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.
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 May 31, 2009
U.S. Attorney General Eric Holder’s Memorandum For Heads of Executive Departments and Agencies provides a nice summary of what the presumption of openness means. The Attorney General identifies three ingredients:
1. Only assert an exemption if nondisclosure serves the exemption’s public purpose.
2. When possible, redact exempt information rather than withhold an entire document.
3. Never assert an exemption merely to hide mistakes or because of abstract concerns.
Here is what the memo actual states:
First, an agency should not withhold information simply because it may do so legally. I strongly encourage agencies to make discretionary disclosures of information. An agency should not withhold records merely because it can demonstrate, as a technical matter, that the records fall within the scope of a FOIA exemption.
Second, whenever an agency determines that it cannot make full disclosure of a requested record, it must consider whether it can make partial disclosure. Agencies should always be mindful that the FOIA requires them to take reasonable steps to segregate and release nonexempt information. Even if some parts of a record must be withheld, other parts either may not be covered by a statutory exemption, or may be covered only in a technical sense unrelated to the actual impact of disclosure.
At the same time, the disclosure obligation under the FOIA is not absolute. The Act provides exemptions to protect, for example, national security, personal privacy, privileged records, and law enforcement interests. But as the President stated in his memorandum, "The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears."
ORIGINAL POST
One way to tell a good public records law from a bad law is that a good law starts with a presumption that all records are open and then defines exceptions. A bad law will presume the opposite and instead define what records have to be disclosed.
Washington law has always included the presumption of disclosure. Here is a story about South Dakota, which just amended its public records law to include the presumption of disclosure.
Washington law codifies this presumption in two provisions of the Public Records Act:
RCW 42.56.550(1) provides "The burden of proof shall be on the agency to establish that refusal to permit public inspection and copying is in accordance with a statute that exempts or prohibits disclosure in whole or in part of specific information or records."
RCW 42.56.030 then heightens the burden an agency will have to meet before it can withhold a record by providing that the Act "shall be liberally construed and its exemptions narrowly construed" to promote the Act's stated purpose of allowing the public to stay informed about government.
The result of these two provisions is that an agency must disclose any public record, unless it can prove that under a narrow interpretation of a statutory exemption, the record is exempt from disclosure.
Update 5/21
Here's a good editorial from the Longview Daily News. Thanks to the Og-Blog for pointing it out.
Original Post 5/15
As noted in this article from the Spokesman Review, the Sunshine Committee voted on Tuesday, May 12 to delay any vote on the Public Records Act "exemption" that makes most records of state legislators exempt from the PRA. The article quotes Ramsey Ramerman, the editor of this blog and member of the Sunshine Committee.
Here are more details from the Washington Policy Blog. And here's a post from the Open Records blog giving the issue some national attention.
The vote was influenced by several factors, including that only 8 of the 13 members were present; and, a concern that some legislative records may have constitutional protections. The matter will be on the Committee's July agenda.
Here are two earlier blog posts on this subject:
Sunshine Committee considers clearing the clouds over the capitol
How the Legislature has exempted itself from the Public Records Act
Few open government bills are still alive in the 2009 legislative session. There are three bills left that we are tracking: two make changes to the Public Records Act and and one modifies the open-meetings provision in the Washington Administrative Procedures Act. The next cut-off date is Friday, April 17, when all bills have to be approved by the opposite house.
SB 5295. Unanimous Sunshine Committee recommendations
The substitute bill has been voted out of the Senate and has made it out of committee in the House, but with an amendment. Its fate is not certain.
The Sunshine Committee’s recommendations were broken into two bills, one with the unanimous recommendations and one with the non-unanimous recommendations. The former contained the non-controversial recommendations and the latter contained the controversial recommendations. Only the non-controversial, unanimous recommendations made it out of committee. Its most substantive changes affect the following exemptions:
1. Child Mortality Reviews Exemption (RCW 42.56.360 and 70.05.170)
2. Several non-substantive changes to agricultural exemptions (RCW 42.56.380)
3. State wellness program records (RCW 42.56.360 and 41.04.362)
4. Identifying information about transit riders (RCW 42.56.330(5)
SB 5130. Enjoining prisoners, Laws of 2009, Chapter 10
This bill was signed into law March 20, 2009, and took affect upon signing. It allows a municipality to file a lawsuit to enjoin prisoners from making public records requests. The municipality must show the prisoner is using public records requests to harass others.
