disrupting the council.

Later, Block requested all of Hill's email, then accused her of a whole list of things: affairs, extortion, hiding public records, and she even disclosed an alleged medical condition. She put it all on her website, because, she said, "Why not?"

Hill didn't want to comment for this story. She married John Pennington, the head of the Snohomish County Department of Emergency Management, and moved out of town in 2009 before her term ended.

Hill has said she resigned because of relentless harassment.

She told The (Everett) Herald shortly after she resigned that someone using an alias had been bombarding her, her family and her Seattle employer with emails accusing her of using drugs, supplying drugs to city staff and having an affair with a fired city employee. Hill said at the time the allegations were false and she had little recourse.

For Block, one records request led to another, and another, and several with Snohomish County government, as well. One of her lawsuits seeks records that mention her own name.

"She's a hot topic in town," said City Councilmember Christopher Wright. "It's not a secret that Anne Block is suing the city and making wild accusations about people."

The Gold Bar Reporter calls Wright "a deviant criminal, wife beater and liar." Court records show Wright has never been charged with domestic violence, though he was convicted of assault and drunken driving almost 20 years ago.

Wright said he has had to answer co-workers' questions about whether he really beat his wife. (He says he didn't.)

"People would come up to me and say, 'Oh, we read about you online.' And that's when it really, really got to a point that I really would have loved to sue her," he said.

Block estimates she's read 125,000 city and county emails. She knows a lot of dirt on everybody — and her articles range from true to partly true or exaggerated.

Says Endejan, the media lawyer: "If you accused someone of being a drunken wife beater, I would probably drill you pretty hard on what facts you had to support that, and one drunken-driving conviction 25 years ago probably wouldn't do it for me."

But everyone is so afraid of being sued by Block that they don't dare try to stop her, said Mayor Joe Beavers. On Block's site, the mayor is nicknamed "Tricky Beavers."

Gold Bar is home to about 2,000 people. That means Block, Forbes and Amenn run into their subjects at the grocery store, the gas station, everywhere.

The situation has taken a toll on their relationships with the locals.

After handling Block's records requests for a couple of years, the city clerk said in a court declaration that she was uncomfortable serving as a witness in a lawsuit because the Gold Bar Reporter website had created an environment that was "contentious and hostile."

Block doesn't go into City Hall alone, and she recently bought a gun because she said someone tried to kick in her door.

"I've had death threats. I've had beer bottles thrown on my front lawn."

Actually, she clarified, it was a half-filled can of Miller. She has photos she says prove someone put a tracking device on her car.

"I wonder when I turn the key to my car one day whether it's going to blow up."

Chunk of budget

In 2010, Gold Bar spent $70,000 of its $573,898 budget responding to public-records requests, almost all of which were from Block and Forbes, according to a filing in Snohomish County Superior Court.

"As mayor, I have had little time to do anything but respond to the PRRs that have been submitted and continue to be submitted by Forbes and others," Beavers wrote in a statement for the court.

Beavers is lobbying the Legislature for a law that would allow cities to deny records requests they deem harassing.

The city has paid thousands of dollars to an Issaquah technology company to dissect Hill's personal Blackberry to ferret out her disclosable emails. Gold Bar hired a sixth employee and transferred one of its two maintenance workers into City Hall to help respond to requests, according to the mayor's court affidavit.

Wright says they are spending so much on records requests, they can afford to snowplow only the major arterials.

City officials say they don't read the Gold Bar Reporter ("except for humor," said Beavers). But they have saved hundreds of printouts documenting the last three years of postings.

The Jan. 10 City Council agenda had 10 items, and eight of them were regarding lawsuits filed by either Block or Forbes.

The crusade is costing Block tens of thousands of dollars of her own money, she said, but she won't back down because she's so committed to cleaning up government.

In a September 2009 posting, Block summed up her potential impact this way:

"For years, people like Crystal Hill ... have controlled and manipulated Gold Bar residents and local politics. But with an activist attorney in Gold Bar, along with a new online newspaper, those days are numbered."

Information from The Associated Press is included in this report. News researcher Gene Balk contributed.

Emily Heffter: 206-464-8246 or eheffter@seattletimes.com. On Twitter @EmilyHeffter.

Social Media is an Opportunity and a Threat for Public Entities

Social media is an issue for local government everywhere as shown by the Jackson (Mississippi) Fire Department’s recent foray into internet posting policies. A disgruntled former employee created a Facebook post with unsavory information about the Fire Department, forcing the Department into a conversation about its social media policy.

The Jackson Fire Department issued a memo on social media, while the City itself is still developing a full policy. The Department’s memo encourages employees not to: publicly discuss issues that might be detrimental to the Department or that might conflict with the duties and ethics of a firefighter; to air personal grievances; and clarify that their opinions are their own and not those of the Department.

The rise of social media outlets like Facebook, LinkedIn, and Twitter presents an important communication opportunity for public entities and their constituents. However, the use of social media needs to be carefully planned to avoid pitfalls. Social media is, by definition, an interactive tool intended to create conversations among users and provide a venue for commentary and feedback. For public entities, the tool is useful for broadcasting to a growing internet audience, but allowing feedback and conversation can be a risk. Like the Jackson Fire Department, every government entity will need to have a conversation about the inherent conflict between an individual’s free speech rights and the government’s legitimate right to protect the government service.

Although it is important for public entities to use as many of these communication channels as practicable, the constant need to update and monitor social media outlets drains staff resources.

Public entities must also consider how they will comply with their archiving and public records responsibilities when communicating in an electronic format.

It should be clear to constituents that messages intended for the public agency should be conveyed through the agency’s official website. For example, a public records request or other official query won’t necessarily be recognized via Twitter or Facebook.

These considerations are plaguing the private sector, as well. McDonald’s launched a Twitter campaign last week with the hash tag: “#McDstories.” 

When users co-opted the hash tag to distribute negative stories about McDonald’s, the company rapidly ended the campaign. The company stated in an email to the Silicon Valley Business Journal: "With all social media campaigns, we include contingency plans should the conversation not go as planned. The ability to change midstream helped this small blip from becoming something larger." This is a wise strategy for any entity using social media, public or private.