Foster Pepper’s Regulatory & Government Affairs practice recommends staying updated on state open public meetings law and reading the most recent development as reported by Justin Runquist of The Columbian. Washougal mayor: Council may have violated public meetings law.
In Gronquist v. State of Washington, Department of Corrections, Division II of the Court of Appeals held that RCW 42.56.565(1) prohibits an award of PRA penalties to a prison inmate serving a criminal sentence absent a showing of bad faith by the agency who denied the request.
Prison inmate Gronquist had requested several records from the Department of Corrections, including certain surveillance videos of the prison where he was incarcerated. DOC withheld the surveillance videos as exempt investigative records essential to effective law enforcement under RCW 42.56.240. DOC also inadvertently failed to disclose one page in a 96-page production of documents, which it later provided to Gronquist upon discovery of the error. The trial court awarded penalties of $15 per day ($260 total) to Gronquist, but found no bad faith on DOC’s part. Gronquist appealed on several grounds.
Although neither party advanced the argument, the court rejected Gronquist’s appeal of the PRA penalties on the ground that RCW 42.56.565(1) barred any penalties to a prison inmate absent a showing of bad faith. Because the trial court found no bad faith by DOC, Gronquist was not entitled to any PRA penalties, although the penalties were ultimately left intact because DOC had not cross-appealed the award. The court also confirmed that the statute applied to Gronquist’s lawsuit because “final judgment” (broadly defined to include exhaustion of appellate review) had not been entered when the statute took effect in 2011.
With respect to the prison surveillance videos, the court observed that such videos fall squarely within the core definitions of “law enforcement” under RCW 42.56.240. The court further held that DOC met its burden of showing that the nondisclosure was “essential to effective law enforcement” by submitting the affidavit of DOC’s Director of Prisons, who explained that providing inmates access to surveillance videos would allow them to exploit weaknesses in the surveillance system. The court concluded that the videos were properly withheld as exempt from disclosure under the Public Records Act.
In the remainder of the opinion, which was unpublished, the court rejected Gronquist’s other arguments as insufficiently supported, abandoned on appeal, or moot. The court also reiterated prior cases stating that the PRA does not require public agencies to research or explain public records, or to create records that do not exist.
375 staff hours at a cost of nearly $15,000 is the non-billable bill for the City of Port Orchard, Washington to fulfill a public records request according to an article in the Kitsap Sun. Unlike federal agencies and governments in other states, Washington state government agencies can only charge a records requester for the cost of copies. Search time is simply a cost of government in Washington, although more local governments are tracking search expenses and other public records statistics to educate the public and the State Legislature that transparency is not free.
City Can't Impose Fee for Redacting Data [From the International Association of Municipal Attorneys]
Deciding a dispute between a newspaper and a police department based on an open records request, the Supreme Court of Wisconsin has ruled that a municipality cannot impose a fee on a requester of a public record for “the actual, necessary, and direct costs incurred by the authority (including staff time) of deleting nondisclosable information included within the responsive records.” The Milwaukee Journal Sentinel newspaper had requested certain records as part of an investigation into crime data classification. The Milwaukee Police Department agreed, but asked the paper to pay, in advance, the anticipated amount of approximately $4,000 to cover staff time to review and redact the hundreds of incident reports to remove Social Security numbers, financial account numbers, and crime victim and suspect identifying information. The newspaper sued, seeking judgment compelling the City to release the records without prepayment of any fees assessed for redacting information. (The newspaper agreed, for purposes of the summary judgment, that the City’s estimates of the time required to review and redact the requested records were made in good faith and were not intended to generate a profit.)
The court concluded that the City could not charge the newspaper for the costs, including staff time, of redacting information. Nothing in the Public Records Law specifically stated that a record custodian could charge for the actual, necessary, and direct costs of deleting information from a responsive record (although the law did specifically and clearly list the things that a City could charge for), and the court noted that the greater the fee imposed on a requester of a public record, the less likely it was that a requester would be willing and able to successfully make a record request. This worked contrary to the purpose of open records laws.
“[I]t would be helpful if the legislature were to revisit the cost issues that have become prominent in public record requests and determine whether the taxpayers should bear the full financial burden for public record requests or whether requesters should be active participants in the cost involved in required record separations,” Justice Pat Roggensack wrote in one of the opinions. The case is Milwaukee Journal Sentinel v. City of Milwaukee, 2012 WI 65 (Wis. June 27, 2012).
In a blog post today, NASA rolled out Version 2.0 of its Open Government Plan, aiming for an unprecedented level of transparency among large government agencies. The space agency already has numerous datasets available for public use and is working to make its computer code similarly open. The "flagship initiative" is redesigning nasa.gov to integrate search, video, and social media while building "an accessible, participatory and transparent web environment based on open and interoperable standards."
Maybe the most interesting of NASA's plans are its "technology accelerators." The International Space Apps Challenge will be a two-day global code-a-thon to develop applications solving space and social need problems. LAUNCH is a collaborative effort at social entrepreneurship between NASA, Nike, the US Agency for International Development and the State Department to align innovators, investors, and advisers towards accelerating technological advancement. Finally, Random Hacks of Kindness looks to create a community to develop open source solutions for social good.
Washington placed 3rd in the nation in a recent investigation of “State Integrity,” sponsored by the Center for Public Integrity, in collaboration with Global Integrity, and Public Radio International. www.stateintegrity.org/
This is great news for Washington, but better news without studying the details.
Grades were based on various factors including: accountability at all three branches of government, public access to information, civil service management, internal auditing, pension fund management, insurance commissions, political financing, budgeting, procurement, lobbying disclosure, ethics enforcement, and redistricting. But the devil is in the details, and the details of this grading system are questionable.
