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

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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The Office of Attorney General has been asked to render an opinion regarding the application of the Washington Open Public Meetings Act (OPMA) to a particular issue involving the meetings of city council committees. The questions to the Attorney General relate to the impact of non-committee councilmembers attendance at a committee meeting.

To view a copy of the notice of the pending opinion request, click HERE.

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On July 16, 2010, the Wisconsin Supreme Court ruled that a public employee's personal e-mails are not public records under that State's Public Records Law. Like Washington, Wisconsin has broad public disclosure laws. Or, as noted by the Supreme Court, "[i]f Wisconsin were not known as the Dairy State it could be known, and rightfully so, as the Sunshine State." But, the Court held personal e-mails "are not a part of government business," simply because they may be sent or received on a Wisconsin local government's e-mail and computer system.

This holding is similar to (and cites) a Washington Court of Appeals decision, Tiberino v. Spokane County, 103 Wn. App. 680, 13 P.3d 1104 (2000). There, the Washington court held the personal e-mails were "public records," and excessive personal e-mail use was a reason for discharge of a government employee. However, the personal e-mails were exempt from disclosure under Washington law. While the fact of excessive email use is of legitimate public concern, the actual content of the personal emails was not.

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[From IMLA News (Issue No. 12, July 07, 2010)]
In re The City of New York, No. 10-0237 (2d Cir. June 09, 2010) The plaintiffs were protesters and others who were arrested, detained, and fingerprinted after demonstrating at the 2004 Republican National Convention (RNC) in New York City. They brought suits under 42 U.S.C. § 1983 and state law, claiming that their arrests and treatment at the hands of the New York Police Department (NYPD) violated their rights. During pretrial discovery proceedings, the plaintiffs brought a motion to compel the City to produce roughly 1,800 pages of confidential reports created by undercover NYPD officers who were investigating potential security threats in the months before the RNC. The City opposed the motion to compel by asserting, among other things, that the documents were protected from disclosure by the law enforcement privilege. After the court 7 below granted the motion to compel, the City filed a petition for a writ of mandamus, seeking relief from the order to compel.

The Second Circuit granted the motion and vacated the order of the court below. The petition presented ― novel and significant question[s] of law ... whose resolution [would] aid in the administration of justice, as the court had not previously addressed ― the circumstances in which the law enforcement privilege must yield to a party‘s need for discovery. The City had also shown that its right to the writ was ― clear and indisputable, and, in the circumstances of the case, it did not have other adequate means to challenge the order. Allowing the disclosure of the reports on an ― attorneys‘ eyes only basis or by requiring filing under seal ― would provide insufficient protection for the confidential law enforcement information at issue.

The party asserting the law enforcement privilege had the burden of showing that the privilege applied. The law enforcement privilege ― clearly applie[d] to the documents here. The Field Reports, even in their redacted form, contain detailed information about the undercover operations of the NYPD. This information clearly relates to law enforcement techniques and procedures.‘ To determine whether the privilege was to give way, a court was to balance ― [t]he public interest in nondisclosure against ― the need of a particular litigant for access to the privileged information, but starting with a ― strong presumption against lifting the privilege. The plaintiffs‘ need for the reports did not overcome this ― strong presumption against disclosure, as nothing in those reports in any way undermined, contradicted, or cast doubt upon the information already provided by the City in certain ― End User Reports. Event ―if we were to agree with plaintiffs‘ claim that the City is using the [reports] as a sword‘ – that is, selectively disclosing Reports helpful to its defense – we would conclude ... that it is not unfair for the law enforcement privilege to protect the [reports] because the information in the [reports] does not contradict or undermine the information in the End User Reports. See http://tinyurl.com/365zzuc.

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In an 8-1 decision, the Supreme Court upheld the Ninth Circuit’s dismissal of a facial challenge to the release of signatures on an initiative petition to overturn Washington’s “Everything but Marriage Act.” Doe v. Reed 561 U.S. ____ (June 24, 2010)

Chief Justice Roberts wrote the majority opinion in which five other justices joined and in which two other justices concurred. Justice Thomas dissented. 

Roberts pointed out that “the PRA is not a prohibition on speech, but instead a disclosure requirement. ‘[D]isclosure requirements may burden the ability to speak, but they . . . do not prevent anyone from speaking.’” Doe v. Reed Slip opinion at 7. But Roberts also pointed out that the Court’s decision dealt only with the facial challenge to the release, not with an “as applied” standard related to this particular petition, which could still be asserted by the plaintiffs in the District Court.

