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

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.

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.

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.

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. 

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.
 

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.

For more information, click here.

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.

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. 

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. 

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.

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).

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.”