As an example, whether state records are accessible at a “reasonable cost” is one component of the grading system and crops up in different areas. Washington agencies may not charge for locating records responsive to a request, nor may they charge for making records available. Washington may, however, charge for the cost of copying documents. In Civil Service Management, Washington received a grade of 0% under the category of making records available at a reasonable cost because it is authorized to charge for providing records. www.stateintegrity.org/washington_survey_state_civil_service_management
In the area of public access to records, Washington received a score of 100% for making records available at a reasonable cost, and the survey cited the same statute allowing the state to charge copying costs. http://www.stateintegrity.org/washington_survey_public_access_to_information The inconsistent metric calls into question the rankings altogether. A closer look into the other categories reveals similar weaknesses.
The Senate Majority Leader from #1 ranked New Jersey said, “I’m still in shock. If we’re number one, I feel bad for the rest of the states.” The Center for Public Integrity credits New Jerseys’ success to recent anti-corruption legislation accompanied by careful enforcement. But the Senator’s surprise may also be attributable to the grading system. Corruption is difficult to predict or prevent, and difficult to unearth while it is occurring. It certainly is difficult to measure. Although Washington performed well in this ranking, it may be wise for all states to chart a path that does not derive from a formulaic investigation of “integrity” or “corruption.”
You’re not from around these parts – 4th Circuit upholds Virginia’s denial of non-residents’ public records requests. [Courthouse News Service]
CSPAN Nine in the making? Senate Judiciary Committee votes in favor of allowing television cameras into the U.S. Supreme Court; Scalia retorts that only town criers were contemplated by the Founders. [Citizen Media Law Project]
New Jersey municipalities attempt to limit videotaping of council meetings. What happens if Snooki and J-Woww show up unexpectedly? [The Record/NorthJersey.com]
New tools, new arguments. Cities struggle with tablet computing and text messages during meetings. At least the fights aren’t about Angry Birds and sexting in session. Yet. [Petaluma Press Democrat] [Voice of OC]
Washington cities are trying to balance blogs, tweets, pokes, and likes with laws written four years before Steve Jobs sold his first Apple. [Kitsap Sun]
Update: The Seattle Times corrected its coverage to reflect that Councilmember Wright was convicted of domestic violence assault in 2007.
On February 5, 2012, Emily Heffter from the Seattle Times reports about Gold Bar:
Most small towns have a local busybody.
In Gold Bar, it's Anne Block, whose hyperlocal news site is a hotbed of rumors and accusations. She writes that city officials are "evil people," "wife-beaters" and "promiscuous." There also are restaurant recommendations and a recipe for peanut-butter cups.
On her site, goldbarreporter.org, Block likened the former mayor to a dog and accused the former City Council of tampering with meeting minutes, hiding public records and making Gold Bar like "a religious fundamentalist town in Iran."
Block, 44, is an attorney who has become one of Snohomish County's most notorious activists as she's taken her crusade for a more transparent government online. She's also become a divisive figure in tiny Gold Bar, which is dealing with money problems while trying to respond to Block's four lawsuits and extensive requests for public records.
Block, a Massachusetts native, moved to Gold Bar in 2006 after law school and started her news website to try to publicize what she alleges as corruption at Gold Bar City Hall. She is aided by unsuccessful City Council candidates Susan Forbes and Joan Amenn.
Block and her partner visited the Seattle area and loved it so much they decided to move to Gold Bar so she could set up her employment-law practice. Her partner, Noel Frederick, also has an interest in politics and has run for City Council.
"What motivates us? Basically, in a nutshell, it's open government and the idea that a handful of people can effectively make change, just like Martin Luther King and Elizabeth Cady Stanton and Susan B. Anthony," Block said.
Asked whether they're certain everything on the site is true, Block and Forbes answered simultaneously:
"Yes," said Block.
"It may not be perfectly true," said Forbes, "but there's something in it that's true."
In September, Block posted a story alleging that County Executive Aaron Reardon spent taxpayer money on a trip "with his mistress and a former Snohomish County employee."
The allegation came out of the blue during Reardon's re-election campaign — at the top of a story titled: "Reardon's deck of cards loaded with jokers and criminals" that featured his photo floating in front of a background of animated falling confetti.
A month later, a county employee did come forward and say she had traveled with Reardon on county trips as part of an affair. The State Patrol is investigating whether Reardon misused county funds. The executive has denied criminal wrongdoing, but has not commented on the alleged affair.
There's a gray line between opinion and fact, said Judy Endejan, who practices media law in Seattle. But the language on Block's website raises a red flag, she said.
"Right now we're in an age where, you know, it's kind of the Wild West because people feel like they can just say anything on the Internet and not have to suffer the consequences, and that's not really true," she said.
'Too much corruption'
The Gold Bar Reporter's newsroom is Block's kitchen table in a subdivision with a mountain view. There in front of her laptop — with her snowflake tablecloth and collection of souvenir spoons — she churns out articles about local officials and puts them online.
"We decided there's been just too much corruption out here in Gold Bar, so we had to do something," she said in an interview she agreed to do via Skype because she believes her phone lines are tapped.
Eventually, Block, Amenn and Forbes would like a traditional community news site. But they said there's so much corruption they don't have time to write many feature stories.
Block started going to City Council meetings a few years ago and became annoyed that the mayor, Crystal Hill, was bringing her kids to the meetings and leaving them in the break room. So, she said, she emailed Hill and told her to get a baby-sitter because they were disrupting the council.
Later, Block requested all of Hill's email, then accused her of a whole list of things: affairs, extortion, hiding public records, and she even disclosed an alleged medical condition. She put it all on her website, because, she said, "Why not?"
Hill didn't want to comment for this story. She married John Pennington, the head of the Snohomish County Department of Emergency Management, and moved out of town in 2009 before her term ended.
Hill has said she resigned because of relentless harassment.
She told The (Everett) Herald shortly after she resigned that someone using an alias had been bombarding her, her family and her Seattle employer with emails accusing her of using drugs, supplying drugs to city staff and having an affair with a fired city employee. Hill said at the time the allegations were false and she had little recourse.