HB 1552. Additional requirements for open meetings for state agencies
The substitute version HB 1552 amends the Administrative Procedures Act, not the OPMA. Although it no longer directly affects local governments, it will benefit them by making state agency rule-making procedures more open. The substitute bill has passed the house and the senate, but with an amendment. The amendment clarifies the bill and should be approved in conference.
The views expressed are solely those of the author and do not necessarily represent the views of Foster Pepper PLLC or anyone else. If you disagree or have any comments or suggestions, we encourage your response.
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.
As noted by Brad Shannon in this Olympian article the Sunshine Committee took testimony on a proposal by Committee chair and elected Seattle City Attorney Tom Carr to remove the "exemption" that makes many legislative records exempt from disclosure. The Committee hopes to vote on a proposal at the next meeting. See the post below for more on the exemption. The article quotes Foster Pepper Public Disclosure Team chair Ramsey Ramerman, who is also a member of the Sunshine Committee.
Here are editorials from the Tacoma News Tribune and the Olympian on the exemption.
Update 3
As noted by the Seattle Times, SSB 5130 -- the prisoner injunction bill -- is now law. It passed the Legislature and was signed by Governor Gregoire Friday, the last day of Sunshine Week. Because the law contains an "emergency" clause, it became effective immediately upon being signed.
Update 2
As hinted at by Greg Overstreet over at Og-Blog, the Olympian's position in Friday's editorial in support of the prisoner access bill is different from the Olympian's position in an editorial this summer. In that earlier editorial, the Olympian opposed the Attorney General's efforts to deny prisoner access to the PRA. But last summer, the the Attorney General was arguing for a complete bar on access for prisoners, while SSB 5130 only allows jurisdictions to deny access if they first prove the prisoner is abusing the PRA. In short, the issues are different and the Olympian's current position reflects a more balanced approach to the issue.
Here's an AP article on the bill that again highlights the challenges the Department of Corrections faces because of Parmelee's abuse..
Updated 1
Here is the February 27 editorial from the Olympian supporting the prisoner access bill.
It's unusual for a newspaper's editorial board to support legislation limiting access to public records. But we find ourself in that position on Senate Bill 5130 and House Bill 1181.
Original Post
As noted in these two articles from the Seattle Times and the Seattle Weekly, pending legislation - SSB 5130 - that would allow courts to bar prisoners from making public records requests is making its way through the House and Senate in Olympia. The bill, which seems to have momentum, would only apply to prisoners who are using the Public Records Act to harass public employees.
Prisoners may have many legitimate reasons to seek public records, and the legislation is not aimed at barring legitimate requests. But some prisoners, most notoriously Allan Parmelee — doing 17 years for firebombing two attorneys’ cars – have developed a cottage industry of making requests in hopes of tripping up agencies and intimidating public employees. Here’s an ABA article describing his exploits and abuse of the PRA. A Google search for "Parmelee" and "public records" will provide many more details.
Taxpayers have spent well over $100,000 to subsidize Parmelee’s public records business so Parmelee can intimidate and harass. This type of abuse in no way typifies your average user of the Public Records Act, but it is not unique. Abusive requests hurt transparency by diverting resources. Toby Nixon, the President of the Coalition for Open Government, notes another risk to transparency, arguing:
"If we don't give the DOC and possibly other agencies the ability to deal with Allan Parmelee, it ends up poisoning the situation for everyone else," Nixon said.
Transparency is not served by the abuse of the PRA. But as drafted, the PRA can easily be abused, particularly if someone is interested in harassing a government agency or public employees. The prisoner-injunction legislation is narrowly tailored to address one of the abuses without limiting transparency under the PRA.
