Court Of Appeals Holds Records Subject To Protective Order As Unduly Burdensome Not Exempt Under The Public Records Act

In Washington State Department of Transportation v. Mendoza de Sugiyama (Division II), a former employee brought an employment action against the Department of Transportation (“DOT”) and requested certain records in pretrial discovery.  When the trial court granted DOT’s motion for a CR 26(c) protective order on the grounds that the request was unduly burdensome, the former employee submitted a public records request to DOT for the same records.  DOT brought a separate action for declaratory and injunctive relief, arguing that the records were exempt under RCW 42.56.290 (the Public Records Act’s “controversy exemption”) because the records were “not available to a party under the rules of pretrial discovery.”

A divided panel of the court of appeals determined that the records were not exempt, holding that records subject to a CR 26(c) protective order on the grounds that they are unduly burdensome for an agency to produce are nonetheless “available” under the civil rules of pretrial discovery and therefore not exempt under the controversy exemption.  The majority observed that no privilege was involved and that the protective order was aimed at the scope of the discovery request, not the content of the material sought.  The majority found this distinction dispositive, and noted that the PRA specifically prohibits agencies from denying requests solely because they are overbroad.  RCW 42.56.080.  The majority concluded that a “more reasonable interpretation of the statutory language is that the legislature intended to exempt under the PRA only those records that would not be available to any party under universally applicable rules of discovery, rather than those records rendered conditionally unavailable to a specific litigant under the unique facts….” (emphasis in original).  It also found no conflict between the PRA and the superior court discovery process.

The dissent argued that a requestor “should not be allowed to use the PRA to thwart the court’s authority to manage litigation before it, especially when that authority is carried out in close conformance with the Civil Rules.”  Observing that the plain language of RCW 42.56.290 exempts material that is unavailable under the rules of pretrial discovery, one of which is CR 26(c) authorizing protective orders, the dissent would have held the records exempt from production.

Names of Police Officers Involved in Shootings Subject to Disclosure in California

The Los Angeles Times requested that the City of Long Beach release names of police officers involved in shootings that occurred while the officers were on duty. The officers’ union sued the City to prevent disclosure, and the LA Times intervened in support of its request. Following earlier decisions in favor of the Times and disclosure, the California Supreme Court affirmed those earlier decisions. Long Beach Police Officers Ass’n v. City of Long Beach, 203 Cal.App.4th 292 (May 29, 2014). Finding that, while disclosure of officers’ names may not be warranted in every case, the Court’s balancing test in this case determined that the public’s interest in disclosure prevailed over vaguely worded assertions regarding officer safety or the safety of the officer’s family. The Court recognized the “general safety concerns of officers who fear retaliation from angry members of the community after an officer-involved shooting.” But the Court also concluded that the California Legislature had determined it important “for the public to know the identities of the officers serving the community.”

Court Of Appeals Determines That Public Records Act Exemption For Proprietary Information Obtained By Public Agencies Can Be Asserted By Private Parties

In Robbins, Geller, Rudman & Dowd, LLP v. State, Division II of the Court of Appeals decided that private parties may assert the Public Records Act exemption in RCW 42.56.270(1) for certain financial, commercial, and proprietary information obtained by public agencies. Private parties may also assert that disclosure would produce a public loss, regardless of the agency’s position on the issue. However, the court declined to address the open question in Washington of the proper standard for an injunction based on an “other statute” exemption under RCW 42.56.070(1).

The law firm of Robbins, Geller, Rudman & Dowd sought to enjoin release of information that the firm submitted to the Washington Attorney General’s Office (“AGO”) as part of its response to a request for qualifications. Although the Court of Appeals held that the law firm could assert the proprietary information exemption under RCW 42.56.270(1), it reversed the trial court’s decision to issue a permanent injunction, finding that the law firm failed to prove that the exemption, or any other exemption, prevented disclosure of the information at issue in response to a public records request.

The court first addressed exemption under the Uniform Trade Secrets Act (UTSA), Ch. 19.108 RCW. In rejecting application of that exemption, the court held that the law firm failed to show that its fee proposal and insurance information differed significantly from information already in the public arena. The court also held that the firm had not demonstrated any reasonable attempts to keep previously published client information secret and that its reference lists, by their very nature, were created for dissemination outside the firm. Accordingly, the UTSA did not prevent disclosure.

Notably, the court declined to address the undecided issue of whether the PRA injunction standard, RCW 42.56.540, applies when a court relies on an “other statute” exemption, such as the UTSA, rather than a PRA exemption to bar disclosure. The AGO and the law firm argued that such “other statutes” provide independent bases for enjoining disclosure without consideration of the PRA’s injunction requirements. The requestor of the records and amici curiae argued that the PRA injunction standard must be satisfied, even for exemptions pursuant to “other statutes.” Although the parties urged the court to provide guidance, the court declined to address the issue because the UTSA did not exempt the materials at issue.

The court also rejected the law firm’s asserted PRA exemptions. The court largely focused on the proprietary information exemption under RCW 42.56.270, which exempts from disclosure “[v]aluable formulae, designs, drawings, computer source code or object code, and research data obtained by any agency within five years of the request for disclosure when disclosure would produce private gain and public loss.” RCW 42.56.270(1). As a matter of first impression, the Court of Appeals rejected the requestor’s argument that a private party cannot invoke the exemption or assert a public loss. First, nothing in the statute restricted its application to public agencies, and unrestricted application was not inconsistent with the purpose of exemption. Second, because the PRA expressly allows interested parties to seek an injunction to prevent disclosure of exempt public records, private parties can assert public loss, even if the public agency chooses not to do so.

Nevertheless, the Court of Appeals held that the law firm failed to establish public loss under the exemption. Because the firm also could not establish any other exemption under the PRA for the information sought, the Court of Appeals reversed the trial court’s permanent injunction as to those records. However, the court declined to award penalties, costs, or attorney’s fees to the requestor because the AGO did not wrongfully withhold the records; it withheld the records pursuant to a court order. Thus, the requestor did not “prevail” against the agency under RCW 42.56.550(4).

Montana Supreme Court Upholds Public Employees' Right to Privacy in Employee Discipline Public Records Case

The Montana Supreme Court recently ruled that public employees have a reasonable expectation of privacy in their identity with respect to internal disciplinary matters, provided that the employee is not in a position of public trust and the misconduct resulting in discipline is not a violation of a duty requiring a high level of public trust. In Billings Gazette v. City of Billings, 313 P.3d 129 (Mont. 2013), the city rejected the local newspaper’s request for the identification of certain city employees who had been disciplined for accessing pornographic materials on city computers during work hours. The city provided the Gazette with materials that were responsive to its request, such as internal investigation documents and information regarding the specific discipline imposed, but it redacted the employees’ identifying information.

The Gazette sued to compel disclosure and argued that “unauthorized computer usage by disciplined [c]ity employees was subject to release under the ‘right to know’ provision of [the Montana Constitution] . . . and that any privacy interest the disciplined employees may have in the information being requested did not clearly exceed the public’s right to know.” After in camera inspection, the district court agreed and ordered the city to disclose the investigative materials, with redactions only for uninvolved third parties.

Upon direct review, the Montana Supreme Court resolved the competing state constitutional interests of the city employees’ right to privacy and the Gazette’s right to know by considering (1) whether the employees had a subjective or actual expectation of privacy, and (2) whether society was willing to recognize that expectation as reasonable. The court explained that not all public employees possess the same level of privacy in disciplinary matters: in circumstances where the status of a public employee requires a high level of public trust (e.g., elected officials or police officers), the expectation of privacy may be significantly lower than for an administrative employee; likewise, an administrative employee may have a lower expectation of privacy in behavior related to a duty of public trust (e.g., spending public money or teaching children). Accordingly, when a public employee has a lower expectation of privacy the burden of the party seeking disclosure is correspondingly reduced.

Here, the city employees were not elected officials, upper management, or department heads, nor was there any indication their misconduct violated any duty or public trust. While the employees had access to government computers and received their wages from tax dollars, the court stated that granting access to a computer does not demonstrate a public trust. Moreover, a public employee’s violation of office policy does not in turn violate a public trust simply because tax dollars pay the employee’s salary. On the facts presented, the court held that the city employees had an actual or subjective expectation of privacy in their identities that society would recognize as reasonable. Also, because the Gazette had already received relevant information related to the misconduct, investigation, and punishment of the city employees, any benefit of disclosing their identities was negligible at best. If the public was not satisfied with the punishment, it had all the information it needed to voice an opinion.

The dissent argued that even if the city employees had some expectation of privacy, society would not recognize that expectation as reasonable because the employees sought out and enjoyed pornographic material on city computers during work hours with full knowledge of the city’s Internet use policy. Part of this policy specified that employee computer usage was not anonymous and that the city could monitor individual accounts. The dissent further maintained that it was absurd to deem the city employees’ expectation of privacy as reasonable because in many cases the employees breached a security device in order to access the pornographic material, thus exposing the city’s computer network to damage from malware and viruses.

