The Seattle Times reported on the Washington Liquor Control Board's payment to settle a claim under the Open Public Meeting's Act. Read the full article titled "Liquor Board pays $192K to make public records gadfly go away" here.
The Washington Open Public Meetings Act (OPMA), chapter 42.30 RCW, applies to a “governing body” as well as to a committee that “acts on behalf of” a governing body. The key definitions from the OPMA, at RCW 42.30.020, include as follows:
(1) “Public agency” means:
(a) Any state board, commission, committee, department, educational institution, or other state agency which is created by or pursuant to statute, other than courts and the legislature;
(b) Any county, city, school district, special purpose district, or other municipal corporation or political subdivision of the state of Washington;
(c) Any sub agency of a public agency which is created by or pursuant to statute, ordinance, or other legislative act, including but not limited to planning commissions, library or park boards, commissions, and agencies. . . .
(2) “Governing body” means the multimember board, commission, committee, council, or other policy or rule making body of a public agency, or any committee thereof when the committee acts on behalf of the governing body, conducts hearings, or takes testimony or public comment.
Under its plain terms, the OPMA applies to a meeting of a majority of a council or commission. What is less clear is whether the OPMA applies when less than a majority of a council or commission meets (e.g., the meetings of a 3 member committee of a 7 member council). The Washington Court of Appeals recently addressed this very issue in a case involving the 6 member San Juan County Council. Citizens Alliance for Property Rights v. San Juan County (April 28, 2014, unpublished). The Court considered a challenge, based on the OPMA, to San Juan County’s adoption of updates to its Shoreline Master Program and Critical Area ordinances. Central to the Court’s decision was the construction of the OPMA’s provisions regarding committees.
In 2010, the County began the update process to its Shoreline Master Program and Critical Area ordinances. Until early 2012, a County internal team, including three County Councilmembers and certain executive staff, met regularly to discuss the update. The team meetings were not open to the public. After the Prosecuting Attorney cautioned the team regarding the potential application of the OPMA, the Councilmembers discontinued the practice. Many months later, and following extensive public meetings, including over 30 meetings after the team meetings had ceased, the County adopted its Critical Area ordinances.
A citizens group challenged the ordinances, arguing that the County’s earlier team meetings with three of the Councilmembers constituted illegal meetings under the OPMA. The Court rejected that argument and held that the team was not a “committee” that constituted a “governing body” subject to the OPMA.
HEARINGS, TESTIMONY AND PUBLIC COMMENT
The OPMA applies to any “committee” of a governing body, regardless of the identity of the members (elected officials, staff, or members of the public). AGO 1986 No. 16. The more important question is whether the committee performs one or more of the functions identified by the OPMA to qualify that committee as a “governing body” subject to the OPMA.
In 1983, the Legislature amended the OPMA to clarify the application of the Act to certain committees of a governing body. Laws of 1983, chapter 155, § 1. Now, the OPMA applies to any committee of a governing body “when the committee (1) acts on behalf of the governing body, (2) conducts hearings, or (3) takes testimony or public comment.” RCW 42.30.020(2) (numbering added). Accordingly, any committee or subcommittee, even if composed solely of a minority of a commission or council or composed of nonmembers of a governing body (such as a task force or ad hoc working group), is subject to the OPMA if it conducts hearings or receives testimony or public comment. See Clark v. City of Lakewood, 253 F.3d 996 (9th Cir., 2001) (city planning advisory board’s task force to study adult entertainment regulation took testimony and violated the OPMA when a majority of its meetings were closed to public). The San Juan County team did not receive testimony or conduct hearings. So, that provision of the OPMA was not controlling.
ACTS ON BEHALF OF
A committee also qualifies as a “governing body” if it “acts on behalf of the governing body.” RCW 42.30.020(2). The citizens group argued that the County’s study team acted “on behalf of” of the County Council and was therefore subject to the OPMA’s open meetings requirement. The interpretation of the phrase “on behalf of” has been debated for many years. The Washington Attorney General evaluated alternative interpretations of the phrase in AGO 1986 No. 16. There, the Attorney General applied a narrower definition and concluded that “a committee acts on behalf of the governing body when it exercises actual or de facto decision making authority for the governing body.” Applying that construction, the Court held that the citizens group failed to produce evidence that the team (which included three County Councilmembers) exercised actual or de facto decision making authority for the full Council. That OPMA challenge was rejected.