Justice Scalia, with his characteristic reference to history, concurred with the judgment and wrote to point out that the signers of the petition were engaging in a legislative act and that legislative actions in the United States were consistently considered to be actions taken in public. Even voting by the public was traditionally a public act, and secret ballot voting had only come to be generally accepted in the United States in the 1890s when most states adopted the Australian model of voting by secret ballot. Scalia noted that there was no constitutional basis for saying that a state could not decide to keep the identity of petition signers secret, but “It may be a bad idea to keep petition signatures secret. . . . Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed.” Scalia, concurrence at 10.

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The U.S. Supreme Court heard oral argument on April 28, 2010 in the case of Doe v. Reed [Sam Reed, Washington State's Secretary of State].  As we have previously blogged, the case addresses whether public release of referendum petition signatories under Washington’s Public Records Act violates First Amendment rights.  The justices sharply questioned the plaintiff's attorney, who sought to prevent release of the names of people who signed a referendum petition to require a public vote to overturn Washington’s “everything but marriage act.”  A Seattle Times article on the oral arguments including a public transcript is available here. 

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Tomorrow (April 28, 2010), the U.S. Supreme Court will hear oral argument in the case of Doe v. Reed – addressing the question of whether the release of the names of referendum petition signatories pursuant to Washington’s Public Records Act violates First Amendment rights.

The case involves the attempt to seek release of the names of people who signed a referendum petition to require a public vote to overturn the legislature’s enactment of Washington’s “everything but marriage act.”  The Secretary of State was poised to release the names, when a group named “Protect Marriage Washington” and two individual signatories to the referendum petition (John Doe #1 and #2) sought a preliminary injunction in Federal District Court to stop the release.  The District enjoined the release finding that it would impinge on First Amendment rights.  The Ninth Circuit heard expedited review of that ruling and reversed the decision on October 15, 2009 – before the election. Doe v. Reed, 586 F.3d 671 (9th Cir. 2009).  Four days later, however, the U.S. Supreme Court stayed the Ninth Circuit ruling, reinstated the District Court’s preliminary injunction and accepted review. Doe v. Reed, No. 09-559.

The Washington Attorney General  will argue the case tomorrow on behalf of the State’s Secretary of State,  and urge the Supreme Court to affirm the Ninth Circuit ruling.  The State’s position is that when people sign a referendum petition to substitute their view for that of the Governor and Legislature, they are engaging in a public legislative process and have no expectation of privacy when they sign such a referendum petition. 

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David Koenig, a regular plaintiff in Public Records Act cases, sought certain records from Thurston County. The records were a Victim Impact Statement and a Special Sex Offender Sentencing Alternative (SSOSA) evaluation. The documents are used in evaluation and sentencing of sex offenders.

The trial court ordered the documents sealed. But Koenig’s request had been sent to the Prosecutor’s Office, and not to the court. The Prosecutor’s Office denied disclosure under RCW 42.56.240(1), which exempts from public inspection and copying,

“specific investigative records compiled by investigative, law enforcement, and penology agencies….the non-disclosure of which is essential to effective law enforcement or for the protection of any person’s right to privacy."

The Washington Court of Appeals ruled, on April 6, 2010, in a divided opinion that Victim Impact Statements are exempt under the PRA. But, the court held that SSOSA evaluations must be disclosed after redaction of any identifying information regarding the victim and certain other third parties. Notwithstanding the difficulty in determining the exemption from disclosure of these particular public records, the court determined that it had no discretion regarding the award of penalties to Koenig under RCW 42.56.550(4). The matter was remanded to the trial court to set the amount of penalties that Koenig may receive.

To view the court's decision, click HERE.
 

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Yousoufian v. Office of Ron Sims, __ Wn.2d __, __ P.3d __ (March 25, 2010), is the fifth appellate court decision in a public records dispute that began with a request for records related to a proposed new sports stadium in 1997. The Washington Supreme Court recalled the mandate it had already issued following its 2009 opinion, 165 Wn.2d 439, 200 P.3d 232 (Jan. 15, 2009), and now modifies and affirms the Court of Appeals decision found at 137 Wn.App. 69, 151 P.3d 243 (2007). The final issue was the amount of daily penalties a trial court should award for King County’s violations of the Public Records Act, ch. 42.56 RCW. In this 5-4 opinion, the majority laid out a set of seven nonexclusive “mitigating factors” and nine nonexclusive “aggravating factors” for trial court consideration in determining the appropriate daily penalty from the mandatory statutory range of $5-$100. RCW 42.56.550. The chief considerations are the compliance effort by the agency and the impact of the agency’s action—with the higher penalties reserved for those cases in which some form of “sting” appears necessary to force the agency to pay attention to its disclosure obligations.