State Supreme Court Clarifies Parameters of Law Enforcement Exemption Under the Public Records Act

In a 5-4 decision, the Washington Supreme Court in Sargent v. Seattle Police Department clarified the parameters governing the effective law enforcement exemption under the  Public Records Act (“PRA”), RCW 42.56.240(1).  Specifically, the court held that the categorical exemption for certain criminal investigation materials ceases to apply once the case has been referred to a prosecutor for a charging decision.  The court further held that there is no categorical exemption for internal investigation materials.  Rather, an agency must prove that each portion of the internal file it seeks to withhold is essential to effective law enforcement.

The facts in Sargent stem from an altercation between Evan Sargent and an off-duty Seattle police officer that resulted in the officer arresting Sargent for battery.  After a “rush file” investigation of the incident (requiring a probable cause determination within 48 hours after arrest), the Seattle Police Department (“SPD”) referred the case to the county prosecutor, who declined to file charges and referred the case back to the SPD for follow-up investigation.  Sargent made a public records request for materials related to his arrest and criminal investigation, which the SPD categorically denied under the effective law enforcement exemption.  After completing its follow-up investigation, the SPD referred the case to the city attorney, who also declined to prosecute, and the criminal investigation was closed.  Sargent then renewed his original public records request and also asked for information relating to a pending internal SPD disciplinary investigation of the officer involved.  While the SPD released some responsive criminal investigation documents, it categorically denied Sargent’s request for information related to the internal investigation, again citing the effective law enforcement exemption.

In the majority opinion written by Chief Justice Madsen, the court first reiterated its decisions in Newman v. King County, 133 Wn.2d 565 (1997), and Cowles Publishing Co. v. Spokane Police Department, 139 Wn.2d 472 (1999), which together established the narrow circumstances under which the effective law enforcement exemption can be applied categorically.  In Newman, the court allowed the agency to categorically withhold an ongoing murder investigation file, holding that the agency should not be required to parse the relevance of individual documents where the crime was unsolved and enforcement proceedings still contemplated.  This categorical exemption was court created; it is not provided for in the PRA.  Subsequently, the Cowles decision limited the Newman categorical exemption, establishing a bright-line rule that “where the suspect has been arrested and the matter referred to the prosecutor” the agency may no longer categorically withhold, but must establish the exemption for each withholding. 

In Sargent’s case, the court held that the categorical exemption ceased to apply once Sargent’s file was first referred to the county prosecutor, even though the case was later referred back to the SPD for additional investigation.  Accordingly, the case fell outside of Newman, and the SPD was required to prove why nondisclosure of each individual document was essential to effective law enforcement.  Because the SPD failed to do so, its response to Sargent’s request was improper.  

Similarly, the court held that the SPD should not have categorically denied Sargent’s request for internal investigation materials.  While certain internal investigation information can be withheld under the effective law enforcement exemption, the court declined to extend the Newman categorical exemption to such materials.  In particular, the internal investigation file was not an “open active police investigation file”; its main purpose was to reach an internal disciplinary remedy for proven misconduct.  Thus, the SPD was required to prove which specific portions of the file were essential to effective law enforcement, which it failed to do. 

Finally, the court declined to remand for reconsideration of whether the law enforcement exemption allowed the SPD to withhold witness identities under RCW 42.56.240(1) and (2).  The court held that remand was inappropriate in this case “where the trial court properly considered SPD’s arguments and SPD simply failed to meet its burden.” 
 
In a dissenting opinion joined by three other justices, Justice James Johnson principally took issue with the expiration of the categorical exemption at the time that law enforcement first refers the case for a charging decision.  Specifically, the dissent asserted that it was arbitrary to draw the line at the first referral to the prosecutor when the substance of the investigation could not possibly be done within 48 hours.  Instead, the dissent would have held that the categorical exemption can be renewed in the event that the prosecutor requests further investigation from law enforcement.  The dissent would have also held that the effective law enforcement exemption applies categorically to open and active internal disciplinary investigation files.  
 

Failure to Conduct a Reasonable Search Supports a Finding of Bad Faith Under the PRA

In Francis v. Washington State Department of Corrections, Division II of the Court of Appeals held that the Department acted in bad faith by not conducting a reasonable search in response to an inmate public records request, awarding both penalties and costs.  This is the second time in the past month that Division II has addressed the 2011 amendments to RCW 42.56.565, which now prohibits an award of PRA penalties to an inmate unless the responding agency acted in bad faith.  See Gronquist v. Dep’t of Corrections (Oct. 29, 2013).

Unlike Gronquist, however, here the court found that DOC acted in bad faith.  In particular, the court noted (1) a delayed response by the agency, (2) lack of strict compliance with PRA procedural requirements, (3) lack of proper training and supervision, (4) negligence or gross negligence, and (5) sufficient clarity in Francis’s request. In responding to the request, DOC spent no more than 15 minutes searching for the documents, which the court described as “almost a rubber-stamp situation.”  Despite these findings, the court also found no recklessness or intentional noncompliance, no intentional hiding or misrepresentation, and no deceit on DOC’s part.

DOC’s primary argument was that bad faith, which is not defined in the PRA, requires some intentional, wrongful act.  The court disagreed.  After reviewing PRA and non-PRA cases discussing bad faith,  as well as federal FOIA cases, the court determined that DOC’s proposed standard was untenable.  The court also looked to legislative intent and the underlying purposes of the PRA in concluding that bad faith should be given a broader reading. While bad faith would not apply where an agency simply made a mistake in a record search or followed a legal position that is subsequently reversed, it would be liable if it failed “to carry out a record search consistently with its proper policies and within the broad canopy of reasonableness.”  

After the court of appeals affirmed the trial court’s determination of bad faith and its award of $4,495 in penalties, the court reversed the trial court’s refusal to award costs.  Explaining that RCW 42.56.550(4) is a mandatory cost-shifting provision, the court held that Francis should have been awarded his costs as the prevailing party.  The court also awarded Francis his costs on appeal.

Redact or Withhold? Will the State Supreme Court's New Disclosure Flow Chart Be Useful?

Yesterday was a busy day for public records issues, as the Washington Supreme Court issued two detailed decisions relating to the State Public Records Act. In Ameriquest Mortgage Co. v. Office of the Attorney General, the Court held records that include personal financial information protected under the Gramm-Leach-Bliley Act of 1999 (GLBA) must be withheld from disclosure under Washington’s PRA, even if the protected information could be redacted. On the other hand, in Resident Action Council v. Seattle Housing Authority, the Court held that records including information protected by certain federal housing regulations must be disclosed under Washington’s PRA, after making appropriate redactions. 

The Court in Resident Action Council also provided a new disclosure flow chart and exemption categories for agencies to use in determining whether to disclose information or records pursuant to a PRA request.

 

Records that Include Information Protected by the Gramm-Leach-Bliley Act are Entirely Exempt from Disclosure Under Washington’s PRA

 

In Ameriquest Mortgage Co. v. Office of the Attorney General, the Supreme Court unanimously held that records including information protected by the GLBA must be withheld from disclosure under Washington’s PRA, even if the protected information could be redacted.

 

The Court in Ameriquest reviewed PRA requests for documents held by the Washington State Attorney General’s Office that it received from Ameriquest Mortgage Company as part of an AGO investigation into Ameriquest’s lending practices. Under the GLBA, financial institutions are prohibited from disclosing nonpublic personal information without notice to the consumer. However, an exception applies to those financial institutions complying with an investigation.   The GLBA also prohibits agencies from using protected information outside the scope of their investigation and from disclosing such information to a third party. The Court in Ameriquest held that the documents obtained by the AGO that include nonpublic personal information protected by the GLBA are entirely exempt from disclosure under Washington’s PRA because redacting the nonpublic personal information prior to disclosure is outside the scope of the AGO’s investigation and, therefore, outside the use permitted by the GLBA.

 

(Note that in Resident Action Council, discussed below, the Court recognizes that this result is unusual. “If it is information within a record that is exempted, such information usually can be effectively redacted.”)

 

The AGO also obtained records from Ameriquest that did not include nonpublic personal information protected by the GLBA. The Court held that these records are subject to disclosure under Washington’s PRA because (1) the documents are not essential to law enforcement and, therefore, do not qualify under the statutory investigative record exemption (RCW 42.56.240); and (2) the documents are not exempt under the State Consumer Protection Act (chapter 19.86 RCW), as Ameriquest provided them voluntarily rather than pursuant to a civil investigative demand.