In a matter of apparent first impression for Washington courts, the citizens group also argued that the three San Juan County Councilmembers constituted a “negative quorum” that could effectively block any legislation regarding the disputed issue. The citizens group cited State ex rel. Newspapers, Inc. v. Showers, 135 Wis.2d 77, 398 N.W.2d 154 (1987). There, the Wisconsin Supreme Court held that Wisconsin’s Open Meeting Law applied because four of eleven members of a governing body could block a budget ordinance. In the case of San Juan County, the three County Councilmembers could also prevent the passage of legislation. The Washington Court of Appeals declined to follow Showers, however, and applied earlier Washington court decisions that required the presence of a majority of members before there was a “governing body” subject to the OPMA. See In re Recall of Beasley, 128 Wn.2d 419, 427, 27 P.3d 878 (1996) (in recall action, no meeting of majority of school board); In re Recall of Robert, 115 Wn.2d 551, 554, 799 P.2d 734 (1990) (in recall action, no meeting of majority of town councilmembers).
The San Juan County decision is unpublished. While it provides guidance, it is not yet controlling authority. As a result, councils and commissions should be cautious about the application of the OPMA to committees, task forces and other groups that include council members or commissioners. For additional guidance, see the extensive library of OPMA materials on the MRSC website.
Last Friday, February 22, was the first major deadline for legislation to stay under consideration in the Washington State Legislature this session. Bills had to pass out of policy committees by 5 p.m. (except for bills in the House fiscal committees and Senate Ways & Means and Transportation committees where the deadline is March 1).
The following bills are still alive following last Friday’s deadline. Some have been modified, while some remain in their original form. The next important date for legislation is March 13, 2013, the last day for bills to be considered in their house of origin (full legislative calendar here).
SHB 1198: Training of Public Officials and Public Record Officers
This bill would require the Attorney General to develop and implement training programs for the Public Records Act and Open Public Meetings Act and requires members of governing bodies and elected officials (within 90 days of taking oath) and public records officers (at regular intervals) to complete the training courses.
SHB 1037: Cost Recovery Mechanism for Public Records Requests
This bill would authorize an agency to charge a fee to recover the cost of furnishing a public record, including an electronic record, where the request is for a commercial purpose and not otherwise exempted. However, an agency would be prohibited from assessing the fee if the requestor is a member of news media, a nonprofit organization, an educational institution, or certain other persons and entities entitled to obtain the requested information or exempted by the bill.
SHB 1128: Injunctions and Time Limitations on Public Records Requests
This bill would authorize an agency to seek an injunction against public records requests if certain conditions are met. These conditions include harassing or retaliatory requests, requests that create an undue burden, safety threats arising from requests, or requests that would assist criminal activity. An agency would also be able to limit the number of hours it devotes to responding to public records requests, if the agency makes certain documents publicly available and meets other conditions.
HB 1203: Exempting Personal Information Relating to Children
This bill would add a new exemption to the Public Records Act for personal information contained in any file maintained by the Department of Early Learning for a child enrolled in a licensed child care.
SHB 1418/HB 1763: Hours of Availability for Smaller Local Agencies
No action was taken on HB 1763. However, SHB 1418 would allow public agencies that do not maintain office hours for a minimum of 30 hours per week to post directions about how to make public records requests. This bill would also establish the date of receipt of a public records request as the date of such smaller agency’s next regularly scheduled meeting and requires the agency to respond to a request at the next regularly scheduled meeting.
SB 5171/ HB 1299/ HB 1298: Sunshine Committee Recommendations
No action was taken on HB 1299. However, SB 5171 and HB 1298 would add language to the Public Records Act clarifying the exemption for sexual assault victim information and exempting information contained in a local or regionally maintained gang database. SB 5171 also repeals the exemption for data on closed medical malpractice claims that may reveal the identity of a claimant, health care provider, health care facility, insuring entity, or self-insurer.
This bill would implement certain recommendations of the Sunshine Committee including clarifications on the personal information exemption and public access to applications for some executive positions.
The following bills failed to make the cutoff and are considered “dead.” However, a bill may be resurrected if it finds its way onto another bill with a broad enough title (although unlikely).
HB 1197: Public Comment on Proposed Action
This bill would have required the governing body of a public agency to allow for public comment on any proposed action.
HB 1714: Recordings of Executive Sessions
This bill would have authorized governing bodies to record closed executive session meetings and exempted the recordings from disclosure under the Public Records Act. A court would be authorized, upon finding that a public agency intentionally violated the Open Public Meetings Act, to order recording of closed executive sessions for two years.