This round of appeals began when the trial court decided the daily penalty should be $15. The appellate court reversed, and remanded for a higher daily penalty determination by the trial court, whose discretion is virtually unlimited by statute. The Supreme Court affirmed the Court of Appeals, but with a twist. In a highly unusual decision criticized by the dissent, the majority declined to issue yet another mandate to the trial court, but instead determined the daily penalty itself -- $45 per day. The resulting penalty -- $371,000.00 -‑ is the highest PRA judgment on record in this State. As the dissent notes, it is not readily apparent how the Supreme Court applied its factors to come up with the $45 daily penalty. While the majority’s goal was to guide trial courts and thus limit the number of PRA appeals, it remains to be seen whether the nonexclusive 16-factor approach will achieve that end.

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The Seattle Times reported on the Supreme Court arguments in a dispute between the Yakima Herald-Republic and Yakima County regarding the disclosure of copies of court documents.  The dispute involves the billing records of defense attorneys in a murder case that were placed under seal by a judge.  The judiciary is exempt from the disclosure requirements of the Public Records Act, but in this case the County also has copies of the records, and the newspaper sought disclosure of the records from the County.  At issue is whether copies of documents also located in a sealed court file are subject to disclosure under the Public Records Act. The Seattle Times article is available here.

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A Pennsylvania appeals court recently overturned a trial court ruling that allowed the Pennsylvania Emergency Management Agency (PEMA) to withhold the complete list of the recipients of goods and services PEMA purchased with Homeland Security funds in response to a disclosure request from a Pittsburgh newspaper reporter. Bowling v. Office of Open Records, 2010 Westlaw 395637, February 5, 2010. The Court found that while disclosing the location of certain items, such as computer servers and biochemical testing equipment could be harmful to security, identifying the number and location of such items as bungee cords would not. The Court explicitly acknowledged the “enormity of the task” that individually identifying the non-sensitive items would create for PEMA, but nevertheless held that Pennsylvania’s new disclosure law required greater access to the Commonwealth’s public records.

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In response to a suit filed by the NAACP, a Maryland Court of Appeals decided that the Maryland State Police (MSP) must produce certain internal affairs files. In 2003, the NAACP and MSP entered into a federal consent decree to address claims of racial profiling. In 2007, the NAACP sought documents to verify MSP compliance with the consent decree. MSP produced many documents, but resisted producing the internal affairs files that may contain complaints of racial profiling. MSP asserted those files were “personnel records of an individual” and exempt from disclosure. On February 2, 2010, the court rejected the MSP defense, as well as the claim that an “Officer’s Bill of Rights” precluded disclosure.

For more information, click here.

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In Nunez v. Pachman, 2009 WL 5084084 (N.J. Super., A.D., Dec. 29, 2009), the Court was called upon to decide whether a verbal reference in an arbitration to an expunged criminal record could violate a reasonable expectation of privacy and give rise to a cause of action sounding in tort. In New Jersey, “expungement” requires “all” records of a conviction to be destroyed. This in turn can give rise to a reasonable expectation of privacy. The court noted that other states’ laws on expungement may be less strict, and cited cases holding that no claim for violation of a right to privacy existed in those states, under different expungement laws.

The absolute privilege from defamation actions for statements made in judicial proceedings may not apply outside traditional judicial litigation for a, because the protections from wrongful disclosure, like motions in limine, court-ordered sealing of documents, etc., may not apply.  The court held that protection of attorneys and witnesses in arbitrations unrelated to the subject matter of the privacy claim (here, in a union grievance arbitration, the fact that the union member had been arrested and convicted, though the conviction was expunged, the expunged conviction was not truly germane to the proceedings) was only qualified immunity, and the attorney could be liable for invasion of privacy unless, on remand, the attorney satisfied a several-factor test.

Thus when records are made privileged or otherwise exempt from disclosure, there may be some basis for a claim that revelation of those records outside the traditional judicial setting could give rise to liability, even though the case was in alternative dispute resolution.

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In Corey v. Pierce County, 2010 WL 255956 (Court of Appeals, Div. 1 Jan. 25, 2010), the Court of Appeals reversed a trial court order allowing a claim for damages for negligent release of unsubstantiated allegations of misconduct by a deputy prosecutor. The former deputy prosecutor alleged that disclosure of allegations of misconduct violated her right to privacy. The court held that protection against disclosure by an agency subject to the public records laws must be based upon the Public Records Act (PRA), RCW 42.56. The PRA provides for an action to order publication of information that would be offensive to a reasonable person and not of legitimate concern to the public. RCW 42.56.050; RCW 42.56.230(2). The PRA provides for injunctive relief to prevent this disclosure. RCW 42.56.540. The PRA does not, however, provide a cause of action for damages. The court declined to recognize a common law right of action.

