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

 The Tri-City Herald reports that the Pasco City Council, in a 5-2 decision on Monday, adopted a new policy for handling public records by creating two processing tracks based upon on the complexity of the request. The new policy is intended to help the City process relatively simple requests quickly and efficiently, without the need to be held up when staff resources are required for large, more complex requests.

Under the policy, city staff are required to use an evaluation sheet to determine whether the request is “routine” or “complex.” The factors considered are:

(1) the general, expansive or all inclusive nature of the request;
(2) the number of departments involved;
(3) the location of records and available method of searching records;
(4) the potential number of records implicated;
(5) the rights of third parties;
(6) the need for clarification of the request;
(7) administrative tasks necessary to process the request;
(8) the amount of time needed to review documents for applicable exemptions;
(9) the need for legal review of the public records request;
(10) the format of relevant records; and
(11) other relevant circumstances

A request that scores 8 points or less on the evaluation sheet is considered a “Routine” request, while a request that scores 9 points or more is considered “Complex.” City staff (i.e. the City Clerk) will then spend 50% of available time processing Routine requests and 50% of available time processing Complex requests. The agenda report describes this policy as being similar to that implemented in grocery stores with “express lanes,” for those customers with a limited number of items.

Pasco’s policy also provides requestors the option to simplify their request in order to jump from the regular lane into the “express lane” and sets forth an appeals process for those requestors who wish to appeal their initial score.

The City Council plans to review the policy in six months to see how it's working and whether further changes are needed.

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The Washington State Department of Revenue (DOR) uses a “ratio audit” to evaluate the property value of real and personal property in each of Washington’s 39 counties. The valuation of property in each of the counties is then compared against a total valuation of property in the state. The ratio audits are used by DOR to equalize yearly property taxes, and also to assist in calculating each county’s state school levy.

A former King County assessor and his daughter separately requested the disclosure of DOR’s tax ratio audits from King County. The tax ratio audit data would disclose tax information about the private properties subject to audit. King County and DOR rejected the requests under the state’s Public Records Act, chapter 42.56 RCW (PRA) Two separate actions to compel disclosure followed. The trial court dismissed each of the actions. The Court of Appeals reached the merits of the cases, notwithstanding that both of the appeals from the trial court actions were procedurally defective. The Court of Appeals affirmed the dismissal of the PRA suits.
Harley H. Hoppe & Associates, App/cross-res. v. King County, Res/cross-app (May 23, 2011).

One of the listed exemptions under the PRA is for “information required of any taxpayer in connection with the assessment or collection of any tax.” RCW 42.56.230(3). The court agreed with the County and with DOR that the specific exemption applied to the requested records relating to individual property’s personal and real property valuations. Publishing such proprietary business information obtained by the DOR in the course of its audit would disadvantage the audited taxpayer. The Court also relied on the reference in RCW 42.56.230(3) to RCW 84.08.210(2) that broadly states that “tax information is confidential and privileged, and except as authorized by this section, neither [DOR] nor any other person may disclose tax information.” The Court of Appeals found that there were no exceptions, applicable to the case, to the general prohibition on disclosure of tax information.
 

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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.

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The King County Council recently took action to ensure that the County’s use of social media, including Twitter and Facebook, complies with the County’s obligations under various King County and Washington public record laws, including Chapter 2.14 K.C.C. and Chapters 40.14 and 42.56 RCW. 

A number of County agencies are beginning to use online social media to engage and communicate with the public.  For example, Metro Transit uses its Twitter page to update commuters on the status of various bus routes – a tool that was especially important during the recent November snow storm. In light of the growing use of Facebook, King County Elections now uses its Facebook page to encourage young voter registration and to educate King County residents about the County’s mail-in ballot system. The King County Council wants to ensure that public posts on these and other County social media sites comply with public record laws.

The ordinance passed by the King County Council (Ordinance 2010-0507, Dec. 13, 2010) created a Social Media Advisory Group responsible for providing the Council with policy options for ensuring ongoing compliance. The Advisory Group will be made up of four representatives of the King County Public Records Committee, together with representatives from various King County agencies and local not-for-profit agencies.

The Advisory Group is to produce a Social Media Policy Options Report for the Council by March 31, 2011. The report is to include a range of policy recommendations, including: (1) options for effective use of social media to communicate with the public; (2) an online training module for employees authorized to use social media on behalf of King County; (3) a description of existing policies and laws that regulate King County’s use of social media; and, (4) options for cost effective ways to address the public records retention requirements.

The Ordinance also directs King County agencies to identify those employees authorized to use social media for County business and to ensure that those employees complete the training program developed by the advisory group. 

The list of public agencies using social media continues to grow. As new forms of social media are developed and adopted, government agencies should be proactive to ensure compliance with applicable public record laws. See Sven Peterson’s article: “Public Records can only be Destroyed in Accordance with Appropriate Records Retention and Destruction Policies.”  

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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.  

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

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

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

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

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

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