 

Records that Include Information Protected by HUD Must be Redacted and Disclosed Under Washington’s PRA

 

The Supreme Court in Resident Action Council v. Seattle Housing Authority held that records including information protected by HUD must be disclosed under Washington’s PRA, except for the personal information of welfare recipients, which should be redacted. The Court also held that it was within the trial court’s discretion to order the Seattle Housing Authority (SHA) to (1) electronically produce documents that are redacted in a particular format; (2) publish procedures regarding public records requests, a list of applicable exemptions, and policies governing redaction, explanations of withholding, and electronic records; and (3) pay statutory damages ($25 per day) and attorney fees to the Resident Action Council.

 

Under HUD regulations, SHA is required to keep one copy of each written grievance decision in the tenant’s folder and another copy with all names and identifying references deleted on file for inspection by other tenants who may seek to file a grievance in the future. RAC requested electronic copies of all hearing decisions (both redacted and unredacted) under Washington’s PRA. SHA unsuccessfully argued that HUD regulations preempt disclosure of the unredacted decisions and that an unredacted decision is entirely exempt from disclosure if it contains personal information of welfare recipients. 

 

In the majority opinion written by Justice Gonzalez, the Court stated that HUD regulations merely ensure a limited form of disclosure to a limited class of persons in order to promote fairness within each housing authority’s grievance hearing process. HUD has made clear that it intends for state laws to generally govern disclosure and production of housing authority documents. 

 

The Court also stated in the majority opinion that most of the 141 exemptions under the PRA are “categorical,” exempting without limit a particular type of information or record (e.g., RCW 42.56.230(5) (exempting debit card numbers)). Conditional exemptions, which are less numerous, exempt a particular type of information or record, but only insofar as an identified privacy right or vital governmental interest is demonstrably threatened in a given case. If a type of record is exempt, then meaningful redaction generally is impossible, unless redaction actually transforms the record into one that is outside the scope of the examination. If information within a record is exempt, such information “usually” can be effectively redacted. (Note, the Court reached an “unusual” result in Ameriquest Mortgage Co., discussed above, with respect to information protected by the GLBA that cannot be effectively redacted). 

 

The majority opinion divides the 141 current statutory PRA exemptions into the following new categories (set forth in Appendix A of the decision):

 

(1) Categorical-information exemptions;

(2) Categorical-record exemptions;

(3) Categorical-hybrid exemptions (exempting both information and records);

(4) Conditional-information exemptions;

(5) Conditional-record exemptions;

(6) Conditional-hybrid exemptions; and

(7)  Ambiguous exemptions that “require serious consideration and construction” prior to any attempt at appropriate grouping.

 

Applying the new exemption categories, the majority opinion then set forth the following disclosure flow chart, instructing agencies on the steps that must be taken in determining whether disclosure is required under the PRA:

 

 

Notably, the concurring opinion written by Chief Justice Madsen stated that the categories and flow chart in the majority opinion exceed the scope of the question before the Court. The concurring opinion also stated that several of the majority’s PRA classifications are questionable. While four out of the nine justices signed the majority opinion, Justice Owens joined only with the result, which may limit the precedential value of the new chart and categories.

Washington's Constitution Guarantees Public Access to Court Documents When Relevant to a Motion Actually Decided

In Bennett v. Smith Bunday, the Washington Supreme Court rules that article I, section 10 of the Washington Constitution requires that only material relevant to a decision actually made by a court is presumptively public. In the absence of a court decision, records do not become part of the administration of justice and may remain sealed for good cause under a stipulated protective order.

Stemming from a marriage dissolution, Rondi Bennett and her father, Gerald Horrobin, sued the accounting firm Smith Bunday Berman Britton, alleging that the firm aided Rondi’s husband in embezzling and hiding money from jointly owned businesses. As part of discovery, Smith Bunday provided confidential nonparty tax records under a stipulated protective order, and the documents were marked “confidential.”

Although the case settled, a response filed in the court by Rondi and Gerald contained or made reference to “confidential” documents in violation of the stipulated protective order, apparently by accident. The parties agreed that Rondi and Gerald would refile redacted and sealed versions. However, Rondi and Gerald’s expert witness moved to intervene, asserted his right as a member of the public to open access to court records, and opposed the refilling because “everything was about to go underground.”

Under article I, section 10 of the Washington Constitution, court records that become part of the administration of justice are presumptively public and may be sealed from the public only upon a showing of some compelling need for secrecy. However, the public does not have an interest in documents when the court does not actually make a decision or when the documents are not relevant to the merits of a motion before the court.

Here, the “confidential” documents filed with the court were not part of the administration of justice because the parties settled prior to court disposition. The trial court had no occasion to use the information as part of its decision making process. As the Court further noted, “The supporting material cannot be relevant to a nonexistent decision.” Therefore, the “confidential” documents were not presumptively public under article I, section 10.
 

Arkansas FOIA: Soliciting Individual Board Approval Constitutes a Meeting, Providing Background Information Does Not

In contrast to Washington law, the open-meetings provision of the Arkansas Freedom of Information Act (FOIA) does not define “meetings” that are subject to the Act’s requirements. Here, the Arkansas Supreme Court concludes that submitting a draft ordinance and a memorandum in support of that ordinance does not constitute a meeting subject to the FOIA’s requirements.

In McCutchen v. City of Fort Smith, City Administrator Kelly circulated a draft ordinance expanding his hiring-firing authority, a memorandum supporting the ordinance, and other documents to five of seven members of the Fort Smith Board of Directors in advance of a Board study session. Plaintiff McCutchen sued the City, alleging that Kelly violated the open-meetings provision of the FOIA by engaging in a series of private one-on-one meetings with Board members.

Although some Board members expressed support (and others opposition) to the proposed ordinance, the Arkansas Supreme Court held that Kelly did not violate the FOIA because he did not solicit specific responses from Board members. Moreover, McCutchen failed to produce evidence that the proposed ordinance was discussed or debated prior to the study session or that Board members exchanged any correspondence about the memorandum.

The Court distinguished the prior case Harris v. City of Fort Smith, where a city administrator violated the FOIA by holding one-on-one meetings with Board members in order to obtain approval to acquire property at auction. The administrator sought secret approval, and later ratification by Board resolution, in order to avoid making public the city’s maximum bid prior to the auction. There, the administrator violated the FOIA because the individual contacts to seek Board approval constituted an informal meeting subject to the FOIA’s open-meetings provision. City Administrator Kelly did not seek similar pre-approval, here. 

Gold Bar Meets the Gold Standard of Records Request Response; Still Costs City A Pretty Penny

By 2009, Susan Forbes “and other persons aligned with her” had submitted 82 record requests for various City of Gold Bar public records. Many of those emails were stored on the personal email devices of the mayor, city council members, and other city staff. For over a year, the City corresponded with Ms. Forbes, fulfilling her “purposeful[ly] broad” requests through installments, but also extending its estimated times for response on several occasions. “Unsatisfied” with the delay and the absence of a privilege log outlining withheld documents, Ms. Forbes sued the City claiming the delays were not “reasonable.”

The Washington Court of Appeals, Division 1, provided some vindication for the City, if not relief, upholding a trial court’s summary judgment rejecting Ms. Forbes’ Public Records Act lawsuit. As the Court reiterated, the PRA allows a public agency to respond to a request for public records by providing a reasonable timeframe for response. The agency may fulfill requests in installments as additional requests are assembled to complete broad requests. The superior court may, however, require the agency to show that the estimate was “reasonable” under RCW 42.56.550. By analogy to FOIA and PRA case law on the reasonableness of searches, the Court found that the extensive nature of the requests, resulting in disclosure of 28,290 documents, made delays in production reasonable.

During litigation, Ms. Forbes also requested that the trial court review in camera personal emails that were not produced. The lower court declined because Ms. Forbes “did not have any clear articulation as to why such a review would be appropriate.” Division I affirmed and held that the City’s “clear and consistent record” of adequate searches in reasonable times did not merit in camera review of records not produced. Importantly, the personal emails at issue did not contain city business. The Court distinguished Mechling v. City of Monroe, where personal emails were not exempt because they contained information relating to the conduct of government. Here, no emails containing city business were withheld. Furthermore, because the personal emails were merely non-responsive, they were not withheld, and the City was not required to produce a privilege log.

The cost of responding to the voluminous requests and the related litigation has pushed the City of 2100 people to the brink of bankruptcy. One of the largest expenses (and reasons for delay) was the need to search city officials’ personal electronics and home computers, including sorting personal emails from City business. Better document management practices may not have eliminated Ms. Forbes’ issues, but it could have decreased Gold Bar’s costs.
 

Metadata: You [Only] Get What You Ask For

In an unpublished opinion, Division II affirmed a trial court’s grant of summary judgment against George Nervik, a 45-time Public Records Act requestor of Department of Licensing emails and attachments. The Court held that some of Mr. Nervik’s claims were time-barred by the PRA’s one-year statute of limitations and that several of his other claims were not properly preserved for appeal. However, the bulk of the opinion is devoted to Mr. Nervik’s purported request for email metadata.

