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

The Rockford (Illinois) Police Department commissioned a 2007 survey by Rockford College of uniform and non-uniform Department personnel, as well as residents in a particular area of the City. In addition to Departmental performance, the survey sought an assessment of employee job satisfaction.

The Rockford Police union sought disclosure of the survey results. The City resisted, asserting that the survey results were protected from disclosure under any of three exemptions: audits; personnel matters; or, the “self-critical analysis” privilege. On January 22, 2010, an Illinois Appellate Court rejected the City’s defenses and affirmed an earlier court order requiring disclosure of the survey. The Illinois Freedom of Information Act does not include an exemption for “self-critical analysis,” and the Illinois court would not graft federal precedent onto the state law exemptions.

For more information, click here.

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

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

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On November 13 the Sunshine Committee issued its third annual report to the legislature. The Committee adopted recommendations to retain, modify, or eliminate 9 exemptions to the Public Records Act. Among the Committee's recommendations are that the legislature retain exemptions relating to certain records filed with the utilities and transportation commission or Attorney General, including records containing commercially valuable information, and that the legislature eliminate the exemptions that relate to personal records of the legislature, including correspondence and email. The Committee also recommended that all future exemptions be limited to a term of five years, after which they would be examined on a case by case basis.

The Committee's full report including all of its recommendations is available here.

Governor Gregoire signed an executive order on December 3 proposing that the legislature eliminate the Sunshine Committee.

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Yesterday, Governor Gregoire signed an executive order that eliminated 17 boards and commissions and she has asked lawmakers to eliminate 78 other boards, which according to the Spokesman-Review includes the Public Records Exemptions Accountability Committee, also known as the “Sunshine Committee.”  The Sunshine Committee  reviews and recommends changes to exemptions in the Public Records Act.

Here is a link to the list of eliminated boards and commissions.

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The Kitsap Sun recently reported that on October 28, 2009, the Kitsap County Parks and Recreation Department’s blog (launched September 8, 2009 and hosted on a County intern’s Facebook site) was taken down. According to the article, the decision to take the blog down stemmed partially from the electronic records management advisory issued by the Secretary of State’s office. See our November 4, 2009 blog posting for more information regarding the advisory. The other reasons cited include the need to update the County’s communication policy to cover statements made by employees on third-party sites and the County’s information technology systems so the County can track records created through various social media.

Kitsap County’s decision follows a similar decision made by Alachua County in Florida. According to the Gainesville Sun, Alachua County recently put a ban on staff conducting any county business using text messages – whether using a county-issued cellular phone or a personal cell phone. The reason cited for the ban is the fact that text messages are public records and the county’s computer system has no way to track and save the messages.

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

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

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

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

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

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

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

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Last week, the Olympian reported that the Washington State Supreme Court has agreed to hear arguments in the Yakima Herald-Republic’s legal battle over sealed records in a 2005 double homicide. The newspaper is appealing a July 2008 lower court ruling that defense attorney billing records detailing more than $1.5 million in fees and expenses are not subject to the Public Records Act. Arguments are expected to be scheduled sometime between January and early spring 2010. 

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Yesterday’s editions of the Olympian and the Spokesman-Review reported that the Attorney General and the State Auditor held the first meeting of their jointly created Open Government Task Force this last Monday. This Task Force is distinguished from the legislatively-created Public Records Exemptions Accountability Committee (the "Sunshine Committee"), which is charged with reviewing all exemptions to the Public Disclosure Act on an annual basis and making recommendations to repeal or amend exemptions to the Public Records Act. According to an Attorney General press release, the Open Government Task Force was created “to study and make recommendations on the creation of an administrative board to rule on complaints of violations of the Public Records Act and the Open Public Meetings Act.” The Attorney General’s website provides that the Task Force is charged with determining “an efficient and inexpensive solution…to resolve complaints and provide greater access to public records and public meetings while reducing costs to government agencies and the public.”

More information about the Task Force can be obtained on the Attorney General’s web page and on the Washington State Auditors Office web page.

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

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

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

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

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

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

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Wall Street Journal discusses ability to search federal court records. Read "Transparency Chic" for more information.

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Update 8/3

Here's an update from the Open Records Blog -- a great blog that tracks state public records issues nation wide -- on the R-71 controversy.  The Post also provides Tim Eyman's perspective on the issue. 

