A prisoner at the Washington State Coyote Ridge Corrections Center requested a document that the state could not find. The prisoner sued. A Washington appellate court on August 18, 2016 ruled that the state’s Public Records Act (PRA) did not subject a government to liability for lost records - or, even impose a burden to prove when the document was lost. Jones v. Dep’t of Corr. The court recognized that the PRA does not allow an agency to destroy records subject to a pending request. But, the court acknowledged that an “agency is not required to produce a document that does not exist.” There was no evidence that the Department unlawfully destroyed the requested form. And, the court pointed to federal court rulings finding a “government agency in compliance with the freedom of information act when it performed a reasonable search despite evidence that some requested records were accidently lost.” While an unpublished opinion, the case is useful in recognizing that the PRA “is not intended to penalize inadvertent loss, a phenomenon endemic to a large organization.”
Agency's Failure to Engage in "Any Serious Independent Analysis" of Validity of Exemption Status Supports a Finding of Bad Faith Under the PRA
In Adams v. Washington State Department of Corrections, Division II of the Court of Appeals held that for purposes of penalty calculation for agencies that do not comply with PRA requests under RCW 42.56.565(1), an agency will be punished for “bad faith” if it fails to engage “in any serious independent analysis of the exempt status of documents.” The Court of Appeals affirmed the findings of the trial court that found that the DOC’s justification for withholding a prisoner’s state and federal rap sheets was insufficient, and that the DOC engaged in “bad faith” under the PRA by failing to.
In this case, Adams, a prisoner, submitted a public records request to the DOC for his inmate central file—a collection of documents that contained, among other items, an offender’s criminal history obtained from both state and federal authorities, otherwise known as “rap sheets.” The DOC refused to produce portions of the rap sheets requested, some of which were obtained from ACCESS, a federal database, arguing that the records were exempt from disclosure under RCW 4.56.070(1) and federal laws. The DOC also argued that non-conviction criminal history information was for law enforcement use only, and therefore exempted from disclosure.
Only a few days before Adams filed his complaint alleging PRA violations, the Spokane County Superior Court held in Chester v. Department of Corrections that similar information, such as Washington State and FBI criminal rap sheets, were not exempt from disclosure under the PRA. Ten months later, the DOC filed a motion for show cause hearing against Adams, noting that it still intended to withhold 21 pages of Adams’s Washington and FBI rap sheets. The DOC claimed that disclosure would violate ACCESS use agreements. At the time, the DOC’s only support for this argument was the stated position of the Washington State Patrol and the FBI.
The trial court found the DOC’s justification insufficient to withhold disclosure. Upon questioning, the DOC could not point to any evidence that the ACCESS use agreement prohibited disclosure of the rap sheet information. The trial court also noted that the DOC had engaged in only a cursory investigation of the merits of its exemption justification, limiting its investigation to only a few short e-mail exchanges with state patrol and the FBI. The trial court ordered the disclosure of the rap sheet information and assessed penalties on the DOC for withholding the records in bad faith.
The DOC appealed, arguing that, standing alone, reliance on an invalid basis for nondisclosure was not sufficient for finding bad faith, as long as the basis was not “farfetched.” In support of this contention, the DOC argued that federal law prohibited them from disclosing certain information obtained from a federal criminal database (III System Information) to the individual who is the subject of that information. The court disagreed, noting a long line of cases that held that an individual is entitled to such information under the relevant federal authorities. The court also observed that the DOC both cited the wrong federal statues and misread the correct ones in a manner that was “inconsistent with longstanding federal law authorizing inmate access” to the inmate’s FBI criminal history information. The court found that the DOC justification or withholding the state criminal history information, WAC 446-20-090, was similarly indefensible, as this regulation concerned a right that was only supplementary to those contained in the PRA.
Although the court held that the burden was still on Adams to prove bad faith under RCW 42.56.565(1), the court affirmed the trial court’s finding that the DOC improperly withheld Adams’s criminal history information in bad faith by continuing to withhold Adams's records for more than 10 months after the analogous Chester decision was entered, and for failing to conduct its own independent verification of the validity of its exemption claims. The court awarded Adams his costs on appeal.