HB 1019: Identification of Public Records Requestors
This bill would have amended the Public Records Act to make records available for inspection and copying only to an identified person.
SB 5436/HB 1449: Specific Prosecution and Defense Documents
These bills would have provided an exemption to the Public Records Act for victim impact statements and other documents and materials provided by defendants or their attorneys during communications regarding plea agreements and sentencing recommendations.
SB 5170/HB 1297: More Sunshine Committee Recommendations
These bills would have clarified what information resulting from background checks of a guardian ad litem may and may not be disclosed to the parties in a parent-child termination action.
Arkansas FOIA: Soliciting Individual Board Approval Constitutes a Meeting, Providing Background Information Does Not
In contrast to Washington law, the open-meetings provision of the Arkansas Freedom of Information Act (FOIA) does not define “meetings” that are subject to the Act’s requirements. Here, the Arkansas Supreme Court concludes that submitting a draft ordinance and a memorandum in support of that ordinance does not constitute a meeting subject to the FOIA’s requirements.
In McCutchen v. City of Fort Smith, City Administrator Kelly circulated a draft ordinance expanding his hiring-firing authority, a memorandum supporting the ordinance, and other documents to five of seven members of the Fort Smith Board of Directors in advance of a Board study session. Plaintiff McCutchen sued the City, alleging that Kelly violated the open-meetings provision of the FOIA by engaging in a series of private one-on-one meetings with Board members.
Although some Board members expressed support (and others opposition) to the proposed ordinance, the Arkansas Supreme Court held that Kelly did not violate the FOIA because he did not solicit specific responses from Board members. Moreover, McCutchen failed to produce evidence that the proposed ordinance was discussed or debated prior to the study session or that Board members exchanged any correspondence about the memorandum.
The Court distinguished the prior case Harris v. City of Fort Smith, where a city administrator violated the FOIA by holding one-on-one meetings with Board members in order to obtain approval to acquire property at auction. The administrator sought secret approval, and later ratification by Board resolution, in order to avoid making public the city’s maximum bid prior to the auction. There, the administrator violated the FOIA because the individual contacts to seek Board approval constituted an informal meeting subject to the FOIA’s open-meetings provision. City Administrator Kelly did not seek similar pre-approval, here.
Arthur West, well known to those who follow open government issues in Washington State, had another of his lawsuits rebuffed by the Court of Appeals. In an unpublished decision, Division II rejected his Public Records Act and Open Public Meeting Act claims against the Washington Public Ports Association. The Court also declined to decide whether or not the Association is a public agency for purposes of the Public Records Act. While this case does not add much substantively to Washington's open government jurisprudence, it does serve as a reminder that detailed facts are a plaintiff's strongest ally in open government cases. The Court of Appeals was unwilling to let the OPMA or case go forward because Mr. West's allegations showed him to be a concerned citizen, but did not identify a specific injury. Similarly, Mr. West did not document a specific Public Records Act issue, so the Court of Appeals allowed the trial court's summary judgment in favor of the Ports Association to stand. Contrast this scenario to many recent Washington Public Records Act cases where the appellate courts have been quite harsh with public agencies that fail to meet their duty to provide access to citizens.
The Tacoma News Tribune recently raised questions about whether the Washington State Redistricting Commission violated the state's Open Public Meetings Act by carrying out its work behind closed doors and through "shuttle diplomacy" amongst its partisan members. A follow-up editorial today quoted one of the Commission's members about the unworkability of redistricting being carried out in public view: "If you wanted that discussion in public, we would never have gotten done. The nature of these types of communications don’t lend themselves to an audience.”
In an editorial on December 9, 2011, the Walla Walla Union-Bulletin commented as follows:
Dec. 09 -- The budget discussion between Sheriff John Turner and the three county commissioners got heated this week when it veered off course.
Instead of focusing on the specifics of the budget, the meeting became a debate over whether commissioners Gregg Loney, Greg Tompkins and Perry Dozier should meet individually with Turner and his command staff to discuss and develop strategic plans for the Sheriff's Office.
It is simply not the job of the county commissioners to help develop strategic plans for the Sheriff's Office. That is the sole responsibility of the county sheriff, who is directly elected by the people of Walla Walla County.
The Board of County Commissioners is a legislative body. The commissioners are elected to oversee the overall operation of the county, which includes establishing the budget.