For Block, one records request led to another, and another, and several with Snohomish County government, as well. One of her lawsuits seeks records that mention her own name.
"She's a hot topic in town," said City Councilmember Christopher Wright. "It's not a secret that Anne Block is suing the city and making wild accusations about people."
The Gold Bar Reporter calls Wright "a deviant criminal, wife beater and liar." Court records show Wright has never been charged with domestic violence, though he was convicted of assault and drunken driving almost 20 years ago.
Wright said he has had to answer co-workers' questions about whether he really beat his wife. (He says he didn't.)
"People would come up to me and say, 'Oh, we read about you online.' And that's when it really, really got to a point that I really would have loved to sue her," he said.
Block estimates she's read 125,000 city and county emails. She knows a lot of dirt on everybody — and her articles range from true to partly true or exaggerated.
Says Endejan, the media lawyer: "If you accused someone of being a drunken wife beater, I would probably drill you pretty hard on what facts you had to support that, and one drunken-driving conviction 25 years ago probably wouldn't do it for me."
But everyone is so afraid of being sued by Block that they don't dare try to stop her, said Mayor Joe Beavers. On Block's site, the mayor is nicknamed "Tricky Beavers."
Gold Bar is home to about 2,000 people. That means Block, Forbes and Amenn run into their subjects at the grocery store, the gas station, everywhere.
The situation has taken a toll on their relationships with the locals.
After handling Block's records requests for a couple of years, the city clerk said in a court declaration that she was uncomfortable serving as a witness in a lawsuit because the Gold Bar Reporter website had created an environment that was "contentious and hostile."
Block doesn't go into City Hall alone, and she recently bought a gun because she said someone tried to kick in her door.
"I've had death threats. I've had beer bottles thrown on my front lawn."
Actually, she clarified, it was a half-filled can of Miller. She has photos she says prove someone put a tracking device on her car.
"I wonder when I turn the key to my car one day whether it's going to blow up."
Chunk of budget
In 2010, Gold Bar spent $70,000 of its $573,898 budget responding to public-records requests, almost all of which were from Block and Forbes, according to a filing in Snohomish County Superior Court.
"As mayor, I have had little time to do anything but respond to the PRRs that have been submitted and continue to be submitted by Forbes and others," Beavers wrote in a statement for the court.
Beavers is lobbying the Legislature for a law that would allow cities to deny records requests they deem harassing.
The city has paid thousands of dollars to an Issaquah technology company to dissect Hill's personal Blackberry to ferret out her disclosable emails. Gold Bar hired a sixth employee and transferred one of its two maintenance workers into City Hall to help respond to requests, according to the mayor's court affidavit.
Wright says they are spending so much on records requests, they can afford to snowplow only the major arterials.
City officials say they don't read the Gold Bar Reporter ("except for humor," said Beavers). But they have saved hundreds of printouts documenting the last three years of postings.
The Jan. 10 City Council agenda had 10 items, and eight of them were regarding lawsuits filed by either Block or Forbes.
The crusade is costing Block tens of thousands of dollars of her own money, she said, but she won't back down because she's so committed to cleaning up government.
In a September 2009 posting, Block summed up her potential impact this way:
"For years, people like Crystal Hill ... have controlled and manipulated Gold Bar residents and local politics. But with an activist attorney in Gold Bar, along with a new online newspaper, those days are numbered."
Information from The Associated Press is included in this report. News researcher Gene Balk contributed.
Emily Heffter: 206-464-8246 or firstname.lastname@example.org. On Twitter @EmilyHeffter.
Social media is an issue for local government everywhere as shown by the Jackson (Mississippi) Fire Department’s recent foray into internet posting policies. A disgruntled former employee created a Facebook post with unsavory information about the Fire Department, forcing the Department into a conversation about its social media policy.
The Jackson Fire Department issued a memo on social media, while the City itself is still developing a full policy. The Department’s memo encourages employees not to: publicly discuss issues that might be detrimental to the Department or that might conflict with the duties and ethics of a firefighter; to air personal grievances; and clarify that their opinions are their own and not those of the Department.
The rise of social media outlets like Facebook, LinkedIn, and Twitter presents an important communication opportunity for public entities and their constituents. However, the use of social media needs to be carefully planned to avoid pitfalls. Social media is, by definition, an interactive tool intended to create conversations among users and provide a venue for commentary and feedback. For public entities, the tool is useful for broadcasting to a growing internet audience, but allowing feedback and conversation can be a risk. Like the Jackson Fire Department, every government entity will need to have a conversation about the inherent conflict between an individual’s free speech rights and the government’s legitimate right to protect the government service.
Although it is important for public entities to use as many of these communication channels as practicable, the constant need to update and monitor social media outlets drains staff resources.
Public entities must also consider how they will comply with their archiving and public records responsibilities when communicating in an electronic format.
It should be clear to constituents that messages intended for the public agency should be conveyed through the agency’s official website. For example, a public records request or other official query won’t necessarily be recognized via Twitter or Facebook.
These considerations are plaguing the private sector, as well. McDonald’s launched a Twitter campaign last week with the hash tag: “#McDstories.”
When users co-opted the hash tag to distribute negative stories about McDonald’s, the company rapidly ended the campaign. The company stated in an email to the Silicon Valley Business Journal: "With all social media campaigns, we include contingency plans should the conversation not go as planned. The ability to change midstream helped this small blip from becoming something larger." This is a wise strategy for any entity using social media, public or private.
On November 25, 2011, Sharon Salyer of The Herald reported on Everett School Board planning to hold a forum early next year to discuss open government. The following is a reprint of the article in full:
Controversy has swirled around the Everett School Board all year over openness and transparency.
The school board now plans to hold a forum early next year to have outside experts discuss issues such as the state Open Public Meetings Act and the steps involved in getting records from government agencies.
Ed Petersen, school board president, suggested during a meeting Tuesday night that the school district contact a nonpartisan group, such as the League of Women Voters. The group could help select the experts who would speak on the state's open-government laws.