Metadata associated with a public record is subject to disclosure under the PRA. But, a government agency is not required to provide metadata unless the metadata is specifically requested. Requesting emails or records in electronic format does not automatically lead to a request for metadata. Moreover, agencies have discretion in formatting records and need not provide records in electronic format. Here, Mr. Nervik requested that emails “should be in Outlook .pst format only together with all attachments....” Although .pst files presumably contain metadata, the Court held that this “mere format request” was not a specific request for metadata. In other words, requesting records in a format that contains metadata is not a request for that metadata. The Court ruled that the Department properly produced some records in hard copy for redaction and others in electronic format without metadata. Therefore, the Department was entitled to summary judgment on Mr. Nervik’s claim that it failed to disclose public records by not providing metadata.
 

Public Records Lawsuit Frequent Flier Sent Packing

Arthur West, well known to those who follow open government issues in Washington State, had another of his lawsuits rebuffed by the Court of Appeals.  In an unpublished decision, Division II rejected his Public Records Act and Open Public Meeting Act claims against the Washington Public Ports Association. The Court also declined to decide whether or not the Association is a public agency for purposes of the Public Records Act.  While this case does not add much substantively to Washington's open government jurisprudence, it does serve as a reminder that detailed facts are a plaintiff's strongest ally in open government cases.  The Court of Appeals was unwilling to let the OPMA or case go forward because Mr. West's allegations showed him to be a concerned citizen, but did not identify a specific injury.  Similarly, Mr. West did not document a specific Public Records Act issue, so the Court of Appeals allowed the trial court's summary judgment in favor of the Ports Association to stand.  Contrast this scenario to many recent Washington Public Records Act cases where the appellate courts have been quite harsh with public agencies that fail to meet their duty to provide access to citizens.

Court Agrees -- A Special Meeting is Not a Regular Meeting

In an unpublished opinion, Center for Justice v. Arlington School District, No. 627263-1-I (Sep. 4, 2012), a Washington Court of Appeals affirmed a trial court’s conclusion that a school district’s “special meetings” were not “regular meetings” because they did not occur in accordance with a schedule declared by statute or rule. The school district regularly held bi-monthly “business meetings,” which were properly noticed as “regular meetings” under the OPMA. It often held what it called “study sessions” just prior to the regularly scheduled business meetings, following the OPMA notice requirements for “special meetings.” The Center for Justice (CFJ) argued that, because of their frequency, the study sessions should have been noticed as regular meetings. Noting that the OPMA did not define “regular meetings” for agencies other than those of the state, the court interpreted the statute as anticipating two types of meetings: those with dates fixed by rule or law (regular meetings), and all others (special and emergency meetings). Because the dates of the study sessions were not fixed by rule or law, they were not regular meetings and the District’s use of the “special meeting” notice provisions was proper.

The District had conceded violations of the OPMA relating to 21 executive sessions it had commenced without first opening a meeting. The trial court granted judgment to CFJ and awarded its attorney fees, reduced by a “degree of success” it calculated by dividing 21 sessions by 144 total alleged violations, or a 14.6% success rate. The appellate court concluded that because CFJ had alleged multiple violations for each session, the trial court had committed an arithmetic error—essentially dividing the number of rotten apples by the total number of allegedly rotten apple seeds—to produce a meaningless “percentage.” The court remanded for a re-calculation of the fee award.

The appellate court also awarded attorney fees to CFJ on appeal for establishing that the trial court had erred in its fee calculation. Although the District prevailed on the remainder of CFJ’s claims, because CFJ’s appeal was not frivolous, the District received no fee award.
 

The Little Things Matter: Public Records Suit Dismissed for Failure to Properly Serve County Auditor

In an unpublished opinion, the Washington Court of Appeals affirmed the dismissal of a public records suit due to the requester’s failure to properly serve the Pierce County Auditor. The requester, Larry Day, requested records from the Pierce County Prosecuting Attorney’s office relating to its prosecution of Day. The Prosecuting Attorney’s Office withheld a number of documents as attorney work product. Day subsequently filed a complaint under the Public Records Act naming the Prosecuting Attorney’s Office as the defendant. Day also served a copy of the complaint on the Prosecuting Attorney’s Office. Day did not serve any other public official or department. The Prosecuting Attorney’s Office appeared and filed a Motion for Summary Judgment arguing that Day’s service was improper. The trial court agreed and dismissed Day’s suit.

Counties can be sued under Washington law, but to properly serve a county, the plaintiff must serve the County Auditor or the Deputy Auditor. RCW 36.01.010; RCW 4.28.080(1). In contrast, a county department can only be sued if the law creating the department permits such a suit. Roth v. Drainage Improvement Dist. No. 5, 64 Wn. 2d 586, 588 (1964). Pierce County never designated the Prosecuting Attorney’s Office as an entity capable of being sued. Thus, to effectively serve his suit, Day was required to serve the Pierce County Auditor or the Auditor’s Deputy. Day did not and that mistake proved fatal to his suit.

Moreover, because Day failed to re-file and properly serve the Pierce County Auditor after his original suit was dismissed, the Court of Appeals held that the one year statute of limitations under the Public Records Act had run.
 

Supreme Court Nominee: US Solicitor General's Communications Exempt under FOIA

The nomination of Solicitor General Elena Kagan to the Supreme Court prompted document requests to the Department of Justice (DOJ). The D.C. District Court recently upheld a DOJ determination that records from the office of the Solicitor General were exempt from disclosure under the Freedom of Information Act (FOIA). The records either were privileged or were not “agency records” subject to disclosure. Media Research Center v. U.S. Department of Justice and Judicial Watch v. U.S. Department of Justice, 2011 WL 4852224 (Oct. 13, 2011).

In response to FOIA requests, DOJ began an electronic search of its files encompassing the dates of Justice Kagan’s tenure as Solicitor General. The search identified 1400 pages. After review, DOJ concluded that 86 pages were responsive to the requests under FOIA.

DOJ released 45 of the 86 pages, and withheld 41 pages under two theories: first, that they were not “agency records,” and second, that they fell under the “work product privilege” (exemption 5 to FOIA). DOJ released a log (often referred to as a “Vaughn Index”) providing its reasoning for every withheld or redacted document.

Plaintiffs challenged: 1) the adequacy of the initial search; 2) the determination that the 41 pages were not “agency records;” 3) the claim of attorney work product on six redacted documents; and 4) the claim concerning the deliberative process privilege.

  1. Adequacy of the Search. The Court concluded that DOJ’s search of its paper, electronic, and email files was adequate, and that plaintiffs’ conjecture that there should be additional records was insufficient to justify a different conclusion. See, Weisberg v. Department of Justice, 705 F.2d 1344 (D.C. Cir. 1983); Iturralde v. Comptroller of the Currency, 315 F.3d 311 (D.C. Cir. 2003) (agency’s search must be reasonably calculated to uncover all relevant documents, measured by the search methods and not by the results of the search).
     
  2. Agency records. In rejecting the Plaintiffs request for the Solicitor General’s correspondence about her nomination to the Supreme Court, the D.C. Circuit Court found the correspondence “was not relied upon by the [Office of Solicitor General] in carrying out its business, but rather was used for a purely personal objective…the documents were personal, not attributable to the agency, and therefore were not “agency records.”
     
  3. Exemption 5 to FOIA, and the “Work Product Privilege.” Exemption 5 to FOIA allows an agency to withhold records that would be privileged from discovery during litigation. This exemption incorporates the work product doctrine and the deliberative process privilege. Department of the Interior v. Klamath Water Users Protective Association, 532 U.S. 1 (2001). Applying Exemption 5 and the attorney work product doctrine, the court rejected plaintiffs’ argument that a specific claim is necessary to invoke the doctrine. Instead, an objectively reasonable belief that litigation is a real possibility triggers the privilege. The Court did not reach the deliberative process question.

For reference to Washington’s PRA exemptions for attorney-client and other privileges that may give rise to exemptions from disclosure, see WA Court of Appeals Decision in Zink v. City of Mesa Has Many Public Records Act Lessons for Municipalities.
 

New Jersey League of Municipalities a Public Agency Subject to Open Public Records Act

The New Jersey League of Municipalities (League) is a non-profit, unincorporated association representing over 500 of New Jersey’s municipalities. The League was authorized by the New Jersey Legislature in 1915. One of its functions is serving as a lobbying organization for the state’s municipalities. Its employees are eligible for membership in the New Jersey Public Employee’s Retirement System.

