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.
 

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.
 

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.
 

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.
 

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.

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.”
 

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/.
 

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.

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.”
 

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.”
 

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."

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. 

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.

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.
 

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.”

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.”
 

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.

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.

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.

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.