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The Seattle Times reported this week that the United State Supreme Court announced that it would consider whether an employee has a right to privacy when sending and receiving text messages on an employer-owned electronic device. The case is City of Ontario v. Quon, and is an appeal from a 2008 Ninth Circuit ruling (Quon v. Archwireless Operating Company, Inc.). In that case the Ninth Circuit held that an employee’s right to privacy outweighed the public employer’s right to audit text messages sent from its employer-issued pagers. See our 2008 news alert for more information about the Ninth Circuit ruling. 

The U.S. Supreme Court is expected to hear arguments in the case in the spring and issue a decision by the end of June 2010.

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Yesterday, the Supreme Court of Arizona held, in a unanimous decision, that under the state’s public records laws any entity that maintains electronic records must disclose those records along with embedded metadata. Lake v. City of Phoenix et al, No. CV-09-0036. 

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Over 20 years ago, the Washington State Supreme Court held in Nast v. Michels, 107 Wn.2d 300 (1986 ) that the State's Public Records Act (PRA) does not apply to court case files because the judiciary is not included in the PRA’s definition of a State “agency.” On October 15, 2009 , the Supreme Court reaffirmed its Nast holding in City of Federal Way v. Koenig, 2009 WL 3298055. 

The Koenig case began in February 2008.  David Koenig, a regular claimant against Washington local governments, requested from the Federal Way Municipal Court all public records related to the resignation of Federal Way Municipal Court Judge Colleen Hartl .  His request  included  correspondence to and from Presiding Judge Michael Morgan. The City of Federal Way provided 183 pages of documents .  But, citing Nast, the City refused to provide the requested correspondence on the basis that the municipal court was not subject to the PRA.  Koenig argued that Nast was wrongly decided and persisted in pursuing his requests. 

The City filed a lawsuit and requested a declaratory ruling that the municipal court was not subject to the PRA.  In September 2008 the trial court entered an order finding for the City.  Koenig appealed that decision directly to the Washington State Supreme Court.

The  Supreme Court affirmed the Nast holding.  The Court emphasized that over the years the legislature had amended the PRA many times, without changing the definition of agency.  Without a legislative change, the doctrine of stare decisis (to adhere to precedent) was applied  by the Court to not disturb the Nast court's holding that the PRA does not apply to the judiciary.  As a result, the Court held that the court records requested by Koenig were not subject to disclosure by the City of Federal Way under the PRA. 

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Earlier today, the United States Supreme Court in an eight to one vote blocked the public release of documents showing names and contact information of Washington Referendum Measure No. 71 (“R-71”) petition signers. This action stopped the Ninth Circuit’s ruling last week that ordered the release of the documents. See our October 16, 2009 blog posting for more information regarding the Ninth Circuit’s ruling. 

The Seattle Post-Intelligencer reported that the Supreme Court will now consider whether to hear the merits of the case, but the action to block the release of documents means the petitions most likely won’t be released before the November 3, 2009 election. 

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Referendum Measure No. 71 (“R-71”) seeks to repeal Chapter 521, Washington Laws of 2009 (Expanding the rights and responsibilities of Washington State registered domestic partners).

On September 10, 2009, the U.S. District Court of the Western District of Washington granted a preliminary injunction barring the Secretary of State of Washington from any public release of documents showing the names and contact information of people who signed petitions in support of R-71. In reaching its conclusion, the Court held that the “weight of authority” leads to a finding that an individual who supports the referral of a referendum is engaged in protected political speech under the First Amendment, which includes the right to speak anonymously. Accordingly, the Court found that the Plaintiffs were likely to succeed on their claim that the Washington Public Records Act was unconstitutional as applied to the public disclosure of referendum petitions.

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Last month, the Supreme Court of Nebraska addressed a public records request for documents prepared by a private investigator at the direction of the mayor of the City of Kimball, Nebraska. Evertson v. City of Kimball, No. S-08-524 (Neb. July 2, 2009). The Court found that the documents were public records, but that they were exempt from disclosure on the basis that they were prepared pursuant to an investigation into a possible violation of the law.