In response to a request for records, the League claimed that it was not a public agency subject to the New Jersey Open Public Records Act (OPRA). The trial court and Court of Appeals agreed with the League. On August 23, 2011, the New Jersey Supreme Court unanimously reversed the lower courts and found that the League was a public agency. Fair Share Housing Center, Inc. v. New Jersey State League of Municipalities, No. 066228. The court distinguished the term “public body” under that state’s Open Public Meetings Act (OPMA), from the term “public agency,” which it found far more encompassing under the OPRA. In contrast to Washington State court decisions, the fact that the New Jersey League was found not to engage in “governmental functions” was not relevant to the inquiry. See the discussion of West v. Washington State Association of Counties (2011) and Telford v. Thurston County Board of Commissioners (1999) in the posting of June 2, 2011: “Washington Association of County Officials Subject to Open Public Meetings Act.” One of the factors considered by Washington courts in determining whether an entity is an “agency” or the “functional equivalent” of an agency and subject to the Washington Public Disclosure Laws is whether the entity performs a governmental function.
 

Water District Wins Anti-Harassment Order Against Public Records Requestor, But Still Found to Violate Washington Public Records Act

Belfair Water District is a small water district with approximately 1,200 customers located near Bremerton. The District is the latest public agency to face civil penalties for violations of the Washington Public Records Act. Judge rules against Belfair Water District in public records dispute, Steven Gardner, Kitsap Sun, August 6, 2011. The litigated requests began in 2009 when Greg Waggett asked for copies of the District’s insurance policy and current budget.  Around the same time, Bonnie Pope, another requestor, requested copies of District commissioners’ expense reimbursement records. These were apparently the first public record requests handled by District staff.

Following these initial requests, Waggett began submitting increasingly burdensome requests to the District. According to the District, responding to these requests began to take up significant portions of district staff time and, ultimately, became so burdensome that two district employees quit their District jobs.

According to the District, Waggett also began to harass District staff. This harassment led the District Manager, Dave Tipton, to seek an anti-harassment order against Waggett. A court issued an anti-harassment order against Waggett for one year.

A year later, a hearing was held to determine whether the anti-harassment order should be renewed. The judge ultimately declined to renew the order citing the fact that Waggett had not violated the order in the previous year. Following this decision, Waggett’s attorney used the hearing to submit additional public record requests to the District. Waggett’s attorney handed Tipton public record requests in the courtroom and even had the judge acknowledge this in the official hearing record. Tipton would later argue that he never “accepted” these requests.

Following the court hearing, Waggett and Pope sued the water district alleging numerous violations of the Public Records Act (Chapter 42.56 RCW). Waggett and Pope argued that the District summarily denied requests instead of requesting clarifications; refused to accept record requests submitted through certified mail; and failed to respond to the requests submitted to Tipton at the court hearing. In early August, a Mason County Superior Court judge ruled in favor of the requestors and found that the District would be liable for the attorneys fees of the requestors and daily civil penalties. The judge will later determine the total amount due from the District.

This case illustrates that public agencies faced with harassing public record requestors may successfully obtain anti-harassment orders (or, declaratory judgments) to protect staff. Anti-harassment orders could prove to be a valuable tool in preventing requestors from interfering with public business. However, agencies should be aware that obtaining an anti-harassment order against a requestor does not relieve the agency’s obligation to respond to otherwise valid requests submitted by the requester. As this case shows, it is entirely possible that an agency can obtain an anti-harassment order against a requestor and still be found in violation of the Public Records Act.
 

New Mexico Supreme Court Allows Public Access to Citizen Complaints Filed Against Police Officers

The New Mexico Supreme Court recently upheld public access to formal citizen complaints filed against police officers.

In late June, the Court denied a request for review of a lower court ruling.  That decision left in place a 2010 appellate court decision which held that formal citizen complaints against police officers were public records and could be released under New Mexico's Inspection of Public Records Act (“IPRA”).  Cox v. New Mexico Dept. of Public Safety, 148 N.M. 934, 242 P.3d 501 (N.M. App. 2010). The New Mexico Department of Public Safety sought to withhold the records, claiming that the citizen complaints fell under an IPRA exemption for "matters of opinion in personnel files" because the records relate to an officer’s job performance.  However, the New Mexico Court of Appeals found the exemption inapplicable, finding that citizen complaints necessarily arise from an officer's role as a public servant, not the employment relationship with a public agency.  The appellate court noted that internal investigation reports and employer opinions generated as a result of citizen complaints remain exempt under as “matters of opinion in personnel files.”  However, the complaints themselves cannot be withheld.  242 P.3d at 507-08.  The court commented that though the Department of Public Safety “is the keeper of the information contained in the citizen complaints, the information continues to belong to the citizen who made the complaint.”  Id. at 507. Even if the allegations or complaints are untrue, it is not a basis for withholding information from the public.  Id.

A similar debate is ongoing in Seattle, as noted in our earlier blog post.  The Seattle City Attorney’s office recently appealed an arbitration decision that ordered the Seattle Police Department to stop releasing the names of officers found to have engaged in misconduct. Washington’s Public Records Act provides a strongly worded mandate for broad disclosure of public records. Exemptions are narrowly construed.  See Yakima v. Yakima Herald Republic, 170 Wn.2d 755, 791, 246 P.3d 768 (2011).  The City of Seattle argued that the arbitrator’s decision violates the PRA, as there is no applicable exemption that would allow withholding the names.  The Seattle Police Guild argued that the “law-enforcement” exemption applies which prevents law enforcement or investigative records from public inspection and copying.  See RCW 4.56.240.  The case is currently pending in King County Superior Court.

“Name release” disputes arise regularly in many contexts, particularly education.  In a 2008 Washington case, Bellevue John Does 1-11 v. Bellevue School District 405, 164 Wn.2d 199, 189 P.3d 139 (2008), the Washington Supreme Court held that the identities of public school teachers accused of sexual misconduct may be disclosed to the public when the misconduct is substantiated or the teachers’ conduct resulted in some form of discipline, even if only a reprimand.  164 Wn.2d. at 205.  In contrast, the names of teachers who are the subject of unsubstantiated allegations are exempt from disclosure under the PRA.  Id. at 212.
 

WA Court of Appeals Decision in Zink v. City of Mesa Has Many Public Records Act Lessons for Municipalities

By Lee Marchisio with Steve DiJulio

On June 7, 2011, the Washington Court of Appeals remanded (for a second time) Zink v. City of Mesa to the trial court to calculate penalties against the City of Mesa for violating Washington’s Public Records Act (“PRA”). 2011 WL 2184965. Although the Court’s order came in an unpublished opinion, local governments can draw a number of lessons (and cautions) about the PRA from this case.

Washington local governments should take special note of how litigation influenced the number of penalty days assessed to Mesa; the different ways Mesa processed multiple and complex PRA requests; how Mesa responded to requests for non-existent and lost documents; how Mesa managed attorney-client privileged documents; and, how Mesa responded to requests for documents that the requestor already possessed. In this summary, we use the term “city” rather than “agency” or “local government,” for convenience only.

Lessons on How Litigation Affects Penalty Day Calculations

Q: If a city prevails at trial on withholding a record and later loses on appeal, is the city subject to penalty days for the period between the trial court order and the appellate court reversal?

A: Yes, the days between the trial court judgment and the appellate court reversal are included in the final penalty calculation. 2011 WL 2184965 at *6.

Q: Is a city subject to penalty days after a trial court orders a release of documents under the PRA?

A: Yes, a city is subject to additional PRA sanctions for delaying release of a public record after a court order. Id. Requestors may bring an additional PRA action to recover these penalties. Cities are also subject to Washington’s contempt laws for not complying with court orders. Chapter 7.21 RCW.

In the Zink v. City of Mesa litigation, the Zinks may still have a cause of action under the PRA or a remedial action for contempt of court under RCW 7.21.030 if Mesa did not properly comply with the trial court orders to produce records.

Q: Is a city ever subject to penalty days for the 5-day reply period under RCW 42.56.520?

A: Yes, if a city improperly denies a request within the 5-day reply period, then the records are improperly withheld for every day in which the record request was denied, including any portion of the 5-day reply period. Id. at *7-8.

Lessons on Managing Multiple and Complex PRA Requests

Q: Can requestors ask for “all public records” relating to a specific city matter?

A: Yes, if a city receives a request for “all public records” with respect to a specific matter, then the city’s failure to produce a document related to that matter constitutes a “silent withholding” in violation of the PRA. Id. at *8.

Ms. Zink’s request for all public records regarding the Zink’s property was sufficient to put Mesa on notice that a complaint issued against the Zink’s property was included in Ms. Zink’s request. Mesa’s failure to produce the requested complaint amounted to a “silent withholding” of public records in violation of the PRA.

Q: Is a city liable for separate penalties for every document in a request?

