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 eheffter@seattletimes.com. On Twitter @EmilyHeffter.

Cloud computing and public records – will the ether be less ethereal? [Governing.com]

City of Arlington, WA chooses principle over $500 settlement with felon in public records fight. [The Everett Herald]

Public records exemptions for the rich and famous? Did Demi’s 911 call get the Watergate treatment? [Fox News]

President Obama brings FDR’s fireside chats into the interactive age. [CBS News]

Washington State lawmakers propose to rein in Public Records Act frequent fliers. [Seattle PI] [Bill Text and Status]

Will Washington State Sunshine Committee’s open government recommendations see the light of day? [Tacoma News Tribune] [Bill Text and Status]

County Sheriff nails up wanted poster on Facebook wall. Criminal comments, cautionary tale on governmental use of social media ensues. [The Daily What]

 

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.
 

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; salyer@heraldnet.com.
 

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.
 

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.
 

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.”
 

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.

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.
 

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.”
 

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.
 

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. 

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.

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.

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.”

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.

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.

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.

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.

For additional assistance in this regard, see the Secretary of State website at:
http://www.sos.wa.gov/archives/RecordsManagement/ and recordsmanagement@sos.wa.gov.