On August 27, 2015, the Washington Supreme Court affirmed lower courts in holding “that text messages sent and received by a public employee in the employee's official capacity are public records of the employer, even if the employee uses a private cell phone.” Nissen v. Pierce County
The case arose when a sheriff’s detective sent requests to Pierce County for records related to the County Prosecutor. One request was for cellular telephone records for the Prosecutor’s personal phone. There was no dispute that the Prosecutor personally bought the phone, pays for its monthly service, and sometimes uses it in the course of his job.
The Court’s unanimous decision required the Prosecutor to obtain a transcript of the content of all the text messages at issue, review them, and produce any that are public records to the County. “The County must then review those messages just as it would any other public record-and apply any applicable exemptions, redact information if necessary, and produce the records and any exemption log.”
The Court provided public officials a method to submit an affidavit to separate personal from public messages:
“Where an employee withholds personal records from the employer, he or she must submit an affidavit with facts sufficient to show the information is not a "public record" under the PRA. So long as the affidavits give the requester and the trial court a sufficient factual basis to determine that withheld material is indeed nonresponsive, the agency has performed an adequate search under the PRA. When done in good faith, this procedure allows an agency to fulfill its responsibility to search for and disclose public records without unnecessarily treading on the constitutional rights of its employees.”
The Nissen case reemphasizes the need for public officer and employee vigilance in managing information on personal communication devices. While convenient, the use of private devices for official business creates substantial expense to a public agency in responding to requests for public records.
The Washington Constitution, Article VI, Section 6 states: “The Legislature shall provide for such method of voting as will secure to every elector absolute secrecy in preparing and depositing his ballot.” This provision was central to a Washington Court of Appeals decision on July 13, 2015, rejecting a public records act request for “copies of electronic or digital image files” of ballots. White v. Skagit County and Island County, ___ Wn. App. ___, No. 72028-7 (Jul. 13, 2015).
Following the 2013 Washington general election, Timothy White sent public records requests for all ballots to all counties in the state. The counties denied the requests and White sued. The Washington Public Records Act does not expressly exempt ballots from disclosure. It does, however, include an “other statute” provision that incorporates exemptions to disclosure that are based on laws outside of the Act. The court applied the “other statute” exemption in light of the comprehensive statutory scheme restricting access to ballots. The court concluded that the exemption “is necessary to protect the ‘vital government function’ of secret ballot elections.” Two weeks earlier, a different division of the Court of Appeals reached the same conclusion in White v. Clark County, ___ Wn. App. ___, No. 46081-5-2 (June 30, 2015).
Of further note, the court rejected White’s claim that Skagit County should be penalized for failing to respond to his request for “the original metadata and Properties of the electronic or digital files requested.” The court concluded that it was not unreasonable for the county to ask for an explanation of the electronic files requested. The Court of Appeals agreed with the trial court that “White’s failure to respond to the request for clarification excused the County from trying to explain more specifically why the ‘metadata and Properties’ were exempt.”
No Privacy Interest In Employee's Identity Connected To Existence Of Investigation When Allegations Are Not Described
In Predisik v. Spokane School District No. 81, the Washington Supreme Court holds by a 5 justice majority that disclosure of employer investigation records that reveal an employee’s identity do not implicate employee privacy rights under the Public Records Act (PRA) when the records do not describe the allegations being investigated. The court therefore reversed the Court of Appeals below, ordered disclosure of the records without redaction, and denied the employees’ requests for injunctive relief under the PRA.
Two media outlets submitted public records requests to Spokane Public Schools for documents concerning employees on administrative leave. In response, the District produced three records: an “administrative leave letter” placing an employee on leave and banning the employee from district property and from talking with students about the matter; and two spreadsheets that documented the amount of leave pay accumulated by the employee named in the leave letter and a second employee also on leave. None of the documents detailed the allegations’ contents.