A: Sometimes, trial courts have discretion to group documents as a single request based on the city’s culpability as opposed to the size or volume of records requested. Id. at *9.

Penalties better serve the PRA’s purpose when they are directed at agency culpability as opposed to size of request. In Zink v. City of Mesa, the Zink’s request for an audio tape recording, meeting minutes, and rules and regulations adopted in a November 13, 2002 meeting were grouped together as one PRA request.

Q: If a city wrongfully redacts a record, then is it subject to penalty days for withholding the record starting from the date of the original request?

A: No, if a city wrongfully redacts records, then the penalty period only begins on the day that the city was required to produce the record and not on an earlier date. Id.

Mesa properly withheld records for 30 days in order to assemble them in response to the Zink’s multiple requests. However, the City violated the PRA when it provided wrongfully redacted copies on the date that it was required to provide unredacted copies.

Q: If a city receives a request that is substantially the same as a prior request, but only for a different time period, then is this a separate request for penalty purposes?

A: Not necessarily, the trial court has discretion to group the requests together as essentially one continuous request for penalty purposes. Id. at *10.

The Zinks requested all correspondence between Mesa and Mesa’s city attorney and also between Mesa and the Municipal Research and Services Center. A second request for subsequent communications between the same parties was treated as a single PRA request because they were for “essentially the same documents.”

Q: Can a city delay production of easily producible ordinances, board rules, and adopted regulations beyond the 5-day reply period?

A: Sometimes, a city is occasionally justified in delaying the production of easily producible records if it can show that the requested items accompany multiple other requests for documents that are time consuming to produce. Id.

Mesa properly delayed a request for minutes and adopted rules and regulations from a city council meeting when the request also included telephone logs and 18 residential files.

Q: Can a city direct a requestor to submit requests directly to the city attorney?

A: No, when a city directs a requestor to inquire with another official in the city, this referral is effectively a wrongful denial and penalties accrue beginning on the date of the denial. Id. at *11.

Directing Ms. Zink to contact the city attorney for a specific document was effectively a wrongful denial of a record and Mesa’s penalties accrued beginning on the date Ms. Zink was directed to the city attorney.

Q: Can a city limit viewing files to a one hour period during the day?

A: No, limiting Ms. Zink’s access to files for one hour on one day subjected Mesa to the maximum $100 penalty for that day. Id. at *11-12.

Q: Can a city delay production of a file once it is made available for viewing?

A: No, once a file is reasonably available for viewing, a city is subject to per-day penalty amounts for later restricting access to those files while also failing to provide copies of those files. Id.

Q: Can a city treat a requestor who asks for one ordinance differently than a requestor who asks for the same ordinance along with numerous other records?

A: Sometimes, when a request for a simple document, like an ordinance, is submitted with several other requests, the production of that ordinance may be delayed even if other requestors are provided that ordinance on the day of their request and even if it was the city that required the request to be put in writing. Id. at *14.

Ms. Zink’s request for a copy of a city ordinance was properly delayed because it accompanied multiple other requests even though her sister-in-law received the same ordinance on the same day she requested it.

Q: If a city groups multiple request together in writing, then will this be treated as one records request?

A: Not necessarily, although a city may decide to group requests together, trial courts have discretion to separate these requests for determining the number of penalty days. Id. at *15.

Mesa’s error in withholding several documents did not entitle it to have those documents grouped together as one request.

Lessons on Responding to Requests for Lost or Non-Existent Documents

Q: Is a city subject to penalties for failing to produce records that do not exist when the city is required by a separate statute to create that record?

A: No, even if a city is required by statute to generate a particular writing, like minutes, the PRA does not state that an agency’s violation of independent statutory duties to prepare records is also a violation of the PRA. A city is subject to PRA penalties only when the requested record actually exists. Id. at *12-13.

Q: If a requestor submits multiple requests at the same time, can a city treat the requests together and delay their production until all of the records are complied?

A: Yes, high volume requests may be assembled and released together. Id. at *13.

Q: Does a city need to respond to a request for documents that do not exist by stating that the documents do not exist?

A: Not necessarily, a city has no duty to state that records do not exist at the time of a particular request. Id. at *14. The PRA does not compel production of records that do not exist.

Mesa’s response that it would take 30 days to produce a record that it knew did not exist was not a violation of the PRA. The city intended to adopt the requested procedures within that time and then released them once they were enacted.

Q: Can a city delay production of ordinances and resolutions that accompany requests for non-existent documents?

A: Yes, a delay is reasonable when a city attempts to provide all of the legislative enactments together when they were requested at the same time, including enactments that do not yet exist. Id.

Lessons on Producing Attorney-Client Privileged Documents

Q: If a city claims that a document is exempt from disclosure as an attorney-client communication, is it required to justify that exemption?

A: Yes, to assert attorney-client privilege for public documents, the PRA requires cities to provide an exemption log detailing identifying information about the document and a brief explanation of how the statutory exemption applies to each specific record. Id. at *16.

Q: If a city inadvertently discloses attorney-client privileged documents, does this waiver subject the city to penalties for withholding public records?

A: No, accidental release of attorney-client privileged documents does not subject a city to penalties for withholding those records for the period in which they were properly under the attorney-client privilege. Id. at *16-17.

Lesson on Losing Original Documents

Q: If a city loses a signed version of a document, but produces a substantially similar document that is unsigned, then does the unsigned version comply with the PRA?

A: Yes, if the unsigned copies provide substantially the same information as what would have been provided with the signed copies. Id. at *18.

When Mesa provided the unsigned copies of minutes, it substantially fulfilled the purposes of the PRA by providing the Zinks full access to information concerning the conduct of government.

Lesson on the Statute of Limitations for PRA Claims

Q: Does the 5-year statute of limitations on bringing a PRA action limit PRA per-day violations to 1,827 days (5 years)?

A: No, the 5-year statute of limitations only limits the scope of PRA claims to violations that occurred within five years prior to filing the complaint. Id. Violations that occurred during the 5-year limitation period, however, will be penalized for each day that the requestor was denied the right to inspect or copy the public record. Similarly, the 1-year statute of limitations in RCW 42.56.550 does not limit the number of per-day violations that can accrue. Id.

Lessons on Documents Released Prior to PRA Litigation and
Documents Already Possessed by Requestors


Q: If a city fails to comply with the PRA for a period of time, but then complies prior to the requestor filing suit, is the city still liable under the PRA?

A: Yes, a city is liable for PRA violations regardless of whether PRA litigation is needed to compel the city to produce requested documents. Id. at *19.

Q: If a city knows that the requestor already has the document that is being requested, does the city still need to produce that document upon request?

A: Yes, a city is subject to penalties for not producing public records regardless of whether the requestor already possesses those records. Id.

Ms. Zink requested copies of correspondence from the Zinks to the City of Mesa. Mesa’s knowledge that Ms. Zink already possessed the requested documents was not a defense to withholding those documents because the date-stamped copy of a correspondence between the Zinks and Mesa is defined as a public record.


 

Depositions That Are Not Used in a Case - Even Those Held Before a Judge in a Courtroom - Are not Open to the Public

The Washington Supreme Court rejected an appeal from Tacoma News Tribune to see the videotaped deposition of a primary witness against a former Washington State trial judge. Tacoma News Inc. v. Cayce  (July 14, 2011). [Tacoma News, Inc. v. Cayce (Dissent)]

The primary witness in the underlying criminal case had long evaded a court subpoena and was being held in jail as a material witness until he could be deposed. The prosecutors scheduled a videotaped deposition to preserve the witness testimony, fearing the witness would again disappear. The deposition was held in the Pierce County courthouse so that it would be easier for the jail guards to escort and guard the witness. At the parties’ request, Judge Cayce, the visiting judge from King County, was also present in the otherwise-empty courtroom to make rulings, if necessary, as the deposition proceeded. As it turned out, the witness did actually appear to testify, and the videotaped deposition was never offered nor produced at trial.

The criminal case involved the prosecution of Judge Michael Hecht, a sitting Pierce County Superior Court judge, who was alleged to have both solicited male prostitution and to have threatened one of them if he said anything about the judge’s interactions. Hecht was later convicted by a jury and sentenced by Judge Cayce.

The Tacoma News Tribune argued that, because Judge Cayce presided over the deposition in a Pierce County courtroom, the videotaped deposition became a public court proceeding to which the newspaper and the public had a right of access under the Washington and US Constitutions. The Washington Supreme Court, however, in a 7-2 decision disagreed. The Court held that the fact the deposition was held in a courtroom and that the judge was present to make rulings did not convert a deposition into a courtroom hearing. Depositions are normally closed to the public and never become part of the court record, unless they are used in the trial or relied on in a motion. The fact that the judge was physically present to rule on objections did not alter the fact that this was a deposition and not court testimony.