The goal is to have the event in January or February, Petersen said. It would give the public an opportunity to talk about openness in government.
"The benefits we're looking for are a better informed community and information from those who attend to help us in our operations," he said.
The idea for the forum was first proposed in September, as the School Board was wracked with controversy following a scuffle among three members, Petersen, Kristie Dutton and Jessica Olson.
Olson has often been at odds with other board members since being elected in 2009. Fellow board members have censured her twice this year.
At the same meeting that the school board was considering Olson's second censure, planner Reid Shockey of Everett suggested the special public meeting, which would include a panel of experts discussing open government and the state Open Public Meetings Act.
In other business during Tuesday's School Board meeting, board members discussed whether to grant a request from Olson to see unredacted copies of legal invoices or bills since June from a Seattle law firm which advises the school district.
Board member Jeff Russell said he was concerned about Olson's request to view unredacted invoices because they contain private and confidential information about staff, students and families.
"We rightly place conditions upon the viewing, copying, reporting or moving of such records," he said.
Dutton asked for Olson to sign a document saying that she would not remove any of the documents or post them on social media sites or in other way violate the privacy rights of those involved in legal issues.
"We have had Director Olson's assurance before that she would not copy or take the invoices and she did exactly that," said board member Carol Andrews.
Olson asserted that the legal invoices are not confidential. "They're the public's documents," she said.
Student names are abbreviated or initials are used, she said. Her earlier review of the legal billings showed "there was not one piece of information ... required to be redacted."
"We're telling the public that the invoices belong to the district and not the public," she said. "Each one of us is duly elected by the citizens. We have the right to go in and look."
The School Board voted not to allow Olson to see the unredacted invoices. However, Andrews later suggested that the board allow all board members regular access to redacted attorney invoices.
The motion was made after Olson left the meeting after approximately three hours due to a scheduling conflict. That motion was approved unanimously for the four remaining board members.
Sharon Salyer: 425-339-3486; email@example.com.
On Friday, Ted Sickinger of The Oregonian reported on changes to the Oregon Public Employees Retirement System that allow public disclosure of individual members' information. The following is a reprint of the article in full:
The board of directors of Oregon's public employee retirement system voted 3-to-1 Friday to change its rules to allow the public disclosure of members' individual benefits.
The administrative rule change reflects a legal settlement that PERS reached earlier this year to release benefit information to The Oregonian and the Statesman Journal in Salem on Nov. 21 for 110,000 individual retirees.
The PERS Board was quick to note the release is still contingent on a hearing Monday in Marion County Circuit Court, where a group of retirees has filed a class-action lawsuit seeking to prevent release of the information.
"It's out of our hands -- above our pay grade," said James Dalton, a former technology executive who chairs the PERS Board. "It's in the court system and we'll abide" by what the court determines.
The Oregonian has long sought access to such information as part of its reporting on the retirement system's costs and financial difficulties. PERS previously released individually identifiable pension benefits, but started denying requests for such information on all but the most prominent public employees in 2002, saying the information was exempt from public records laws.
Attorney General John Kroger changed that course last October, ordering the agency to release individually identifiable benefit information to the two newspapers.
Pat West, a former Salem firefighter who sits on the PERS board, was the lone vote against the rule change. He said he opposed the data release, which he contends could make retirees marks for financial scams.
The rule change was administrative to align policy with the settlement, and has no bearing on whether the data is releasable, board members said. But they were heavily lobbied by retirees to vote against it.
The Oregonian has intervened in the employees' lawsuit. Its lawyer, Portland attorney Charles Hinkle, says he hasn't seen issues related to the release of similar data in other states, and is confident the court will agree with the Attorney General.
The New Mexico Supreme Court recently upheld public access to formal citizen complaints filed against police officers.
In late June, the Court denied a request for review of a lower court ruling. That decision left in place a 2010 appellate court decision which held that formal citizen complaints against police officers were public records and could be released under New Mexico's Inspection of Public Records Act (“IPRA”). Cox v. New Mexico Dept. of Public Safety, 148 N.M. 934, 242 P.3d 501 (N.M. App. 2010). The New Mexico Department of Public Safety sought to withhold the records, claiming that the citizen complaints fell under an IPRA exemption for "matters of opinion in personnel files" because the records relate to an officer’s job performance. However, the New Mexico Court of Appeals found the exemption inapplicable, finding that citizen complaints necessarily arise from an officer's role as a public servant, not the employment relationship with a public agency. The appellate court noted that internal investigation reports and employer opinions generated as a result of citizen complaints remain exempt under as “matters of opinion in personnel files.” However, the complaints themselves cannot be withheld. 242 P.3d at 507-08. The court commented that though the Department of Public Safety “is the keeper of the information contained in the citizen complaints, the information continues to belong to the citizen who made the complaint.” Id. at 507. Even if the allegations or complaints are untrue, it is not a basis for withholding information from the public. Id.
A similar debate is ongoing in Seattle, as noted in our earlier blog post. The Seattle City Attorney’s office recently appealed an arbitration decision that ordered the Seattle Police Department to stop releasing the names of officers found to have engaged in misconduct. Washington’s Public Records Act provides a strongly worded mandate for broad disclosure of public records. Exemptions are narrowly construed. See Yakima v. Yakima Herald Republic, 170 Wn.2d 755, 791, 246 P.3d 768 (2011). The City of Seattle argued that the arbitrator’s decision violates the PRA, as there is no applicable exemption that would allow withholding the names. The Seattle Police Guild argued that the “law-enforcement” exemption applies which prevents law enforcement or investigative records from public inspection and copying. See RCW 4.56.240. The case is currently pending in King County Superior Court.