The mayor, after receiving complaints alleging that City police officers were engaged in racial profiling, hired a private investigator to look into the allegations. Most of the complaints focused on one officer. After concluding the investigation, the private investigator provided a verbal report to the mayor and the city attorney, confirming the allegations made about the officer. The verbal report resulted in the City’s termination of the officer.

The citizens who had made the original complaint understood from conversations with the private investigator that a report had been prepared, and requested a copy from the City. The City responded that no report existed. The citizens filed an action to compel the City to disclose the investigative report. The City refused on the basis that it had not requested or paid for a written report; and, the information received by the City was verbal.  As a result, the City claimed that none of the investigator’s investigative documents were public records. The City also claimed that the documents fell within certain exemptions of the Nebraska public records statute.

The Court rejected the City’s argument that because the City did not pay for or request a copy of the materials the investigative documents were not public records. The Court held that “documents or records that a public body is entitled to possess – regardless of whether the public body takes possession” are clearly public records. See in this regard the Washington Supreme Court’s analysis of a similar issue in Concerned Ratepayers Ass’n v. Public Utility District No. 1 of Clark County, 138 Wn.2d 950 (1999). In determining that the City was entitled to the possession of the investigative documents, the Court found that the mayor had delegated authority to the private investigator to investigate allegations of wrongdoing and that the investigator created the documents under this delegated authority. Accordingly, the documents were public records.

Even though it found the investigative documents were public records, the Court agreed with the City that the requested materials were exempt from disclosure on the basis that they were prepared pursuant to an investigation into a possible violation of the law (a recognized exemption under Nebraska’s public records statute). For Washington State’s similar exemption see RCW 42.56.240(1). The Nebraska Court found that the investigation concentrated on racial profiling, which, if proved, would constitute a violation of law. The mayor’s purpose in initiating the investigation was to enforce the law, and the requested documents were exempt from disclosure.

For a discussion regarding the treatment of investigative materials under Washington State’s Public Records Act, see Foster Pepper's news alert regarding Soter v. Cowles Publishing Co., 162 Wn.2d 716 (2006).

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In a recent unpublished decision, a Washington State Court of Appeals addressed a Public Records Act request from the Neighborhood Alliance of Spokane County for records of the County’s Building and Planning Department. Neighborhood Alliance of Spokane County v. County of Spokane, No. 27184-6 (C.A. Wa., Div. III, August 11, 2009).

While an unpublished decision, the Court’s analysis does provide some guidance for a government’s review of electronic records in response to a public record request. First, the Court looked to federal court decisions under the Freedom of Information Act (FOIA) to guide the the standard for judicial review of the government agency’s response to a request.

“The adequacy of the agency’s search is judged by a standard of reasonableness, construing the facts in the light most favorable to the requestor.”

And,

“the agency must show that it ‘made a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested.’”

Applying that standard to Spokane County’s efforts, the Court found that the County had examined one computer, but had not examined an older hard drive used by the author of the subject document. “The County failed to conduct an adequate search for the complete electronic information log showing the date the” record was created.

Also of interest is the Court’s determination that under the Public Records Act, similar to FOIA, the scope of discovery in records litigation is limited to whether a complete disclosure has been made by the agency in response to a request for information. The Court rejected the broad discovery requests for other documents and information to the County that “went far beyond the issue of whether a reasonably adequate search for documents had taken place.”

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In 1972, when state voters enacted the Public Disclosure Act, they made a Declaration of Policy, providing:

mindful of the right of individuals to privacy and of the desirability of the efficient administration of government, full access to information concerning the conduct of government on every level must be assured as a fundamental and necessary precondition to the sound governance of a free society.

RCW 42.17.010(11) (emphasis added).  The Public Records Act (PRA) was a component of the Public Disclosure Act, and later separated into a separate provision of State law.

In two recent opinions from Division I of the Washington State Court of Appeals, the Court has rejected claims under the PRA that would have interfered with the efficient administration of government.

In  Koenig v. Pierce County, the Court recognized that counties are made up of several distinct agencies. As a result, when Mr. Koenig made a public records request to the Office of the Pierce County Prosecuting Attorney, the Prosecutor's Office was not required to search for records in the Sherriff’s Office.  

In ACLU v. City of Seattle, the court held at under the PRA (at RCW 42.56.280), a city does not have to release records related to union contract negotiations while those negotiations are ongoing. The state voters had approved an exemption from the general disclosure obligation when non-disclosure serves the public interest. Here, in applying that exemption, the Court noted:

“Public scrutiny of contract issues discussed prior to completing negotiations might be misconstrued, and disclosure would hinder a vital part of the bargaining process—the free exchange of views, opinions, and proposals.”