Under the employee personal information exemption, only an employee’s personal information that implicates privacy interests (i.e., matters concerning the private life) may be withheld under the PRA, and only when the information’s release would violate the employee’s right to privacy. Here, the Court held that the existence of a public employer’s investigation is not a “private” matter, but merely an administrative process arising from the employee’s public employment. The existence of the investigation “is not akin to a family quarrel or a humiliating illness, nor does it touch on the employee’s life at home.” The investigation itself is therefore not a “closely held private matter that gives rise to a privacy right under the PRA.” Whether the allegations are later substantiated, or not, “makes no difference … because the records do not describe them.”
The 4 dissenting justices would have held that employees have a privacy interest in their identities when connected to the existence of an employer investigation into not yet substantiated allegations of misconduct, and that disclosure would violate their rights to privacy. The employees’ identities remained a private matter because unsubstantiated allegations do not bear on employee performance. The employees’ identities should have therefore been redacted from the records prior to disclosure.
On March 3, 2015, the Washington Supreme Court granted two petitions to review Nissen v. Pierce County, 183 Wn. App. 581, 333 P.3d 577 (2014). In Nissen, the Washington Court of Appeals applied the Washington Public Records Act and held that text messages sent and received from a government employee’s (the elected prosecuting attorney’s) private cell phone are public records if they relate to government business, as are portions of call logs that track a government employee’s private, non-agency cell phone. Read more about the decision here. Pierce County and the Pierce County Prosecutor separately sought review of the appellate court ruling. The Supreme Court granted both petitions for review.
On March 2, 2015, The New York Times reported that Hilary Clinton, during her tenure as Secretary of State, may have violated federal regulations by using her personal e-mail to conduct government business. The report says that Clinton aides took no measures to preserve the personal emails on the department servers, which is required by the Federal Records Act.
City Investigation of Law Enforcement Whistleblower Allegations Subject to Disclosure; No Redaction of Witness Identification
In early 2011, City of Fife police officers submitted a whistleblower complaint to the City Manager. The complaint covered a range of topics including discrimination, misappropriation of public funds and improper workplace relationships. The City retained an outside entity to investigate the allegations. The City determined the investigation was thorough and the allegations were either not sustained or unfounded. One of the complaining officers submitted a public records request for the report, audio recordings and transcripts of interviews, and other records relating to the whistleblower complaint and investigation. The City began producing installments in May 2012, but redacted names and identifying information of witnesses, the accused officers, and complaining parties. The City also commenced an action for declaratory and injunctive relief regarding its obligations to produce records.
On February 24, 2015, the Washington State Court of Appeals determined that while the City’s records were “specific investigative records,” and might qualify for a public records exemption, that was only a part of the test. City of Fife v. Hicks, (Division II, No. 45450-5). The Court held that the City was unable to demonstrate non-disclosure was essential to effective law enforcement. The Court pointed to earlier precedent that expressly rejected the concept that a “generalized fear that disclosure of witness names will chill cooperation within investigations,” citing Sargent v. Seattle Police Department, 179 Wn.2d 376, 395 (2013) (generalized fear, alone, insufficient to justify non-disclosure). In the Fife case, the Court also rejected the City’s claim that disclosure of witnesses would violate a witness’s right to privacy. This was particularly the case here where dealing with public employees whose conduct is a matter of greater interest to the public. Additionally, the City could point to no foundation that the requester’s own name could be redacted from a record requested by that person. While this case may not present substantially new information for agencies complying with the Washington Public Records Act, it does emphasize the need to manage investigations in a manner attentive to future Public Records Act responsibilities.
In Bichindaritz v. University of Washington, Division One of the Court of Appeals reversed a $723,290.50 penalty and $102,958.03 attorney fee award for violations of the Public Records Act by the University of Washington. The trial court had concluded that the University’s production of documents to the requestor, a former employee who had sued the University, was not in good faith and that the University waited too long to produce records it had already assembled but had not yet reviewed. The University appealed.
In particular, the University challenged the trial court’s conclusion that as soon as the University had assembled the responsive documents, they were ready to be produced to the requestor. The Court of Appeals agreed with the University, explaining that the Public Records Act requires that responses to records requests be made “promptly,” but also expressly recognizes that an agency may need additional time to determine whether any part of the information requested is exempt. See RCW 42.56.520. As the court summarized:
By the time Bichindaritz closed her 2009 request in February 2011, the University had assembled about 25,000 pages but had reviewed only about half of them for exemptions. It was unreasonable to expect the University to produce the remaining 12,000 pages the same day Bichindaritz reopened her request simply because it had already assembled those documents.