“Name release” disputes arise regularly in many contexts, particularly education. In a 2008 Washington case, Bellevue John Does 1-11 v. Bellevue School District 405, 164 Wn.2d 199, 189 P.3d 139 (2008), the Washington Supreme Court held that the identities of public school teachers accused of sexual misconduct may be disclosed to the public when the misconduct is substantiated or the teachers’ conduct resulted in some form of discipline, even if only a reprimand. 164 Wn.2d. at 205. In contrast, the names of teachers who are the subject of unsubstantiated allegations are exempt from disclosure under the PRA. Id. at 212.
Depositions That Are Not Used in a Case - Even Those Held Before a Judge in a Courtroom - Are not Open to the Public
The Washington Supreme Court rejected an appeal from Tacoma News Tribune to see the videotaped deposition of a primary witness against a former Washington State trial judge. Tacoma News Inc. v. Cayce (July 14, 2011). [Tacoma News, Inc. v. Cayce (Dissent)]
The primary witness in the underlying criminal case had long evaded a court subpoena and was being held in jail as a material witness until he could be deposed. The prosecutors scheduled a videotaped deposition to preserve the witness testimony, fearing the witness would again disappear. The deposition was held in the Pierce County courthouse so that it would be easier for the jail guards to escort and guard the witness. At the parties’ request, Judge Cayce, the visiting judge from King County, was also present in the otherwise-empty courtroom to make rulings, if necessary, as the deposition proceeded. As it turned out, the witness did actually appear to testify, and the videotaped deposition was never offered nor produced at trial.
The criminal case involved the prosecution of Judge Michael Hecht, a sitting Pierce County Superior Court judge, who was alleged to have both solicited male prostitution and to have threatened one of them if he said anything about the judge’s interactions. Hecht was later convicted by a jury and sentenced by Judge Cayce.
The Tacoma News Tribune argued that, because Judge Cayce presided over the deposition in a Pierce County courtroom, the videotaped deposition became a public court proceeding to which the newspaper and the public had a right of access under the Washington and US Constitutions. The Washington Supreme Court, however, in a 7-2 decision disagreed. The Court held that the fact the deposition was held in a courtroom and that the judge was present to make rulings did not convert a deposition into a courtroom hearing. Depositions are normally closed to the public and never become part of the court record, unless they are used in the trial or relied on in a motion. The fact that the judge was physically present to rule on objections did not alter the fact that this was a deposition and not court testimony.
The Court found that, since the deposition never became part of the court record, it was not subject to disclosure under Article I, Section 10 of Washington’s Constitution that provides “Justice in all cases shall be administered openly and without delay.” Quoting from a prior case, the Court stated: “Article I, section 10 is not relevant to documents that do not become part of the court’s decision.”
Can Disruption at a Public Meeting Lead to a Moveable Feast? Yes, But Washington's Open Public Meetings Act Requires that the New Location be Decided by Vote
The Tacoma News Tribune reports that the Puyallup School Board may have run afoul of Washington’s Open Public Meetings Act (“OPM”) when it adjourned a disruptive meeting to a new location without disclosing where that was.
The Puyallup School Board faced a rowdy crowd at its May 9 meeting – a vociferous display of support for a local high school Principal who had submitted his resignation. When the time came to vote on whether to accept or reject the Principal’s resignation, shouting and chants from the crowd reportedly disrupted all order at the meeting. The Board President announced an adjournment of the meeting to another location.
But, the Board appears to have overlooked specific requirements of the Open Public Meetings Act. RCW 42.30.050 allows a public body to adjourn a disruptive meeting and reconvene at a new location. However, that new location must be “selected by majority vote of the members.” Thus, not only must there be a vote to move to a new location, but the new location must be publically approved by a majority of the Board. Public notice of the new location is vital and necessary, because the same statute also provides that “Representatives of the press or other news media, except those participating in the disturbance, shall be allowed to attend any session held pursuant to this section.”
Adherence to the procedural requirements of the OPM are critical, as RCW 42.30.060 mandates that actions taken in violation of the OPM are null and void.
The Washington State Senate has passed Substitute Senate Bill 5553, which requires that most public agencies owning and maintaining a website post certain information, including agendas, legislation and minutes.
SSB 5553 adds a new section to chapter 42.30 RCW, the Open Public Meetings Act. The text of SSB 5553 is available here.
While the goal of SSB 5553 is admirable, many public agencies have expressed serious concerns, including uncertainty about the finality of legislation, inability to amend legislation at regular meetings and the specter of personal liability for members of governing boards.
The State House of Representatives Committee on State Government and Tribal Affairs has scheduled a public hearing on SSB 5553 for 10:00 a.m. on Thursday, March 24.
For more information about the provisions of SSB 5553 and some of the concerns raised, click here.
Has the Obama Administration effected real change in FOIA responsiveness? A recent Associated Press article, claims that the federal Freedom of Information Act is unwieldy and difficult, and that only the most patient and persistent requesters actually obtain the sought-for information. The article is critical of agencies’ efforts in implementing President Obama’s promise to make government more open and release more information rapidly.
During an event sponsored for Sunshine Week, March 13-19, reported in the AP article, Associate Attorney General Tom Perrelli is quoted as stating that more records are going out unredacted than ever before. “Where we once might have looked at a document, noticed a piece that could be released, and redacted the rest, we’re now more often determining that we can release the whole thing,” Perrelli is quoted as saying. However, a witness before the Senate Judiciary Committee, Thomas Fitton of Judicial Watch, stated that the conservative watchdog group has “filed 44 lawsuits to force the Obama administration to comply with the law.”
But perhaps there has been a change in how the Administration views the FOIA – now that it is on the inside. In a blog posted March 16 to celebrate Sunshine Week, Steve Croley, a Special Assistant to the President for Justice and Regulatory Policy, points out that it is not in the public’s interests to release every document: “Our government also owes its citizens, among other things, protection of their personal privacy and business confidentiality, effective law enforcement, and a strong national defense.”
In Washington State on the other hand, the courts continue to liberally construe the state’s Public Records Act, and continue to extended its reach. See, for example, the expansive interpretation of the Public Records Act to include records contained on a city council member’s home computer discussed in our blog post of December 22, 2010, “City of Monroe, Washington Pays $157,394 to Settle Public Records Act Case.”