The three commissioners, however, are not the sheriff's direct boss. The people are the sheriff's boss.
The expectation is that the sheriff oversees the Sheriff's Office and establishes polices and develops strategic plans. The sheriff makes a budget request to the commissioners, who then allocate funding based on those plans as well as other factors such as the needs of other county offices and how much money is available.
Holding private meetings on a regular basis between individual commissioners and the sheriff is unnecessary.
That's the case whether it is the sheriff or any of the other independently elected county officials. The auditor does-n't develop strategy with the commissioners on how to run an election nor does the coroner develop with commis-sioners policies regarding autopsies.
The three commissioners said they would be willing to discuss various issues with Turner in a public meeting that is recorded -- just like all commission meetings.
"That way we all hear the same thing and they are recorded for the public to listen to, and then I would be willing to do that. And I've told the sheriff that, too," Tompkins said.
Exactly. The people's business should always be done in public.
Turner, however, has concerns about meeting in public.
"You know that plan doesn't work because when it comes to tactics and how we deploy people (and) when we talk about the tremendous civil and safety liability issues to the office, that's not for the public," he said.
It was suggested by a commissioner that when sensitive topics come up the commissioners and sheriff could meet behind closed doors in an executive session with their attorney.
Absolutely not. We do not believe that would be legal under the state's Open Public Meetings Act. The law nar-rowly defines the subjects for which meetings can be closed, things such as personnel matters and pending litigation. Strategic plans for law enforcement do not apply.
Developing strategic plans is best done by the sheriff and his command staff. And after those plans are developed the commissioners -- in public -- provide oversight through the budget process.
Visit Walla Walla Union-Bulletin (Walla Walla, Wash.) at union-bulletin.com.
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.
A Federal District Court in Connecticut recently ruled that the Middletown Common Council did not violate the First Amendment when it passed a resolution limiting speech during televised Council meetings to items on the agenda. Smith v. City of Middletown, 2011 WL 3859738 (D.Conn. 2011).
Prior to October 2006, the Council reserved the beginning of Council meetings for the public to speak on topics not on the meeting agenda. This segment of the meeting devoted to non-agenda items was televised. In October 2006, the Council unanimously voted to change the Council meeting format to move the segment on non-agenda items to the end of the Council meeting and to not televise that segment. Members of the public were still allowed to address the Council regarding items on the agenda during the regular Council meeting, which continued to be televised.
In 2009 the Council voted again to alter the format of the Council meetings by terminating the segment on non-agenda items. In its place, the Council began holding monthly meetings at different locations in the community where member of the public could discuss issues not included on the Council meeting agenda.
Following the 2009 format change, Lee Smith and Donna Gagnon-Smith sued the Council claiming that the rule changes were intended to limit their free speech rights under the First Amendment of the Constitution. The Smiths regularly spoke before the Council on non-agenda items and even one Council member admitted that one of the reasons for changing the format of the Council meetings was to “turn off the cameras” for “a couple” that spoke before the Council “all the time.”
The Federal District Court of Connecticut reviewed the actions of the Council under the rules governing limited public forums. The Ninth Circuit has similarly held that city council meetings are limited public forums. White v. City of Norwalk, 900 F.2d 1421, 1425 (9th Cir. 1990). In a limited public forum, a governmental entity may impose restrictions on speech that are reasonable and viewpoint neutral. Applying this test, the Connecticut court held that the Council was entitled to restrict public comments at Council meetings to topics on the agenda, because an individual’s viewpoint does not affect whether they are permitted to speak. The court also held that the fact that the Council may have been motivated to institute the format change to restrict the Smiths’ speech is irrelevant, because the rule actually passed by the Council was viewpoint neutral. See Hill v. Colorado, 530 U.S. 703 (2000). Therefore, the court held that the Smiths had not suffered a deprivation of their First Amendment right to freedom of speech and dismissed the action.
In 1959, the Washington legislature recognized the Washington Association of County Officials (WACO) as a statewide “coordinating agency” of county officials. In Washington State, many counties have independently elected assessors, auditors, clerks, coroners, sheriffs, treasurers and prosecuting attorneys. These positions are separate from the separately elected county commissioners or county councilmembers and executive. WACO is also distinct from the Washington State Association of Counties, Washington (WSAC), Public Ports Association and similar organizations. In 2008, a claim was brought against WACO claiming that it was subject to the Washington Open Public Meetings Act or “OPMA.” OPMA had been adopted in 1971 as part of a package of open government provisions, including campaign finance and public record disclosure.