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The City of Prosser provides the latest example of how the Public Records Act can be very profitable for some.  The City has agreed to pay a requester $175,000 to settle a PRA lawsuit.  As recorded by theYakima Herald, the requester caught the City up in 11 mistakes after making 213 requests.  The PRA requires strict compliance and puts no limits on the number of requests a person can make at no cost to the requester.  

Taxpayers, of course, will pay the tab.  And this may not be the end of it -- the requester has already warned "They've got to be fully prepared to go the next round." 

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The First Annual "Open Government Year in Review 2008-2009" is now available for download.  The Year in Review collects articles on case developments and other open government issues during the last year.  Below is a partial list of articles.   Download your copy here.

Open Government Year in Review 2008-2009 partial table of contents:

Case Law Updates

• Parmelee v. Clarke:  Court Holds Agencies Can Enforce Their Public Records Act Policies

• RHA v. City of Des Moines:  Supreme Court Underscores the Requirement to Produce an Exemption Log Under the Public Records Act

• Yousoufian v. Office of Ron Sims:  Supreme Court reverses the LARGEST court-assessed Public Records Act penalty in Washington State history – because it was TOO SMALL:  What agencies can learn

• Sitterson v. Evergreen School Dist.:  Washington Adopts the Inadvertently Disclosing Doctrine for Privileged Records

• Bellevue John Does v. Bellevue School Dist. No. 405:  The Supreme Court Re-Affirms Privacy Rights for Public Employees

• West v. Thurston County:  Attorney Fee Bills Must Be Disclosed

• West v. Port of Olympia:  All Deliberative Process Documents Must Be Disclosed After Decision Is Final

• O’Neill v. City of Shoreline:  “Metadata” Is Subject to Disclosure

• Clark v. Tri-Cities Animal Care & Control Shelter:  Is Your Independent Contractor Subject to the PRA?

Open Government legislative update

Articles on Open Government Issues

• End the “Gotcha” Nature of the Public Records Act

• Addressing the “executive sessions” question

• The Open Public Meetings Act, “Serial” Meetings, and Email Exchanges

• Five Issues You Should Consider Before You Decide to Use Your Personal Email or Personal Computer for Official Public Business

• Lessons from Mesa:  Seven Tips to Avoid Being Overwhelmed by the Repeat Public Records Requester (updated 9/08)

• Cautionary lessons from 2009 from around the country 

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Update July 13, 2009

Here is another story/editorial from the TNT on this case: "L&I, Justice Sanders run up the bill."  Even the TNT notes the harsh nature of the L&I judgment:

A half-million dollars does seem stiff, given that L&I did not contest that it was at fault for withholding the records. An agency spokesman told The Olympian that an employee had failed to take proper action in response to the records request.

Original Post

As noted in this Olympian article, the Washington State Department of Labor & Industries was recently ordered to pay $500,000 because of errors related to a single Public Records Act Request. This case demonstrates that the failure to properly respond to a single public records request can have significant economic consequences.  One consequence of this judgment will be a significant increase in electrical inspection fees, because it is public dollars that will pay this judgment.

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Update 7/5

What does this mean for other PRA cases?  If you have a case at the penalty stage, I'd probably seek a stay because unless the Court adopts the identical test,  if you do it now you'll just have to do it again later.

Original Post

The Washington State Supreme Court has withdrawn its January Opinion in the long-running Yousoufian v. Office of Ron Sims case.  In that Opinion, the Supreme Court had ruled that the $124,000 Public Records Act penalty award against King County was too small.  The Opinion adopted 16 factors trial courts should use to set penalty amounts.  For more details on the Opinion, see this MRSC article.

King County had moved to have the Opinion withdrawn after it was revealed that the Opinion author, Justice Richard Sanders, had a pending appeal in a Public Records Act case, where he was relying on his Yousoufian Opinion to argue that his judgment against the State should be increased.  In light of the recent U.S. Supreme Court holding in Caperton v. Massey that a West Virginia Supreme Court Justice's decision not to recuse himself violated due process, this result is not surprising. 

Here is an article in the Seattle Times on the Supreme Court's ruling.  Here is a post on the Supreme Court Blog about the order. 

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When the U.S. Forest Service was considering whether to fire whistle-blower Glen Ith back in 2007, its ethics chief was keenly aware that his emails on the topic were public records, subject to discover.  His solution?  Instruct all recipients to destroy the emails:

This information is for your eyes only.  Please destroy after reading.  It's not protected by privilege and is subject to discovery.