In this era of WikiLeaks’ disclosure of secret State Department and military cables, the question of what is and what is not “confidential” government information has become more opaque.
Conflicting viewpoints on the issue of what is “confidential” also arise in the local government context, as reported in the February 28, 2011 edition of the Everett Herald: “Legality of disclosing executive session information not an easy call.”
The Everett Herald reported on the censure of an Everett School Board member for disclosing information from a closed, executive session about a potential building purchase. But, the newspaper noted there is a real dispute between the school board and the censured school board member about whether the information she discussed potential acquisition of an office building for multiple educational uses was already public knowledge.
The Everett Herald article points to a continuing dilemma for public officials in Washington, especially for an elected official who finds conflict between the official’s interest in wide ranging conversations with constituents, and the official’s duty to the office to which elected. Washington law expressly prohibits a public official from “disclosing confidential information gained by reason of the officer’s position.” RCW 42.23.070(4).
For elected board members, confidential information is most frequently obtained in a part of a meeting when in executive session under one of the reasons listed in RCW 42.30.110. Listed as the second of those reasons is for an executive session to “consider the selection of a site or the acquisition of real estate by lease or purchase when public knowledge regarding such consideration would cause a likelihood of increased price;” – the specific provision that is the subject the Everett School Board censure.
One can well understand that if a government’s interest in purchasing a specific building or parcel of land and its ultimate price limit is known, that this information may well cause the government and its constituents to pay more that it otherwise would. Thus the justification for an executive session in the first place and the parallel prohibition against disclosing confidential information all make sense. But what is and what is not confidential is often disputed, as illustrated by the Everett School Board controversy. This also highlights the common law and statutory requirements that the elected official’s first responsibility is to the agency, notwithstanding the interest in public communications. See, RCW 42.23. 070(3) (prohibiting a municipal officer from holding another position that would “require or induce” the official to disclose confidential information acquired by reason of the public office). Best practice for any governing board facing this dilemma is to explicitly identify in the executive session itself what it considers to be the particular elements that are and should remain confidential.
The New York Times has been reporting on how open public records laws are being enlisted in the fight against governmental corruption – not here in the United States – but on the other side of the world, in rural India. In 2005, India joined a growing list of developing countries to enact a national open public records law, known as the Right to Information Act (“RIA”). The legislation’s preamble asserted that “democracy requires an informed citizenry and transparent information” and identified curbing governmental corruption as a central goal of the RIA. The RIA requires governmental agencies to respond to citizen requests for information within 30 days of receiving a request. Similar to Washington’s Public Records Act, 42.56 R.C.W., and the federal Freedom of Information Act, 5 U.S.C. § 551-559, governmental agencies that fail to comply with information requests are subject to daily penalties.
In 2010, the New York Times reported on how the RIA was leveling the playing field between corrupt governmental bureaucrats and India’s poor. Right-To-Know Law Gives India’s Poor a Lever, New York Times, June 28, 2010. The piece included a number of stories illustrating how India’s poorest citizens used the RIA to spur governmental bureaucrats into action. One story involved an impoverished mother of three who had been waiting for four years to receive a housing assistance grant. After seeing her well-to-do neighbors receive grants ahead of her, the mother used the RIA to request records detailing who had received grants in her community and why. Days after submitting the request, governmental officials approved her grant. In another village, community members became fed up with a public health care worker who rarely showed up to staff the community health clinic. The citizens utilized the RIA to request copies of the clinic’s attendance records. With her attendance record revealed, the health care worker started showing up every day. Success stories like these have provided hope to good governance advocates that India is moving in the direction of open and transparent government.
However, on January 22, 2011, the New York Times published a follow-up story showing how opponents of open government have begun using violence to intimidate and silence requesters. High Price for India’s Information Law, New York Times, January 22, 2011. The article described one case where a requester was murdered after uncovering evidence about an illegal mining operation that may have involved government officials. The author estimated that at least a dozen requesters have been murdered since the RIA was enacted in 2005 and scores of others have been beaten and harassed. This violence is apparently having a chilling effect on many would-be activists.
Time will tell whether India’s nascent open public records policies can survive this backlash.
As more state and local governments are utilizing the internet and social media to reach out to citizens, Washington and 14 other states recently reached an agreement with Facebook that changes the website’s standard user agreement as applied to state and local agencies. In a press release from his office, Washington State Attorney General Rob McKenna acknowledged the growing importance of Facebook in helping state agencies and local governments to communicate with constituents.
Nearly a year in the making, the amended terms alter Facebook's standard terms as applied to state and local governments utilizing Facebook Pages for official use. Facebook Pages are different from the average individual person’s profile in that they are intended to promote businesses and other commercial, political, or charitable endeavors. The agreement, already in effect and applied retroactively to governments with an existing Facebook presence, eliminates Facebook’s choice of venue and governing law clauses while limiting a government agency’s indemnification of Facebook for the agency’s actions to the extent permitted in the agency’s jurisdiction. In Washington, the site’s general indemnification terms, protecting Facebook from “claims related to [a government’s] actions, content or information on Facebook,” may apply to local governments and state agencies as these entities generally have authority to contract for indemnification.
While this agreement resolves some issues facing governments interested in developing a social media presence, there will likely be continued growing pains as bureaucratic organizations deal with the increasingly complex electronic world. Local governments will continue to manage concerns on many social media fronts, including public records in cyberspace and user comments on Facebook and Twitter posts.
In our posting on November 18, 2010, we noted the reported complaint by a Sumner City Councilmember against the City's mayor and others. The claim arose from comments adverse to the councilmember made in an open, public meeting of the Sumner City Council. The councilmember asserted that the use of public city council meetings for such political comment was a violation of law. With limited exceptions, Washington law prohibits the use of public property and resources for political purposes. See RCW 42.17.130. The Tacoma News Tribune has now reported that the Councilmember's allegations have been rejected by the State's Public Disclosure Commission.