Update 7/30

As noted by the Seattle Times, a Federal Judge has issued an injunction prohibiting the State from releasing the names of the persons who signed the R-71 petition.  According to the Times:

Judge Settle . . . gave what appears to be a nod to the strength of the referendum backers' case, writing that they "have sufficiently demonstrated a reasonable likelihood of success on the merits" of their First Amendment claim, and "a reasonable likelihood of irreparable harm if the names are released."

Here is an editorial from the Yakima Herald on this ruling:  "Open records means just that -- so release the names on R-71"

Update 6/11

The Secretary of State's office has weighed in on this debate on its blog, "From Our Corner."  The post summarizes of Elections Director Nick Handy's position and captures the conflicts this issue raises:

State Elections Director Nick Handy notes the the state has long been committed to open records and transparency in government, but says he’s unhappy with the thought of the petition process being used as a weapon to dampen voters’ participation in their constitutional right of petition.

***

“Nobody is comfortable with releasing personal information in situations like this, but it is part of transparency in government,” Handy says. “We hope people will keep their cool.”

Almost everyone would agree that information on campaign donations should be public, and it is.  Likewise, almost everyone would agree that information about how an individual voter voted should be private, and it is.  Signing a petition seems to fall somewhere in between, but under current law, no privacy exists. 

Original Post 6/10

In this Seattle Times article, the author puts the spotlight on a new trend of publicizing the names of persons who sign petitions for initiatives and referenda.  The stated goal of this tactic is to foster conversations between those who sign a petition and their friends and family who oppose the initiative or referendum.  Critics say the real goal is to intimidate potential signers who don't want to be publicly associated with a controversial issue.  The article quotes the president of a special interest group as noting:

"They are using the public-disclosure laws to punish people for participating in the democratic process — a core right."

As the Internet brings the prospect of a more transparent government, this state and other governments will face new questions about privacy and fairness that weren't implicated when most public access was to pieces of paper. 

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A 'Tweet' OPMA violation?

Public perception counts, technical compliance may not be sufficient. Web 2.0 creates risks and challenges.

"'Tweets' bring possible illegal meeting to light. 
Twitter Post reveal a gathering of Mukilteo
City Council members after their official meeting."

Headlines like this recent headline in the Everett Herald hurt public trust, even when no laws are broken.  A post on the Open Records Blog (scroll down to the third post) demonstrates how at least some members of the public will react.

To ensure compliance with the OPMA, the Public Records Act and the retention laws, elected officials and public employees must make sure they understand all of their legal requirements before they use Web 2.0 sites. 

Here are some additional resources on the use of Web 2.0 sites by Elected officials and public employees:

City Council Handbook Wiki

Gov Social Media Wiki

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As illustrated  in this Everett Herald story, a Mukilteo councilmember’s micro-blog serves to remind us about a lesson public officers and employees have been told for decades.

Common Sense Advice Over the Decades

1969: Don’t write anything down that you don’t want to see on the front page of the paper.

1979: Don’t record anything you don’t want to see on the front page of the paper.

1989: Don’t put anything in an email you don’t want to see on the front page of the paper.

1999: Don’t take pictures of anything you don’t want to see on the front page of the paper.

2009: Don’t tweet or post anything you don’t want to see on the front page.
 

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Emails allow an increased level of public access to government decision-making because many issues are resolved in email exchanges that 20 years ago would have been addressed in person or over the phone. These same emails, however, sometimes reveal embarrassing information.   Example A:  the scandal related to South Carolina Governor Sanford's affair.  For more see the posts on the Death by Email blog. 

Not surprisingly, the newspaper that broke the story, the State, has made an extensive public records requests to the Governor's office. What is surprising, however, is that some of the more recent embarrassing emails show media outlets pledging support for the governor when the stories first broke that he had gone missing: Great Call: In Emails To Sanford's Office, Right-Wing Media Dismissed Missing Gov Story

It's not uncommon for members of the public unaware of the scope of the public records laws, to be embarrassed when their email to their elected official is made public.  But this is the first example I've seen of the media being embarrassed because they forgot about the public records laws.