Melvin Y. Shibuya
Chief, Labor/Employee Relations Branch

He repeated similar warnings in subsequent emails. 

Here is a link to an article that includes these excerpts from those emails.

Justice has prevailed, at least sort of.  Mr. Ith died of a heart attack while on administrative leave, after his job was "downsized" but his widow was recently awarded all of her litigation cost.  

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Division I and Division II of the Washington State Court of Appeals both issued decisions in favor of local governments seeking to comply with the Public Records Act (PRA). 

In Beal, Cummings, Rasmussen & Wingard v. City of Seattle, Division I held that the City of Seattle did not have to treat an oral request made at a planning meeting as a PRA request because under the circumstances, there was no reason for the City to recognize that it was a PRA request. 

In Koenig v. City of Lakewood, Division II held that the City properly redacted records pursuant to the Criminal Records Privacy Act and the PRA.  It also rejected the requester's claim that he was entitled to additional penalties and attorney fees. 

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Approximately 48 hours after oral argument, a unanimous Washington State Supreme Court issued an order in Morgan v. City of Federal Way that authorized the City of Federal Way to release the "Stephson Report."  An opinion will follow in the next few months.  (The order was slightly revised on Friday -- here is the final amended order.)  This is the relief sought by the City and the Tacoma News Tribune. 

Here is an analysis of the order from the Supreme Court of Washington Blog by EFF. 

Here are posts on the ruling at the Bellingham Herald,  Washington Policy Blog, the Og-Blog and the Reporters Committee for Freedom of the Press blog.

Foster Pepper represented the City of Federal Way in this case.

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Update

Steve Maynard, the requester in Morgan, summarizes oral arguments in this TNT article: "Attorneys, Supreme Court justices joust over Federal Way judge investigation." 

Here is a TNT editorial on the Morgan case:   "FWay court probe should be public"

Here's a nice summary of the issues in both Morgan and Koenig from the Supreme Court of Washington Blog by the Evergreen Freedom Foundation. 

Original Post

The Washington State Supreme Court arguments for Morgan v. City of Federal Way and City of Federal Way v. Koenig (like all arguments) were televised and available on the web on TVW.   For more information on the issues in the case, see this post. 

Here are the videos: 

Morgan v. City of Federal Way. 

John Schochet, representing Judge Morgan, argues first. 

James Beck, representing the Tacoma News Tribune, starts at 17:20.

Ramsey Ramerman, representing the City of Federal Way, starts at 25:10.

John Schochet's rebuttal starts at 38:45. 

City of Federal Way v. Koenig

William Crittenden, representing Mr. Koenig, starts.

Ramsey Ramerman, representing the City of Federal Way, begins at 13:20.

Mr. Crittenden's rebuttal begins at 30:45.

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On Tuesday, June 9, the Chair of Foster Pepper's Public Disclosure Team and editor of this blog, Ramsey Ramerman, will be arguing two cases on behalf of the City of Federal Way in the Washington State Supreme Court.  Here are the issue statements from the Supreme Court's website:

City of Federal Way v. Koenig:

Open Government—Public Disclosure—“Local Agency”—What Constitutes—Municipal Court

Whether the Federal Way Municipal Court is a “local agency” subject to the disclosure requirements of the Public Records Act, chapter 42.56 RCW.

Morgan v. City of Federal Way:

Public Records—Exemptions to Disclosure—Municipal Court Judge—City Investigative Report—Court Records—Attorney Work Project—Attorney-Client Communications

Whether a City of Federal Way investigative report concerning a municipal court judge is a court record, attorney work product, or attorney-client communication exempt from disclosure pursuant to Public Records Act, chapter 42.56 RCW.

 You can download PDF copies of the briefs here.  You can watch the arguments live starting at 1:30 on Tuesday on TVW.

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The Department of Justice posts summaries of all FOIA decisions on a monthly basis.  Here is the post for April 2009. Here are earlier posts for March, February and January 2009.

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UPDATE

As promised, here is a link to the briefs in City of Federal Way v. Koenig, which will require the Supreme Court to reconsider its 1986 decision that exempted courts from the Public Records Act.   This is one of two Public Records Act cases Foster Pepper will be arguing on June 9. 

Kentucky and West Virginia Courts:

The Chief Justice of the Kentucky Supreme Court is posed to issue new rules that may subject state court administrative records to Kentucky's open records law. 

The West Virginia Supreme Court has accepted review of a case that will determine whether the Justices' own emails are subject to the state's open records law. 