The Court found that, since the deposition never became part of the court record, it was not subject to disclosure under Article I, Section 10 of Washington’s Constitution that provides “Justice in all cases shall be administered openly and without delay.” Quoting from a prior case, the Court stated: “Article I, section 10 is not relevant to documents that do not become part of the court’s decision.”
 

Court Rejects Arizona School District Effort to Restrict Repeated Records Requests

The Arizona Court of Appeals has dismissed an elementary school District’s suit to limit repeated public records requests. Congress Elementary School District No. 17 of Yavapai County v. Warren, 2011 WL 1206192 (Ariz.App. Div. 1, 2011).

This case was in response to multiple requests between 2002 and 2010 to the District from four persons. The requests required the District’s employees to spend more than 417 hours to review nearly 9,000 pages of documents. The District claimed that responding to these requests diverted key staff from teaching and classroom duties.

In 2010, the District filed suit in Arizona superior court against the requestors claiming that the aggregate effect of the requests constituted a public nuisance under Arizona law and an abuse of the public records statute. The District sought an injunction that would prohibit the requestors from filing additional requests without first obtaining permission from a superior court judge. The District argued that this type of injunction has previously been ordered by the courts against repeat filers of frivolous lawsuits. Notably, the District did not claim that any of the prior requests were frivolous or sought records not covered by the Arizona public record statute.

The requestors claimed that such an injunction would violate their rights to free speech, petition for redress, and access to public records under Arizona law. The requestors also argued that issuing such an injunction would reverse the statutory presumption favoring production of public records.

The superior court ruled that there was “no statutory basis for it to impose ‘a judicial screening process for multiple or even unreasonable public record requests’ or to order relief targeting possible future requests” and dismissed the suit. The Court of Appeals affirmed. With respect to the District’s analogy to injunction against repeat filers of frivolous suits, the court found that the District had failed to show that any of the past requests were frivolous. With respect to the District’s public nuisance claim, the court held that a public nuisance suit can only be sustained if the requests “unreasonably interfered with the public health, safety, peace, comfort or convenience” and that the District had failed to make this showing. In addition to winning a dismissal of the District’s claim, the requestors were awarded reasonable attorney fees.

This case provides further support for the principle that significant search burden alone is not sufficient to deny an otherwise legitimate public records request. This case highlights the necessity of all public entities to maintain searchable record management systems and clear record maintenance policies. In light of the high costs that can be associated with responding to extremely broad requests, taking these proactive steps can be well worth the investment.

In Washington, a 2009 amendment to the Public Records Act, RCW 42.56.565, provides a statutory basis for enjoining repeated public records requests from prison inmates, but no such statutory basis exist for enjoining repeated requests from other citizens. Some local agencies in Washington have been successful in securing court orders similar to the order denied in the Arizona case. But, such orders only followed after repeated findings by the courts of frivolous actions or other demonstration of abuse of the court process, even for public records access. Also see the discussion of the unpublished decision in Phillips v. Valley Com., posted in this blog at http://www.localopengovernment.com/2010/12/articles/washington-court-of-appeals-upholds-sanctions-against-disgruntled-employee-for-repeated-frivolous-public-records-requests/.
 

United States Supreme Court: "Report" Simply Means Something That Gives Information

In a decision issued on May 16, 2011, the United States Supreme Court examined the meaning of the term “report” under the Freedom of Information Act (“FOIA”). (Schindler Elevator Corp. v. United States ex rel. Kirk, No. 10-188, 2011).

The case arose when Daniel Kirk, a Vietnam veteran, sued his former employer, Schindler Elevator, under the federal False Claims Act. He asserted that Schindler, a government contractor, had submitted false claims by failing to file Vietnam Veterans Act reporting forms that were required under Schindler’s government contract. Kirk had confirmed the lack of Vietnam Veterans Act reporting through a FOIA request.

The False Claims Act, however, has a “public disclosure bar.” 31 U.S.C. § 3730(e)(4)(A). That bar precludes a whistleblower suit based on information (including reports) obtained through a FOIA request. The Supreme Court reversed the Second Circuit Court of Appeals and rejected an argument that the word “report” should receive a narrower meaning than simply “something that gives information.” The Supreme Court looked to the ordinary meaning of the word “report.” Citing dictionary definitions, the Supreme Court defined the term to include “something that gives information,” a “notification,” and “[a]n official or formal statement of facts or proceedings.” As a result, the disclosure of public records in response to a FOIA request constitutes a “report” and a False Claims Act case cannot be maintained based upon such a disclosure.

Yes, We Have No Documents: WA Court of Appeals Affirms Denial of Prisoner's PRA Claims

In another of a series of prisoner Public Records Act (PRA) requests in the State of Washington, a Court of Appeals has affirmed the trial court’s denial of a prisoner’s claims that (1) he should be able to review documents to see if there are none, and (2) he should be able to have the medical records of his victim. Simpson v. Okanogan County (unpublished opinion). (See previous 2011 blogs relating to prisoner related public records requests posted on January 20 and January 28.)

In his request from prison, Simpson asked for the records on his case from the prosecutor’s office, including the medical records of his victim. In addition, he asked for the personnel file of the elected Okanogan County prosecuting attorney; and, for the records of any insurance obtained by the County for the prosecutor. In response, the County provided Simpson with his criminal file. But, the County withheld the medical records of his victim; stated that the County had no personnel file for the elected prosecutor; and, that it had no documents relating to insurance for the prosecutor. When Simpson sued to challenge both the withholding of medical records and the denial of documents, the trial court granted summary judgment to the County, and the Court of Appeals affirmed.

Although this is an unpublished opinion, the Simpson decision cites useful Washington precedent related to the two issues noted above:

(1) A declaration that, “Yes, we have no documents,” is conclusive.

“An affidavit stating that a record does not exist is dispositive on a PRA claim; there is no right to personally inspect records to confirm that no record exists. Sperr v. City of Spokane, 123 Wn. App. 132, 136-137, 96 P.3d 1012 (2004).”

(2) Health care records are generally exempt from disclosure under the PRA.

“The exemption for patient health care records is assessed in accordance with the standards of chapter 70.02 RCW, which is incorporated into the PRA by RCW 42.56.360(2). Prison Legal News, Inc. v. Dep’t of Corrections, 154 Wn.2d 628, 644, 115 P.3d 316 (2005). In turn, RCW 70.02.020(1) generally prohibits disclosure of health care information without the patient’s consent. In turn ‘health care information’ is defined in relevant part by RCW 70.02.010(7) as ‘any information . . . that identifies or can readily be associated with the identity of a patient.’ . . . Mr. Simpson knew very well whose information he was requesting – the only health care information that was relevant to his criminal case. Blacking out his victim’s name would not disassociate the records from a particular known person.”
 

Clash of Principles: Academic Freedom v. Freedom of Information

The March 30 edition of the New York Times reports that a research group in Michigan has made a public records request of the University of Michigan, Michigan State University and Wayne State University for any e-mails involving the Wisconsin labor turmoil, including any e-mails with reference to Rachel Maddow – the MSNBC talk show host.

Greg Schulz, the director of academic freedom for the American Association of University Professors is quoted as asserting “We think this will have a chilling effect on academic freedom. We’ve never seen FOIA requests used like this before.”

In the State of Washington, however, the issue of academic freedom v. freedom of information has long been decided in favor of the freedom of information. In 1994 the Washington Supreme Court held that documents regarding research proposals for primate experiments that didn’t fall within specific statutory exemptions were subject to disclosure under the State’s Public Records Act – despite the contention of the University of Washington that academic freedom protected those records from disclosure. Progressive Animal Rights Society (PAWS) v. University of Washington, 125 Wn.2d 243, 884 P.2d 592 (1994).

In PAWS, the Washington Supreme Court directly addressed the University’s argument that “the grant proposal should be exempt in its entirety because disclosure of a researcher’s preliminary ideas violates a putative constitutional privilege of academic freedom.” Rejecting that argument, the Court held that neither the popular initiative that first adopted Washington’s Public Record Act nor the legislature in later amendments had created an exemption from the Public Records Act for academics. Further the Court noted that, “Even assuming there were plausible grounds for doing so, it would be difficult to grant special First Amendment protection to public university employees while denying it to other state employees.”

On the other hand, both the trial court and the Supreme Court held that information in the proposal that would reveal research hypothesis, data, valuable formula and the like should be redacted from the documents as they are covered by exemptions to the Public Records Act. The Court also excluded the peer review “pink sheets” from disclosure, as they were documents reflecting a deliberative process for an unsuccessful proposal and thus exempt under the “deliberative process” exemption. But, the Court also noted “Once the proposal becomes funded, it clearly becomes ‘implemented’ for purposes of this exemption and the pink sheets thereby become disclosable.”
 

The Warden is Watching - But You Can't Have the Tapes

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."