The Court of Appeals in 1999 determined that both WACO and WSAC were subject to the public records portions of the 1971 initiative. Telford v. Thurston County Board of Commissioners, 95 Wn. App. 149, 974 P.2d 886 (1999). Questions remain, however, regarding the application of that law to the Public Records Act and OPMA. See Attorney General Opinion 2002 No. 2, finding the Telford analysis must be applied on a factual basis to determine the specific application of the components of the Public Disclosure Act to any particular entity, such as WSAC. The Telford court considered the following four factors to determine the application of the campaign finance provisions to an entity: 1) the entity’s governmental function; 2) the entity’s government funding; 3) governmental control over the entity; and, 4) the entity’s origin.
On June 1, 2011, the Court of Appeals in West v. WSAC, Court of Appeals No. 39366-2, applied those same factors to determine that WACO was also subject to OPMA. The court recognized that the OPMA portion of the Public Disclosure Act does not define “state agency.” This differs from the campaign finance and public records provisions of the public disclosure laws. “Nevertheless, because we construe the OPMA liberally to reach its intended purpose, we hold that for purposes of the OPMA, a “state agency” may be an association or organization created by or pursuant to statute which serves a statewide public function.” The court relied on the legislature’s formal recognition of WACO in 1959 – at WACO’s own request – in support of its determination that WACO was a public agency subject to the OPMA. Courts in other jurisdictions, however, have reached different results. See our March 31, 2011 blog posting.
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.
Rutgers is the State University of New Jersey and subject to that state’s Open Public Meetings Act (OPMA). A recent decision of the intermediate appellate court of New Jersey found that Rutgers had violated the New Jersey OPMA in the course of various executive session proceedings.
Like many public bodies subject to an OPMA, the Rutgers Board of Governors would conduct executive sessions at various times, including shortly after the commencement of a meeting. Applying the unique provisions of the New Jersey OPMA, the court concluded that the
“variable time for the resumption of the open session, in combination with the brief 5-minute open session at the beginning of the meeting, creates such uncertainty about when the public session will actually resume as to impermissibility erode the reliability of the times specified in the public notices of the Board’s meeting.”
As a result, the court ordered that the Rutgers Board of Governors must complete its open session before commencing any closed session. This rule is not likely to apply in Washington where the Washington State OPMA specifically requires that before entering an executive session, the agency must identify the period of time for the executive session. RCW 42.30.110 (2). This is to provide the public with knowledge of when the public will regain access to the public portion of the agency’s meeting. Accordingly, the public will know what time the public session is to resume, and any public session that began before that announced time would be in violation of Washington’s OPMA.
Further, the Rutgers court held that the University Board must do more than list the exceptions that would allow a closed session (e.g., attorney-client meeting). The court recognized that the Board must only disclose “the general nature of the subject to be discussed.” But, simply listing the exception without describing the subject matter was inadequate (e.g., when discussing legal dispute over a contract, the Board should announce the contract that is subject to discussion). The Rutgers ruling is not dissimilar to the recent Washington Supreme Court decision under the Public Records Act that requires an identification of claimed exempt documents not only by the basis for the exception to disclosure, but also an explanation of why the exception applies. See September 17, 2010 posting on this site, “Washington Supreme Court issues comprehensive public records act decision.”
Meetings of Committees Attended by Other Members May Become a Meeting of the Full City Council (If Quorum) and Require Advance Notice as a Full Council Meeting
The Washington Attorney General concluded that committee meetings of a city council may require additional notice when enough other council members attend the committee meeting to make a quorum of the full council. Interpreting the Open Public Meetings Act (OPMA), the Attorney General Opinion No. 9 (AGO 2010 No. 9, November 30, 2010), the Attorney General concluded:
The Open Public Meetings Act requires that notice be properly given of a meeting of the governing body. This requirement is not satisfied by notice given for a meeting of a standing committee of a city council as a governing body, where a quorum of members of the city council attend the meeting and take action as defined in the act, such that a meeting of the city council as a governing body takes place.
