More information about the Task Force can be obtained on the Attorney General’s web page and on the Washington State Auditors Office web page.

A 'Tweet' OPMA violation?

Public perception counts, technical compliance may not be sufficient. Web 2.0 creates risks and challenges.

"'Tweets' bring possible illegal meeting to light. 
Twitter Post reveal a gathering of Mukilteo
City Council members after their official meeting."

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:

City Council Handbook Wiki

Gov Social Media Wiki

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 

"D'Amico wins open records suit against Jefferson County for Commissioner Sullivan's phone calls"  Port Townsend Leader

"Records show WWU hushing of information, criticism of student newspaper article" Bellingham Herald

"Monroe's business gets done in secret"  Everett Herald

Tim's conclusion: 

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. 

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.  

Original Post

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. 

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.

California:

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. 

Maryland:

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.

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).

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. 

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

Other bills

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