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

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

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

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

Case Law Updates

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

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

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

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

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

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

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

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

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

Open Government legislative update

Articles on Open Government Issues

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

• Addressing the “executive sessions” question

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

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

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

• Cautionary lessons from 2009 from around the country 

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Update July 13, 2009

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

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

Original Post

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

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Update 7/12/09

Here is another article from Florida on whether governments should use web 2.0 sites:
"Attorneys, legislators to pull plug on Marco government’s use of social Web sites? Increased accessibility to candidates and officials, public records concerns among the pros and cons being considered in use of Facebook, Twitter"

Update 7/7/09

Spies should also stay off Facebook:  "British spy chief outed on wife's Facebook page" 

Update 6/2

Apparently Judges should stay off Facebook too.  Here's an article about a Judge who was reprimanded after accessing a litigant's Facebook site. 

Original Post  5/18

As the benefits of Web 2.0 personalized communication -- like Facebook, YouTube and Twitter -- become more apparent, public agencies and politicians are quickly looking to these tools to communicate with the public. Several Washington State agencies, including the Secretary of State and Attorney General (links Twitter, Facebook and YouTube at the bottom of the AG's homepage) use Web 2.0 sites such as Facebook.  Here's a PowerPoint presentation from the Secretary of State's office explaining the benefits of Web 2.0 sites. 

Use of Web 2.0 sites is not without risk, however.  As highlighted in this article about the advice of a city attorney in Florida to his city council -- stay off Facebook, there are concerns about whether the use of such sites affects a government's ability to comply with public records, records retention and open public meetings laws.  The city featured in the article concludes:

It is a simple fact that the state of the law is lagging woefully behind the state of the art in communications technology. This presents unique challenges in following the intent and the letter of these laws regulating public meetings and communications of local government.  For this reason, this office discourages the City’s participation in a Facebook page or any similar interactive communication technology. 

Earlier this year the Obama administration highlighted some other issues with the "terms of service" users of YouTube and other Web 2.0 sites, such as one-sided reimbursement clauses and sites' use of cookies to track visitors.  Both were inconsistent with federal law or federal policy. 

Here is an article reviewing the use of Web 2.0 products by governments throughout the country.

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Here is an interesting editorial in the Wall Street Journal:  "Why Palin Quit Death by a Thousand FOIAs" The editorial highlights that public records laws can be abused to paralyze a government agency or a public office holder:

This situation developed because Alaska's transparency laws allow anyone to file Freedom of Information Act requests. While normally useful, in the hands of political opponents FOIA requests can become a means to bog down a target in a bureaucratic quagmire, thanks to the need to comb through records and respond by a strict timetable. ... Since Ms. Palin returned to Alaska after the 2008 campaign, some 150 FOIA requests have been filed and her office has been targeted for investigation by everyone from the FBI to the Alaska legislature.”

As bad as this may sound, at least Alaska law -- like the law in most states -- allows the state to charge for search time after giving each requester a taxpayer-subsidized five hours a month for free, which serves as a disincentive to anyone seeking to abuse the law by making large requests. Agencies in Washington, however, cannot charge for search time, which makes the Public Records Act an even more powerful weapon in this state for persons who may want to target an agency or official. And while the vast majority of requesters act in good faith, even one person can paralyze a city or other agency.

(Note, the editorial also highlights the numerous ethics complaints that have led to a half-million dollar attorney-fee bill, which also played a big factor in Palin’s decision to resign.)

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Here are recent open government headlines from Washington State -- thanks to WaCOG andOg-Blog for finding these.

"D'Amico wins open records suit against Jefferson County for Commissioner Sullivan's phone calls"  Port Townsend Leader

"Records show WWU hushing of information, criticism of student newspaper article" Bellingham Herald

"Monroe's business gets done in secret"  Everett Herald

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Update 7/5

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

Original Post

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

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

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

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

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

Melvin Y. Shibuya
Chief, Labor/Employee Relations Branch

He repeated similar warnings in subsequent emails. 

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

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

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Here is a very helpful new blog, "Unredacted," that records the Open Government Ombudsman's informal opinions on Open Government issues.   Transparency at work. 

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

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

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

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

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Update

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

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

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

Original Post

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

Here are the videos: 

Morgan v. City of Federal Way. 

John Schochet, representing Judge Morgan, argues first. 