This recent Olympia editorial highlights the fact that Legislators’ emails are not subject to the Public Records Act.
But there is no simple “legislative exemption” in the PRA. Instead, you have to look at two statutes.
It starts with the definition of “public record” in RCW 42.56.010(2). That definition provides that “public records means legislative records as defined in RCW 40.14.100.”
The definition of “legislative record” in RCW 40.14.100 then expressly excludes “reports or correspondence made or received by or in any way under the personal control of the individual members of the legislature.” In other words, records held by individual legislators, including their emails, are not “legislative records” and thus not “public records.”
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).
UPDATE 3/6
Here is the March 18 Sunshine Committee agenda:
Public Records Exemptions Accountability Committee
Special Meeting
Conference Room 148
2425 Bristol Court S.W., Olympia, WA
March 18, 2009, 9:00 a.m. – 1:00 p.m.
1) Call to Order
2) Adoption of agenda for March 18, 2009.
3) Review and approval of November 12, 2008 meeting minutes.
4) Discussion of bills pending in Legislature - Senate Bills 5294,5295, 5995, House Bill 2087
5) Possible modifications to Exemptions Criteria Worksheet and Schedule of Review.
– Committee discussion
-- Possible vote
6) Bylaws – Possible amendments to Article V: Meetings and Article VI: Citizen Input.
7) RCW 42.56.230(1) -- Personal information in files for students in public schools, patients or clients of public institutions or public health agencies, or welfare programs.
RCW 42.56.230(2) -- Personal information in files on employees, appointees, or elected officials if disclosure would violate their right to privacy.
RCW 42.56.250(3) – Address, phone numbers, email addresses, SSNs, etc., of public employees or volunteers held by public agencies.
--Discussion on the formation of a subcommittee to study privacy exemptions, to implement motion approved at the November 12, 2008 meeting.
8) RCW 42.56.010(2) Legislative Records
--Public comment.
--Committee discussion.
9) RCW 42.56.330(7) – Personally identifying information of persons who use transponders and other technology to facilitate payment of tolls.
-- Staff presentation.
--Public comment.
-- Committee discussion.
10) RCW 42.56.330 (8) -- Personally identifying information on an ID card that contains a chip to facilitate border crossing.
--Staff Presentation.
--Public comment.
--Committee discussion.
11) RCW 42.56.330(2) – Residential addresses and phone numbers in public utility records
RCW 42.56.335– Law enforcement access to customer records held by a public utility district or municipality owned electrical utility.
--Staff Presentation.
--Public comment.
--Committee discussion.
12) RCW 42.56.330(6) – Information obtained by governmental agencies and collected by the use of a motor carrier intelligent transportation system or comparable information equipment.
--Staff presentation.
--Public comment.
--Committee discussion.
13) RCW 42.56.330(1) – Valuable commercial information, trade secrets, etc., supplied to the Utilities Transportation Commission
RCW 80.04.095 – Utility records filed with the Utilities Transportation Commission containing valuable commercial information.
--Staff presentation.
--Public comment.
--Committee discussion.
14) Adjourn.
Original Post
The next Sunshine Committee meeting is set for Wednesday, March 18, 2009. We will post the agenda once it's available.
It will be from 9 a.m. - 1 p.m. at the Attorney General's Bristol Court Building:
2425 Bristol Court SW
Conference Room 148
Olympia, Washington
Here is the Sunshine Committee's 2008 Report to the Legislature.
Legislation with the Sunshine Committee's unanimous recommendations, SSB 5295 , was voted out of committee. Its sibling bill with the non-unanimous recommendations, SB 5294, (both sponsored by committee member Senator Adam Kline) did not move from committee.
The Sunshine Committee itself is facing possible extinction. SSB 5994 would eliminate the Committee in June 2010, while SSB 5588 would suspend the committee until 2011. Another bill that would have immediately terminated the committee, SB 5119, is not moving forward.
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