U.S. Supreme Court Considers Whether FOIA Protects Corporate "Personal Privacy"

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. 

Prisoners Have Public Records Rights - But Not All of Them

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.

 

Washington Supreme Court Reaffirms Courthouse Door as Bright-line in Public Records Act Application

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.
 

Birth Dates of Public Employees Protected from Disclosure by Texas Supreme Court

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.”

City of Tough Love: The full Council must hear testimony

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

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

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

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

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

Councilmember Sues for Mayor's Failure to Limit Public Comment at Council Meeting

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

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

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

Ohio Supreme Court Affirms Sanctions for Frivolous PRA Claims

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

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

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

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

Missouri Court Rejects Claim Against City For "Lost" Documents

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

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

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

Metadata and the Courts

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

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

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

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

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

Washington Supreme Court Finds Metadata is a Public Record

In a public records case with significant implications for government management and storage of electronic data, the Washington Supreme Court ruled on October 7, 2010 that metadata, the “hidden information about electronic documents created by software programs,” can be a public record and subject to disclosure under that State’s Public Records Act, Chapter 42.56 RCW. For Washington local governments and public agencies, the Court’s decision in O'Neill v. City Of Shoreline, Case No. 82397-9 (Oct. 7, 2010), puts public records officers and other employees on notice that e-mails and other electronic documents may need to be maintained in their original electronic forms to preserve metadata; paper copies will no longer be sufficient for preservation and may not be responsive to some requests. In a footnote, the Court pointed out that regulations on document retention recently promulgated by the State Archivist now require preservation of e-mail metadata. WAC 434-662-150.

Beyond the issue of metadata as public record, the Court also tangled with the issue of electronic government records on a public employee’s personal computer. The document that gave rise to this case was a single e-mail forwarded to the Deputy Mayor of the City of Shoreline as a blind carbon copy. After the e-mail’s contents were discussed at a City Council meeting, a citizen requested a copy of the e-mail. The City provided a paper copy of the e-mail. Later, the citizen requested metadata for the complete e-mail thread but the Deputy Mayor said she had already deleted the e-mail. But the Court ruled that since the Deputy Mayor had used her personal computer for City business, it is appropriate for the City to search her hard drive in attempt to locate the deleted metadata. If the City refuses to inspect the hard drive, then the Supreme Court indicated the trial court should find a Public Records Act violation. No direction was given as to what would happen if the Deputy Mayor (no longer in office) does not consent to the search.

Although this was a 5-4 decision, the dissent does not question that metadata associated with an electronic document may be a public record. This is not surprising given the liberal construction accorded the broad definition of “public records” and “writings” in RCW 42.56.010. See RCW 42.56.030 (“This chapter shall be liberally construed and its exemptions narrowly construed….”) Instead, the dissent questions a more basic point as to whether materials on a public employee’s private computer, metadata or otherwise, are public at all since they are not “retained by any state or local agency.” The dissent also questions how the majority can condition the City’s compliance with the Public Records Act on “an impermissible search or inspection” because obtaining records from an employee’s personal computer would be “highly offensive to a reasonable person” which would bar the requester from obtaining the record under RCW 42.56.050.

Although the Court’s two factions may disagree on the limits to which an agency must go to obtain public records from a personal computer and whether public work on private computers is public, the clear direction from the entire Court is that metadata falls within the category of materials that can be public records. Local governments will need to evaluate how they manage and store electronic data to ensure they are properly preserving and producing metadata as part of their public records.

The decision in O’Neill on public metadata access is the first such case in Washington and the holding is similar to that of the Arizona Supreme Court in 2009.

Some helpful links on metadata and local government records management:

A good primer on metadata and the law.

Washington State Archives Records Management for Local Governments (including newly adopted retention schedules).

The Sedona Guidelines: Best Practices & Commentary for Managing Information and Records in the Electronic Age (no cost registration required).
 

Washington Supreme Court Issues Comprehensive Public Records Act Decision

On September 16, 2010, the Washington Supreme Court issued a comprehensive PRA decision in a case brought by one of its own. Sanders v. State, _____Wn.2d____, 2010 WL 3584463.

Since Justice Sanders of the Washington Supreme Court was the appellant, he recused himself, as did Justice Alexander. The Supreme Court decision was unanimous, authored by Justice Stephens.

The case involved Justice Sanders’ request for all documents held by the State in relation to his visit to McNeil Island. That visit resulted in a subsequent disciplinary proceeding against the Justice. Justice Sanders demanded that the Attorney General’s Office (AGO) release numerous additional documents the AGO had withheld as exempt. The Justice also sought the release of all the documents on grounds that the AGO had waived any exemption by not strictly complying with the PRA requirement that the government agency “explain” the basis for any claimed exemption. Justice Sanders also asked for penalties and attorney fees under the Act.

The trial court in Thurston County ruled in favor of Justice Sanders on some, but not all his claims and assessed a monetary penalty of $55,442.12 against the AGO for withholding some documents. Justice Sanders was also awarded 37.5% of his attorney fees. The Supreme Court essentially affirmed the trial court decision – but in a wide ranging opinion of its own.

The aspect of the ruling that will probably have the most far-reaching effect on Washington agency responses to public records requests is the Supreme Court’s ruling that an agency must not only specify the exemption on which the agency relies, but also provide for each document a “brief explanation of how the exemption applies to the record withheld.” Just specifying the exemption, the Court reasoned, would make the explanation requirement of RCW 42.56.210(3) superfluous.

The Court, however, did not agree with Justice Sanders that the failure of the AGO to adhere to this explanation requirement acted to waive the exemption. But it did affirm the trial court’s addition of a $3 per day penalty – in addition to the $5 per day underlying penalty – for not providing the explanation. The Court also ruled that the additional time when documents are withheld because of pending litigation, counts as additional days of penalty. The Court noted that those additional days in court are days, just like any other, where the requestor does not have access to documents that should have been released.
 

Ohio Supreme Court Holds City May Maintain 3X5 Cards for Record Management

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.

Attorney General Opinion Request Relating to Council Committees and OPMA

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.

Wisconsin Supreme Court Holds Employee's Personal E-mails Not Public Records

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.

Law Enforcement Privilege - Undercover Police Reports - Civil Action

[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.

U.S. Supreme Court Upholds Release of Petition Signatures Under Washington's PRA

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.

U.S. Supreme Court Hears Oral Arguments from State of Washington

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

U.S. Supreme Court Will Hear Oral Argument Tomorrow From State of Washington

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. 

Divided Court Examines Exemption for Law Enforcement Investigative Reports

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.
 

Case Closed: State High Court Sets Highest PRA Penalty on Record Ending Yousoufian Marathon

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.

 

Supreme Court to Consider Disclosure of Copies of Documents Placed Under Seal by a Court

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.

Pennsylvania Court Denies Blanket Exemption for Homeland Security Purchases

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.

Maryland State Police's Internal Affairs Files Relating to Illegal Racial Profiling Not Exempt Personnel Records

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.

New Jersey Appellate Court Holds Judicial Privilege May Not Be Absolute Outside Traditional Litigation Setting; Expunged Criminal Record

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.

Court of Appeals Declines to Recognize Tort Cause of Action for Damages for Negligent Disclosure of Unsubstantiated Allegations of Misconduct

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.

U.S. Supreme Court to Address Privacy of Text Messages Sent on Employer-Owned Devices

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.

Supreme Court of Arizona Holds Metadata is a Public Record

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. 

WA Supreme Court Reaffirms that Public Records Act Does Not Apply to the Judiciary

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. 

U.S. Supreme Court Blocks Release of Signatures on Referendum Petition

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. 

First Amendment Rights Trump Public Disclosure of R-71 Documents

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.

Documents Prepared by Private Investigator for City Exempt from Disclosure

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).

 

Public Records Act Requires Examination of Computer Hard Drive

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.”

 

Courts recognize the importance of efficient government in two new PRA decisions

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.”

 

City of Prosser Settles PRA Suit for $175,000

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." 

Open Government Year in Review 2008-2009

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 

Court: $500,000 for errors related to a single Public Records Act request

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.

Washington State Supreme Court Withdraws Yousoufian Opinion

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. 

"Please destroy after reading" -- FOIA case demonstates that emails are forever

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.  

Cities Win in Two Recent Public Records Act Cases

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. 

Washington State Supreme Court rules in Morgan v. City of Federal Way

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.

Oral Argument in the Washington State Supreme Court (video)

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.

 

 

Foster Pepper in the Washington State Supreme Court

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.

 

Freedom of Information Act Decisions for 2009

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.

Courts and public records laws

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.

 

Open Government Around the County for the Week of March 30

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.

 

Court Holds Agencies Can Enforce Their Public Records Act Policies

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
 

 

 

Release a Public Record, Get Sued for Violating Federal Law

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.