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

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

John Schochet's rebuttal starts at 38:45. 

City of Federal Way v. Koenig

William Crittenden, representing Mr. Koenig, starts.

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

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

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Update 6/6

As reported by the Huffington Post, President Obama has now included a provision in a war-funding bill that would protect the detainee abuse photos from disclosure. 

Update 6/2

McLatchy Reports: "Why'd Obama switch on detainee photos? Maliki went ballistic."  While fear of foreign uprisings may not be an exemption under FOIA, maybe it should be.

Update 5/19

A federal appeals court has now affirmed the position of President Obama that White House Office of Administration is not subject to the Freedom of Information Act, reasoning that the entity only implements administrative decisions and does not form policy.

Update 5/16

Here is some more food for thought on the President's reasons for not releasing the photos.

Update 5/15

As noted in this article, "Like Bush, Obama White House Chooses Secrecy for Key Office," President Obama is continuing the Bush-era policy of exempting the White House Office of Administration from the Freedom of Information Act.  The article ends by reminding reader's of one of the President's campaign promises on openness:

"More and more, the real business of our democracy isn't done in town halls or public meetings or even in the open halls of Congress," he told an Iowa audience in 2007. "Decisions are made in closed-door meetings, or with the silent stroke of the President's pen, or because some lobbyist got some Congressman to slip his pet project into a bill during the dead of night. We have to take the blinders off the White House."

President Obama has now reversed his position on the release of the additional photographs showing the prisoner abuse at Abu Ghraib.  When the first batch of photos were released in 2004, it caused world-wide outrage.  This article analyzes and deconstructs the six reasons  President Obama seems to be relying on for this change. 

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Update May 31, 2009

U.S. Attorney General Eric Holder’s Memorandum For Heads of Executive Departments and Agencies provides a nice summary of what the presumption of openness means.  The Attorney General identifies three ingredients:

1. Only assert an exemption if nondisclosure serves the exemption’s public purpose.

2. When possible, redact exempt information rather than withhold an entire document.

3. Never assert an exemption merely to hide mistakes or because of abstract concerns.

Here is what the memo actual states:

             First, an agency should not withhold information simply because it may do so legally. I strongly encourage agencies to make discretionary disclosures of information. An agency should not withhold records merely because it can demonstrate, as a technical matter, that the records fall within the scope of a FOIA exemption.

             Second, whenever an agency determines that it cannot make full disclosure of a requested record, it must consider whether it can make partial disclosure. Agencies should always be mindful that the FOIA requires them to take reasonable steps to segregate and release nonexempt information. Even if some parts of a record must be withheld, other parts either may not be covered by a statutory exemption, or may be covered only in a technical sense unrelated to the actual impact of disclosure.

             At the same time, the disclosure obligation under the FOIA is not absolute. The Act provides exemptions to protect, for example, national security, personal privacy, privileged records, and law enforcement interests. But as the President stated in his memorandum, "The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears."
 

ORIGINAL POST

One way to tell a good public records law from a bad law is that a good law starts with a presumption that all records are open and then defines exceptions.  A bad law will presume the opposite and instead define what records have to be disclosed. 

Washington law has always included the presumption of disclosure.  Here is a story about South Dakota, which just amended its public records law to include the presumption of disclosure. 

Washington law codifies this presumption in two provisions of the Public Records Act:

RCW 42.56.550(1) provides "The burden of proof shall be on the agency to establish that refusal to permit public inspection and copying is in accordance with a statute that exempts or prohibits disclosure in whole or in part of specific information or records."

RCW 42.56.030 then heightens the burden an agency will have to meet before it can withhold a record by providing that the Act "shall be liberally construed and its exemptions narrowly construed" to promote the Act's stated purpose of allowing the public to stay informed about government.   

The result of these two provisions is that an agency must disclose any public record, unless it can prove that under a narrow interpretation of a statutory exemption, the record is exempt from disclosure. 

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Not only has President Obama maintained Bush's position on "state secrets" in the U.S. -- claiming a civil lawsuit must be dismissed because the plaintiff's evidence are "state secrets" -- he is now threatening the British Government if they allow U.S. "state secrets" to be used in a civil suit in that country. 

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Here is a post from Og-Blog on the open government record of Sonia Sotomayor, President Obama's nominee for the Supreme Court.   