The Everett Herald reported today that the City of Monroe had agreed to pay over $150,000 to settle a five-year old dispute involving disclosure of public records. According to the Herald, the claimant spent approximately $115,000 in attorney fees to litigate this drawn-out dispute.
The subject of the request was e-mail traffic from and to City officials regarding City Council meetings in March 2005. The City, however, refused to provide unredacted e-mail messages from the home computers of various council members, citing privacy protection exemptions in the Public Disclosure Act. The City also claimed that it was not required to provide electronic copies of the e-mail records.
The City won in Superior Court, but lost in the Court of Appeals Mechling v. City of Monroe, 152 Wn. App. 830, 222 P.3d 808 (2009). The Court of Appeals held that e-mails are “records” – even on a home computer - under Washington’s Public Records Act. The City bears the burden to demonstrate why it could not produce electronic copies of those e-mails, if requested. Indeed, since the Mechling decision in 2009, the Washington Supreme Court has ruled that even the “metadata” contained in electronic e-mails is a public record and must be produced when requested. O’Neill v. City of Shoreline, ___Wn.2d___, 240 P.3d 1149 (October 7, 2010).
The Court of Appeals in Mechling also ruled that e-mail and the home e-mail addresses of council members who sent e-mail messages about City business from their home computers was not protected by the privacy exemptions of the PDA. First, the Court noted that the council members had themselves made those e-mails subject to public disclosure by using their home computers for City business. Second, the Court stated that the privacy protections apply to information in a personnel file, not to information found on business e-mails.
The Mechling case serves as yet another reminder that when elected officials use their home computers for government business, those records – including their home e-mail addresses – become subject to public disclosure.
The Dallas Morning News sought payroll data from the State of Texas. The Texas Comptroller responded with detailed information, including name, age, race, sex, date of initial employment and pay rates. But the Comptroller withheld the employees’ birth dates. The Comptroller then asked for the opinion of the Texas Attorney General, who concluded that the date of birth information could be disclosed.
An action commenced and the trial court and Court of Appeals agreed with the Attorney General. On December 3, 2010, the Supreme Court reversed, holding “a disclosure of state employee birth dates would constitute a clearly unwarranted invasion of personal privacy and therefore exempted from disclosure” under the Texas public disclosure law.
In its consideration, the Supreme Court made specific reference to the public harm caused by identity theft and that the availability of birth dates may facilitate identity theft. The Texas Supreme Court noted other decisions, particularly court decisions under the Federal Freedom of Information Act, that “birth dates implicate substantial privacy interests.”
The tension between open meeting laws and laws restricting use of public property for political activities is highlighted by a reported incident out of the City of Sumner, Washington. According to the Tacoma News Tribune, a councilmember has filed a complaint with the State’s Public Disclosure Commission. The complaint is reported to assert the Mayor and other City officials allowed political speech (criticism of the councilmember who was running for a state legislative office) to continue at a public meeting of the Sumner City Council.
Washington, like many states, has a public meeting law that requires public access to meetings of a municipal governing body and related agencies. While public access does not grant a public right to speak at such a meeting (the public has a right to speak at public hearings, not meetings), local councils and commissions regularly provide for citizen comment at some time during a meeting’s agenda. The presiding officer of such a meeting can control the meeting to prevent improper conduct by a citizen. See Council Meeting Conduct and Citizen Rights under the First Amendment.
But, in addition to laws providing for open public meetings, many states prohibit the use of public facilities, funds and personnel to advocate for a political campaign or to support a ballot measure. See RCW 42.17.130, the Washington State law that address this issue. According to the News Tribune, the Sumner councilmember urged the Mayor to cut off a speaker at a city council meeting. The speaker was, according to the councilmember, using the council meeting to advocate for that councilmember’s opponent in the legislative race (and using the City facilities for political activity). The mayor, and apparently the rest of the city council, disagreed with the Councilmember under fire, and the speaker was allowed to continue. The Public Disclosure Commission will now decide whether to reconcile the potentially competing public policies of open public meetings and the prohibition on use of public facilities for campaign activity.
The attached news report from Port Angeles illustrates the problems of forgetting that joint agencies created by a combination of local governments are generally subject to the Open Public Meetings Act, to the same extent as the founding agencies themselves. Port Angeles pool director choice to be a 'do-over; Open Meetings Act is factor
In this case the board of a Pool District acted to hire a new director in a closed session after interviews. The Pool District was created by the City of Port Angeles and Clallam County The District Board apparently overlooked the Open Public Meetings Act (Chapter 42.30 RCW; “OPMA”) when it did so. The solution was to dry off, step back from the edge and dive anew into the hiring process – this time in public.
This circumstance serves as a needed reminder that new, combination agencies created by public agencies are also governed by the Open Public Meetings Act. While the definition section of the OPMA (RCW 42.30.020) does not specifically include an agency created by two or more public agencies, it does include language that covers “[a]ny subagency of a public agency which is created by or pursuant to a statute, ordinance or other legislative acts. . . .” RCW 42.30.020(c).
Washington courts have broadly interpreted both the OPMA and the Public Records Act (Chapter 42.56 RCW), as the legislation for both acts directs. An example of the breadth of this interpretation is Telford v. Thurston County Board of Commissioners, 95. Wn. App. 149, 974 P.2d 886 (1999). In Telford, the Court of Appeals held that the Washington Association of Counties and the Washington Association of County Officials were both public agencies for purposes of the Campaign Finance part of the Public Records Act. This case gave rise to what has come to be know as the “Telford test” for determining what is a public agency: (1) whether the entity performs a public function; (2) the level of government funding; (3) the extent of government involvement or regulation; and (4) whether the entity was created by government.