A reference to the Attorney General Opinion follows: http://www.atg.wa.gov/AGOOpinions/Opinion.aspx?section=archive&id=26916
Particularly important to note is that discussion by a committee may be an “action” under the OPMA definitions. As a result, a better practice for an agency that uses committees (whose meetings are subject to the Open Public Meetings Act) is to include as part of meeting notice (in adopted code, resolution or otherwise) that the committee meeting is also a meeting of the legislative body (e.g., city council). An additional report on the Opinion is at http://www.pnwlocalnews.com/whidbey/wnt/news/111228679.html.
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.
Publicola is reporting that members of the Bellevue City Council are accusing the majority of violating the Open Public Meetings Act by negotiating the text of a letter to Sound Transit without holding an open public meeting. The council members allege that the letter regarding the future location of a light rail line through Bellevue was drafted via phone and email. The Open Public Meetings Act, Chapter 42.30 RCW, requires that all meetings of the governing body of a public agency shall be open and public. A meeting occurs when the majority of the governing body or any committee acting for the governing body transact any official business of the public agency, including but not limited to receipt of public testimony, deliberations, discussions, considerations, reviews, evaluations, and final actions. A court may determine that a meeting has occurred if a majority transact business via a "serial" or "rolling" meeting in which phone calls or email are forwarded among the group until a consensus is reached.
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.”
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:
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
"Monroe's business gets done in secret" Everett Herald
Here is the lasted post on Tim Ford's Unredacted Blog "May a council member attend a public meeting by telephone?"
Therefore, I conclude that a governing body may "attend" a meeting by teleconference so long as there is compliance with the other requirements of the OPMA. Attendance does not require the contemporaneous physical presence of the members of the governing body. While it may be good policy to require such physical attendance, the OPMA must be construed broadly to fulfill its purpose.
I agree with Mr. Ford's conclusion and recommend that you read the full article.
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.
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.
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.
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).
Foster Pepper assists local governments with open government compliance. As part of our work, we train public officers and employees from Local Governments on Washington’s open government laws.
In a recent editorial in the Seattle Times, Ramsey Ramerman, the chair of Foster Pepper's Public Disclosure team and one of the lawyers most active in this practice, explained his views on these laws:
I believe "trust is the coin of the realm." Only with the public's trust can those who serve in government use government to help the public. Open government mints trust. With this coin, government serves.
Washington's local governments mint trust with the state's open government laws — the Public Records Act, the Open Public Meetings Act, the Public Disclosure Act (campaign laws) and state and local ethics laws. These laws are ranked among the best in the nation. And Washington's Public Records Act is one of the country's most "user-friendly" laws.
Foster Pepper attorneys, including Ramsey Ramerman and Steve DiJulio, have trained thousands of elected officials and other public officers and employees on the Public Records Act. We have also advised nearly every type of local government in this state on open government issues. From this experience, we have witnessed Washington’s open government laws at work. In this blog, Foster Pepper will use that experience to track developments in open government law, policy and application.
The voices and perspectives of the public records officer, general counsel and other public employees are rarely heard in the press’s coverage of open government issues. In Foster Pepper's Local Open Government Blog, we will analyze these issues, taking into account this missing voice, as well as other perspectives.
Every year there are always numerous proposals for amending our open government laws. Below, Foster Pepper lists the most significant bills introduced in this session affecting the Public Records Act and Open Public Meetings Act. We have included links to the bill summary pages and a short description about the topic of the bill — these are NOT the titles of the bills, only a descriptive summary. If you see a bill you think we should be watching, please let us know.
Significant and/or likely to make it out of committee
These are bills that may be voted out of committee or are significant enough that they deserve extra attention. The first legislative cut off is February 25.
HB 1017/SB 5339. Study Open Government agency
HB 1181/SB 5130. Enjoining prisoners
HB 1471. Release of collective bargaining records
HB 1552. Additional requirements for open meetings
HB 1676. Executive Session, model rules and mandatory training for OPMA
HB 1784. Granting PDC enforcement authority over PRA and OPMA
SB 5119/HB 1497. Eliminate Sunshine Committee
SB 5295. Unanimous Sunshine Committee recommendations
These are bills that do not appear likely to make it out of committee or will not make significant changes to the law.
HB 1105. Work Product
HB 1106. Agency Injunctions
HB 1107. Insurance for PRA disputes
HB 1316. Enjoining harassing requesters
HB 1317. New exemption of personnel records of criminal justice employees
SB 5249. Unpaid costs
SB 5250. Increase amount agencies can charge for copies
SB 5251. Recover full copying costs
SB 5293. In-camera review of exempt records
SB 5294. Non-unanimous Sunshine Committee recommendations