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Update 5/21

Here's a good editorial from the Longview Daily News.  Thanks to the Og-Blog for pointing it out.

Original Post 5/15

As noted in this article from the Spokesman Review, the Sunshine Committee voted on Tuesday, May 12 to delay any vote on the Public Records Act "exemption" that makes most records of state legislators exempt from the PRA.  The article quotes Ramsey Ramerman, the editor of this blog and member of the Sunshine Committee. 

Here are more details from the Washington Policy Blog.  And here's a post from the Open Records blog giving the issue some national attention.

The vote was influenced by several factors, including that only 8 of the 13 members were present; and, a concern that some legislative records may have constitutional protections. The matter will be on the Committee's July agenda. 

Here are two earlier blog posts on this subject:

Sunshine Committee considers clearing the clouds over the capitol

How the Legislature has exempted itself from the Public Records Act

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As noted in this Crosscut article, the City of Seattle, like many local governments, has opted out of the indexing requirement in the Public Records Act.  While the PRA mandates that agencies have an index of their records, it also allows agencies to opt out by issuing a formal order declaring that it would be too burdensome to comply with the indexing requirement. 

Indexing records has many advantages for governments and the public.  So why do governments opt out?  Because for any local government, but particularly a government as large as Seattle, indexing all of the records that are required to be indexed under the PRA is a monumental and costly task. 

This does not mean all records go unindexed.  The PRA requires governments that opt out to collect and make available any partial indexes that already exist.  In Seattle's case, it's also worth noting that the City has staff dedicated to archiving and managing its records. 

One way the Archivist could help increase access would be to assist local governments begin the indexing process for existing records and standards to help governments index new records as they are created. 

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Here is an editorial on the "torture memos" from the Olympian written by the editor of this blog, Ramsey Ramerman.  It was inspired by George Will's recent statement on ABC's This Week:  "The problem with transparency is that it’s transparent for the terrorists as well.”

Update 5/13:  Here's the Og-Blog's take on the editorial.  As it correctly notes, President Obama's administration has not been as transparent as many had hoped, particularly with regards to the Federal Reserve and the AIG bailout. 

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Update (April 22, 2009) -- Happy Earth Day

In this editorial, Seattle City Attorney Tom Carr responds to an earlier editorial about his role in the "closed door" meeting controversy.  The two editorials serve to highlight an often overlooked point -- the public's perception of a government's compliance with open government laws can be more important than the government's strict compliance with those laws.  One of the primary purposes of open government laws like the Open Public Meetings Act and the Public Records Act is to build public trust.  If the public thinks the government is trying to keep something secret that should be public, it builds distrust.

So were the proposed closed-door meetings legal?  The Supreme Court has repeatedly held that there is no violation of the Open Public Meetings Act when less than a majority of the governing body meet.  See, e.g., In re Recall of Beasley, 128 Wn.2d 419, 427, 908 P.2d 878 (1996).  It's worth noting that the provision in the Attorney General's Open Government Internet Manual cited by the Og-Blog in its post on this controversy is off the mark, at least to the extent that it suggests that it is an open question about whether the OPMA applies when less than a majority of the government body is involved.  The current version of the Internet Manual fails to recognize the Supreme Court's unambiguous decision in Beasley, even though that case was decided ten years after the legislative change cited in the Internet Manual.

There is one possible exception, however, that has not been addressed by the Supreme Court.  When a majority seeks to make decisions through a series of meetings, none of which include a majority but collectively do involve a majority.  This may amount to an illegal "serial meeting."  An appellate court, in holding that an email exchange amounted to an illegal meeting, has recognized this concept, but no appellate court has squarely addressed the issue. See Wood v. Battleground School Dist., 107 Wn. App. 550, 27 P.3d 1208 (2001). Wood also recognizes that the passive receipt of information by a majority does not violate the law.  For more on the Wood case, see this article.

But whether the meetings were legal is now a moot question.  The Mayor and City Council opted to build trust by agreeing to open its doors, even if the meetings would have been legal.  

Original Post

As of Friday afternoon, April 10, 2009, the Seattle City Council and Mayor have decided not to hold closed-door budget meetings, according to this Seattle Times article.