Here, the Pool District meets each of those four parts of the “Telford test.” [See, for example, Clarke v. Tri-Cities Animal Care & Control Shelter, 144 Wn. App. 185, 181 P.3d 881 (2008), applying the “Telford test, to hold that the Animal Shelter – even though a privately run corporation – was a public agency for purposes of the Public Records Act.] The OPMA therefore applies to the Pool District, and a public reconsideration of the District’s hiring decision was the right thing to do.
Double dipping (“retired” public employees receiving a public pension, but still working and being paid by another public agency) makes some people see stars. According to a recent National Public Radio story, at least 10 states are considering enacting bans on double dipping by public employees.
The NPR story also included a report from Ohio (a state that permits double dipping) that describes journalists’ frustration over lack of access to basic information about Ohio pension payments to people who are working at other public jobs. Ohio, it turns out, has a statutory prohibition against releasing such information – apparently with the purpose of deflecting incipient criticism of public pension funds.
The State of Washington has no such specific exemption for public pension fund or salary information. But there continues to be an exemption under RCW 42.56.250(3) for the release of employee home addresses and other personal information.
A recent article in USA Today is headlined “iPads Saving Cities Paper Costs.” The story focused on the cost savings that may result from the use of iPads for internal as well as external communications of cities. The difficulty, as noted by a spokesperson for the Virginia Coalition for Open Government, is the communications on iPads (or iPhones and similar devices) do not necessarily create a record. The Coalition spokesperson was quoted by USA Today as identifying a critical issue in many states, including Washington: “Records generated are subject to disclosure, but we don’t have a mechanism for getting those records from an iPad.”
The State of Washington, like many states, broadly defines public records. The conduct of government business, whether by letter, email, text or other electronic message, may constitute a public record and governments are responsible for maintaining policies to assure public access to such records. One approach to record management is a requirement that a copy of messages relating to government business be sent to a government server.
The Washington State Office of the Secretary of State, applying that state’s Public Records Act, reminds Washington’s governments that the conduct of government business using iPads or iPhones does give rise to a public record of that communication and is to be kept consistent with the government’s record retention policy.
Court of Appeals Permits Newspaper to Obtain Sealed Attorney Billing Records in a Closed Criminal Case
In State v. Mendez, ___ Wn. App. ___ , 2010 WL 3259347 (August 19, 2010). The Yakima Herald sought as public records the sealed attorney billing records for public defenders in two related criminal cases, State v. Sanchez and State v. Mendez. The trial court denied both requests, but suggested a motion to unseal pursuant to GR 15 in Mendez because that case is closed. (The Sanchez public records case was argued to the Washington Supreme Court on March 9, 2010.)
The Mendez court held that GR 15 and the State constitutional command that justice be administered openly and permitted the newspaper to intervene and granted the newspaper’s motion to unseal the billing records of public defenders in a closed criminal case. But in doing so, the court carefully distinguished ongoing criminal cases, in which the right to a fair trial and the right to counsel may be impacted by releasing the billing time and expense records of a criminal defendant.
In releasing the billing records, however, the Court of Appeals did affirm the trial court’s redaction of time descriptions tending to reveal communications between the defendant and his appointed counsel (attorney client privilege) and those describing discovery and contacts with witnesses, and other attorney work product materials.
As everyone who responds to public disclosure requests knows, compliance with the public records act is expensive. The Yakima Herald-Republic reports that the City of Yakima is now spending $500,000 per year on public record requests, including staff and outside attorney time. The article notes that Yakima officials generally support the goal of the public records act, but wish that the legislature would do something to cut down on fishing expeditions, especially requests by lawyers who use the public records act as an end run on pre-trial discovery costs. The number of requests to the City is on a pace to reach 400 requests in 2010, up from 284 requests in 2007.
On The Willis Report (FOX NEWS, July 29, 2010), a regular FOX Business News broadcast, host Gerri Willis reviewed some of the issues surrounding efforts to gather information about the salary of public officials in Bell, California. Gerri interviewed Steve DiJulio, a Foster Pepper lawyer and regular contributor to this blog. Steve discussed that many cities, before the Bell scandal, publicly posted salary information on their websites. He also discussed the process for gaining access to salary information of public officers and employees. Watch the interview here.
The Washington Attorney General has called for legislation to create an administrative board to manage disputes over Public Record Act claims. The legislation is not likely to be considered until 2011. In an op-ed piece in Crosscut, AG Rob McKenna noted during "Sunshine Week" that this would save substantial costs when compared with the current process of litigation.
Illinois Court Distinguishes FOIA Precedent and Requires Disclosure of Police Survey under Illinois Law
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.
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.
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.
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.
Kitsap County Parks Department Takes Down Facebook Site In Light of Secretary of State's Records Management Advisory
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.
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.
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.
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.
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.
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.”
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).
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.
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"
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.
A 'Tweet' OPMA violation?
Public perception counts, technical compliance may not be sufficient. Web 2.0 creates risks and challenges.
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:
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.
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.
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."
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
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.
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.
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"
Spies should also stay off Facebook: "British spy chief outed on wife's Facebook page"
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.
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.)
"Monroe's business gets done in secret" Everett Herald
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.
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.
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.
Here is a very helpful new blog, "Unredacted," that records the Open Government Ombudsman's informal opinions on Open Government issues. Transparency at work.
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.
Foster Pepper represented the City of Federal Way in this case.
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.
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.
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.
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.
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.
Here is some more food for thought on the President's reasons for not releasing the photos.
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.
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."
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.
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.
Here is a post from Og-Blog on the open government record of Sonia Sotomayor, President Obama's nominee for the Supreme Court.
Sunshine Committee Delays Its Recommendation on the Legislature's Exemption to the Public Records Act ... Again
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.
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:
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.
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.
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.
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.
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.
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.
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.
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.
The title of this article says it all "Openness is basic to democracy."
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.
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.
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.
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.
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.
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.
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..
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.
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.
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.
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.”
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.
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.
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.
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.
As reported on the Og-Blog, Attorney General Rob McKenna has called for an initiative to reform open government in Washington State.
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.
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.
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.
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).