In Washington, the Supreme Court held in 1986 that courts are not "agencies" under the Public Records Act, making court records not subject to the PRA.  See Nast v. Michels, 107 Wn.2d 300 (1986). 

NOTE FOR FULL DISCLOSURE:  In a case set for oral argument before the Washington Supreme Court on June 9, 2009, Foster Pepper will be defending the Nast decision.  The appellant in the pending matter before the Court is arguing that Nast should be narrowly interpreted, making most court records subject to disclosure.  We will post links to the briefs in that case once the briefs are available on the Supreme Court website.

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Arkansas:

The Arkansas legislature is considering a bill that would make all information about gun owners exempt from disclosure.  The Governor opposes the bill, but agrees some personal information (address, phone number, birth date) should be exempt.  As noted before on this blog, all handgun licensing information is exempt under Washington law. 

California :

City of San Diego public employees will be producing their calendars in response to a public records request, according to this article in the San Diego Union-Tribune.  The newspaper is also blogging about its efforts to obtain records and has created a database for the officials' calendars. 

Under Washington law, public employees' calendars are subject to disclosure, subject to any applicable exemptions.  One wrinkle in Washington law -- if the employee also includes personal items, then the agency may be able to redact the personal entries.  See RCW 42.56.230(2) & Yacobellis v. City of Bellingham, 55 Wn. App. 706, 712 (1989) (raising but not addressing issue of personal information on calendars).   But for public employees who want to ensure their privacy is protected, the better practice is to not add personal items to the employer's calendar. 

Kentucky and West Virginia Courts:

The Chief Justice of the Kentucky Supreme Court is posed to issue new rules that may subject state court administrative records to Kentucky's open records law. 

The West Virginia Supreme Court has accepted review of a case that will determine whether the Justices' own emails are subject to the state's open records law. 

In Washington, the Supreme Court held in 1986 that courts are not "agencies" under the Public Records Act, making court records not subject to the PRA.  See Nast v. Michels, 107 Wn.2d 300 (1986). 

NOTE FOR FULL DISCLOSURE:  In a case set for oral argument before the Washington Supreme Court on June 9, 2009, Foster Pepper will be defending the Nast decision.  The appellant in the pending matter before the Court is arguing that Nast should be narrowly interpreted, making most court records subject to disclosure.  We will post links to the briefs in that case once the briefs are available on the Supreme Court website.

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In the latest Open Government Advisor Column on Municipal Research and Services Center website, Foster Pepper's Ramsey Ramerman discusses this new Public Records Act court opinion:

In a recently published opinion, Parmelee v. Clarke, -- Wn. App. --, 2008 WL 5657802 (publication ordered Feb. 2009), Division II of the Court of Appeals gave teeth to the Department of Corrections' Public Records Act procedures. The Department's procedures specifically identify the Public Records Officer and provide that all requests should be sent to that officer. The Court held that, because the requester had actual knowledge of those procedures, the requester was required to follow those procedures and make public records requests to the identified officer. Thus, the court dismissed the requester's claims that were based on requests made to other persons.

Click here for the full article on the MRSC website.

Here are links to other open government articles by Foster Pepper available on the MRSC website:

January 2009 Open Government Advisor:
Supreme Court Reverses the LARGEST Court-Assessed Public Records Act Penalty in Washington State History – Because it was TOO SMALL: What Agencies can Learn

February 2009 Open Government Advisor:
Supreme Court Underscores the Requirement to Produce an Exemption Log under the Public Records Act

November 2008 Council/Commissioner Advisor:
Five Issues You Should Consider Before You Decide to Use Your Personal Email Account or Personal Computer for Official Public Business (and five ideas to help ensure that use is transparent)

December 2006 Council/Commission Advisor:
The Open Public Meetings Act and Electronic Communications
 

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As AmLaw Daily reports, disgraced former Detroit Mayor Kwame Kilpatrick has filed suit against the telecom company that stored his infamous text messages that were deemed to be public records and directly lead to the former mayor spending 99 days in jail for perjury. 

This lawsuit follows a Ninth Circuit decision upholding a civil rights lawsuit by a police officer who sued the city he worked for after his text messages sent from his city-issued phone were released, even though the text messages were "public records."  Quon v. Arch Wireless, 529 F.3d 892 (9th Cir. 2008). 

The key fact in the Quon case was that the City had created a reasonable expectation of privacy by failing to monitor text messages or limit personal use.  If a public agency allows the personal use of text messages, or even emails, the agency must make sure employees know those messages will be monitored to ensure the employees do not have a reasonable expectation of privacy in those messages. 

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