This is a change from the City's earlier decision to hold close-door meetings, which was criticized by the Seattle Times in this article and editorial as possibly violating the Open Public Meetings Act. 

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President Obama made news Thursday (April 16) by releasing four public records -- the infamous Bush "torture memos."  You can find copies all over the web, but here's a link to an article on Talking Points Memo that has all four in PDF format. 

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In North Carolina, as in many states, attorney-fee awards to requesters who are forced to file a lawsuit to obtain records are discretionary.  New legislation, however, would make the award of attorney fees mandatory, except when the agency relies on legal advice to justify its decision to withhold the records.  The same legislation would require mandatory mediation prior to a lawsuit.

Washington's Public Records Act already mandates a penalty that includes attorney fees and a daily award.  RCW 42.56.550(4).  But there is no exception for reliance on legal advice -- or reliance on a prior court order.  As a result, governments are required to pay penalties from their public funds even when those governments act in good faith reliance on legal advice or on a court order.

For example, in West v. Thurston County, 144 Wn. App. 573, 183 P.3d 346 (2008), the County relied on a prior court order in another case providing that the same attorney-fee bills were work product when it told a requester those bills were exempt as work product pursuant to RCW 42.56.290.  After the lawsuit was filed, however, the Legislature amended the Public Records Act to clarify that attorney-fee bills were in fact subject to disclosure.  RCW 42.56.904.  As a result, the Court of Appeals ruled that the County had erred in withholding those records, and remanded for penalties – penalties that will be paid by the taxpayers of Thurston County.
 

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Arkansas:

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

California :

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

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

Kentucky and West Virginia Courts:

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

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

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

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

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The title of this article says it all "Openness is basic to democracy." 

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UPDATE 1

ProPublica, an investigative journalist site, has collected links to all of the States' recovery sites.   

San Francisco has started its own recovery site. 

Finally, a private entity has launched "Recovery.org" to track stimulus spending. 

Original post 3/4/09

As noted by Brad Shannon in the Olympian, the State has followed the federal government's lead to set up a website to track the federal stimulus dollars that flow into the State  It's called "Recovery.wa.gov."  Here's Governor Gregoire's Executive Order creating the site.

Washington is among the 14 states that have launched "recovery.state.gov" sites.

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Federal government:

U.S. Attorney General Eric Holder has recently issued this memorandum for the implementation of President Obama's January 21 FOIA directions.  All of President Obama's efforts are nicely highlighted in this editorial in The Daily News, from Longview, Washington. 

A recent study of freedom of information laws throughout the world found that the United States has one of the highest ranked freedom of information laws in the world.  This was before President Obama's recent initiatives.

California:

In a recent article, the Sacramento Bee, reported on the open government issues that arise from a mayor using "volunteer" private help.  The article notes that under California law, it is "unclear about whether the emails, text messages, voicemails and other writings produced on non-City equipment and property are public records."

Under Washington law, every record that (1) is related to the conduct of government and (2) is "prepared, owned, used, or retained" by a government is a public record. RCW 42.56.010(2).  Thus records related to the conduct of government that are located on non-public agency equipment will be still be public records as long as the records are used by the agency. 

Maryland:

The Maryland general assembly (its lower house) has just passed new legislation that purports to subject the Maryland legislature to the state's public records and open meetings laws. According to at least one legislator, however, the changes actually make the legislature more opaque. For public records, the new legislation would exempt all emails to and from legislators.  Under current law, some of these emails may have to be disclosed.  For meetings, legislation allows party caucuses, budget meetings between party leaders and lunch meetings with the governor to remain private. These exceptions authorized by the new law may allow legislators to make important decisions outside of the public eye. 

In Washington, the laws permit even greater legislative secrecy.  As noted in this post, the Washington Legislature has defined "public records" to exclude all of a legislator's records. Likewise, the Legislature has excluded itself from the definition of "public agency" in the Open Public Meetings Act, meaning that none of its meetings are subject to that law.

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As noted by Brad Shannon in this Olympian article  the Sunshine Committee took testimony on a proposal by Committee chair and elected Seattle City Attorney Tom Carr to remove the "exemption" that makes many legislative records exempt from disclosure.  The Committee hopes to vote on a proposal at the next meeting.  See the post below for more on the exemption.  The article quotes Foster Pepper Public Disclosure Team chair Ramsey Ramerman, who is also a member of the Sunshine Committee. 

Here are editorials from the  Tacoma News Tribune and the Olympian on the exemption. 

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Update 3

As noted by the Seattle Times, SSB 5130 -- the prisoner injunction bill -- is now law.  It passed the Legislature and was signed by Governor Gregoire Friday, the last day of Sunshine Week.  Because the law contains an "emergency" clause, it became effective immediately upon being signed. 

Update 2

As hinted at by Greg Overstreet over at Og-Blog, the Olympian's position in Friday's editorial in support of the prisoner access bill is different from the Olympian's position in an editorial this summer.  In that earlier editorial, the Olympian opposed the Attorney General's efforts to deny prisoner access to the PRA. But last summer, the the Attorney General was arguing for a complete bar on access for prisoners, while SSB 5130 only allows jurisdictions to deny access if they first prove the prisoner is abusing the PRA. In short, the issues are different and the Olympian's current position reflects a more balanced approach to the issue.

Here's an AP article on the bill that again highlights the challenges the Department of Corrections faces because of Parmelee's abuse..

Updated 1

Here is the February 27 editorial from the Olympian supporting the prisoner access bill.  

It's unusual for a newspaper's editorial board to support legislation limiting access to public records. But we find ourself in that position on  Senate Bill  5130  and House Bill 1181.

Original Post

As noted in these two articles from the Seattle Times and the Seattle Weekly, pending legislation  - SSB 5130 - that would allow courts to bar prisoners from making public records requests is making its way through the House and Senate in Olympia.  The bill, which seems to have momentum, would only apply to prisoners who are using the Public Records Act to harass public employees.

Prisoners may have many legitimate reasons to seek public records, and the legislation is not aimed at barring legitimate requests.  But some prisoners, most notoriously Allan Parmelee — doing 17 years for firebombing two attorneys’ cars – have developed a cottage industry of making requests in hopes of tripping up agencies and intimidating public employees.  Here’s an ABA article describing his exploits and abuse of the PRA.  A Google search for "Parmelee" and "public records" will provide many more details. 

Taxpayers have spent well over $100,000 to subsidize Parmelee’s public records business so Parmelee can intimidate and harass.  This type of abuse in no way typifies your average user of the Public Records Act, but it is not unique. Abusive requests hurt transparency by diverting resources.  Toby Nixon, the President of the Coalition for Open Government, notes another risk to transparency, arguing:

"If we don't give the DOC and possibly other agencies the ability to deal with Allan Parmelee, it ends up poisoning the situation for everyone else," Nixon said.

Transparency is not served by the abuse of the PRA.  But as drafted, the PRA can easily be abused, particularly if someone is interested in harassing a government agency or public employees.  The prisoner-injunction legislation is narrowly tailored to address one of the abuses without limiting transparency under the PRA. 

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This recent Olympia editorial highlights the fact that Legislators’ emails are not subject to the Public Records Act.

But there is no simple “legislative exemption” in the PRA. Instead, you have to look at two statutes. 

It starts with the definition of “public record” in RCW 42.56.010(2). That definition provides that “public records means legislative records as defined in RCW 40.14.100.” 

The definition of “legislative record” in RCW 40.14.100 then expressly excludes “reports or correspondence made or received by or in any way under the personal control of the individual members of the legislature.” In other words, records held by individual legislators, including their emails, are not “legislative records” and thus not “public records.”

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As this article in the Seattle Times notes, the Kansas legislature is currently considering legislation to review 30 of the exemptions to its public records laws (Title 42).  Kansas law mandates that the legislature review all exemptions every five years.

Washington law does not require the Legislature to review Public Records Act exemptions.  Instead, the Public Records Act includes a provision that has created the Sunshine Committee, which has been tasked to review all 365+ exemptions.  The committee's unanimous recommendations -- contained in SB 5295 -- are on target to pass this session.  But there are also two bills before the Legislature that  would either suspend or eliminate the Sunshine Committee:  SB 5588 and  SB 5994.    

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March 15 - March 22 is Sunshine Week, where we honor our open government laws. 

Thanks to Greg Overstreet over at theOg-Blog for leading me to this great slide show of open government editorial cartoons the TNT is running to celebrate. 

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

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

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

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 As noted by the FOI Advocate Blog, President Obama has funded a FOIA ombudsman position at the National Archives.  The position was not funded by the last administration. 

Washington State has had an Open Government Ombudsman position since 2004, when the position was created by Attorney General Rob McKenna. 

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On Monday, March 9th's Colbert Report, Stephen Colbert presented an editorial on an open government story from Tennessee.  There, a Memphis newspaper has published an on-line database listing people with concealed weapons permits.  Colbert satirically rails against on-line access to public records because of a claimed invasion of privacy.  While Washington has similar database sites for information on public employees, such as for salary information, Washingtonians with concealed gun permits have an specific PRA exemption, RCW 42.56.240(4) & RCW 9.41.070 to protect certain privacy interests.   Thanks to the Open Records blog for the lead.

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As reported on the Og-Blog, Attorney General Rob McKenna has called for an initiative to reform open government in Washington State.

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SECOND UPDATE 3/12

Sam Taylor at the Bellingham Herald has posted an update on his blog about this case -- the requester filed suit before the City could file.  The post cites to the earlier post on this blog.

UPDATE

Greg Overstreet over at Og-Blog provides a different perspective, at least implying that allowing agencies to sue might discourage requesters from making requests.

Washington law provides that public records must be promptly provided, with limited exceptions.

So make a public records request.

And get sued by the government.

This story from the Bellingham Herald describes what the City of Bellingham is doing.

What this argument overlooks is that Bellingham or any other public agency has absolutely no motivation to sue requesters – and every reason not to sue requesters – unless the agency believes the matter is very likely going to end up in court no matter who files suit.

Why? If an agency sues and the requester wins, the agency not only has to pay its own costs, it also will likely have to pay the requester’s attorney fees and costs, along with the daily penalty. But if the agency wins, the agency cannot recover attorney fees from the requester. Either way, the agency will have to pay for at least its half of the litigation costs. The only “benefit” to an agency filing suit is to limit daily penalties by trying to have the issue resolved promptly.

Agencies have better ways they can use taxpayer dollars to serve the public than suing requesters.  If the requester is not going to file a lawsuit, the agency will not be subject to attorney fees, costs and penalties. So an agency has no reason to expose itself to those potential costs unless the agency has a strong basis for determining that the requester will file suit if the agency does not.
 

ORIGINAL POST

Why would an agency file a suit against a public records requester?  To save taxpayer dollars. 

As noted in this article in the Bellingham Herald, the City of Bellingham City Council has voted to seek a court ruling that certain records are exempt.  The requester is an attorney who is already planning to sue the City over an accident, so the records dispute was destine for court.  By being proactive, the City is saving taxpayer dollars by seeking a quick resolution that will minimize daily penalties if the court rules the City was not correct in its interpretation of the Public Records Act.

More and more frequently, attorneys and others are using the Public Records Act, rather than discovery, to obtain records as part of a lawsuit.  Why?  The PRA provides for daily penalties and mandatory attorney fees.  The penalties and fees, of course, are paid by taxpayers.  All the more reason that cities like Bellingham are taking proactive steps to minimize this taxpayer liability.

Note, the Herald article quotes Foster Pepper attorney Ramsey Ramerman. 

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The New Mexico legislature is considering a bill that would subject the legislature to New Mexico's open meetings law.  In Washington state, the Legislature has exempted itself from the Open Public Meetings Act and the Public Records Act.  NPR's Austin Jenkins recently wrote an article about his difficulties obtaining legislative records from the Washington State Legislature.

In Iowa, the governor has agreed to use his official state-sponsored email account, rather than a private email account after being criticized for trying to avoid the state's open records law.   In Washington State, it would not matter whether the governor was using a private account or state account -- her emails would still be public records.  Here is a link to an article "Five Issues You Should Consider Before You Decide to Use Your Personal Email Account or Personal Computer for Official Public Business" that addresses this issue under Washington State law.

The CIA has admitted destroying 92 interrogation videos after an ACLU Freedom of Information Act lawsuit forced the CIA to account for the tapes.  In 2007, the Washington Supreme Court has ruled that surveillance videos are public records that may be subject to disclosure.  See Lindeman v. Kelso School District, 162 Wn.2d 196 (2007).

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