Opinion at 7 (emphasis in original).
The Court of Appeals also rejected the requestor’s argument that the University’s violation could be sustained on the basis that the University “repeatedly missed production deadlines.” The court observed that the Public Records Act demands only that an agency provide reasonable estimates for production—not necessarily that an agency comply with its own self-imposed deadlines. “The question is whether the agency ‘was acting diligently in responding to the request in a reasonable and thorough manner.’” Opinion at 9 (citing the recent decision in Hobbs v. State). Here, the requestor did not argue – and the record did not indicate – that the University was less than diligent in completing its review and redaction of the final records for production. Concluding that the University had not violated the Public Records Act, the Court of Appeals reversed the trial court’s imposition of penalties and attorney fees.
Under Washington’s Public Record Act, an action challenging an agency’s refusal of records must be filed within one year of the agency’s claim of exemption. RCW 42.56.550(6). The Supreme Court holds that an insufficient exemption log will not trigger the running of the statute of limitations.
Rental Housing Association of Puget Sound v. City of Des Moines, 165 Wn.2d 525 (2009 A “log need not be elaborate but should allow a requestor to make a threshold determination of whether the agency has properly invoked the exemption.” WAC 44-14-04004(4)(b)(ii). ). See also December 15, 2014 posting entitled "Washington Supreme Court Orders Attorney Fees And Costs To Requester For Agency's Violation Of PRA's 'Brief Explanation' Requirement."
On February 9, 2015, the Washington Court of Appeals considered a PRA claim filed against the Washington Criminal Justice Training Commission (WSCJTC). John F. Klinkert v. Wa State Crm Justice Training Commission. WSCJTC responded to a PRA request with a one page log for two records.
One of the records was a 713-page investigative file. WSCJTC claimed the entire file exempt under RCW 43.101.400(1) as records “that may be used by WSCJTC in an investigation of [a deputy sheriff’s] certification.” After the WSCJTC responded to the PRA request, there were further exchanges between Klinkert and WSCJTC, but no change in position. Later, Klinkert filed his action more than one year after the initial rejection of his request. The Court upheld the application of the one year statute of limitation, finding that there was sufficient information in the WSCJTC exemption log for Klinkert to understand the basis for the claim of exemption. His claim was time barred by the statute and properly dismissed.
As part of its 2014 Statement of Legislative Intent (SLI), the Seattle City Council requested that the City Clerk, the City Attorney’s Office and various executive departments form a PDR [Public Disclosure request] Task Force to: (i) identify shortcomings in the City’s current approach to fulfilling PDRs; and (ii) make recommendations regarding appropriate City-wide policies. See SLI 13-2-A-1. The Task Force briefing outline for the City Council (January 5, 2015) is available here.
Included in the preliminary recommendations are:
- Create a Citywide Public Records Act (CPRA) program to centrally manage the public disclosure function for complex requests.
- Strengthen support for Public Disclosure Officers.
- Develop centralized PDR Portal & tracking system that allows public access.
- Expand the PRA training curriculum.
- Measure customer satisfaction.
Washington Supreme Court Orders Attorney Fees And Costs To Requester For Agency's Violation Of PRA's "Brief Explanation" Requirement
The Public Records Act (PRA) requires that when an agency withholds or redacts records, its response “shall include a statement of the specific exemption authorizing the withholding of the record (or part) and a brief explanation of how the exemption applies to the record withheld.” RCW 42.56.210(3). In a 5-4 decision, the Washington Supreme Court held in City of Lakewood v. Koenig that an agency’s violation of this requirement entitles the requester to attorney fees and costs, regardless of whether the records were properly withheld.
In this case, David Koenig had requested records from the City of Lakewood relating to certain police officer incidents. In its response, the city redacted, among other things, driver’s license numbers from the records, citing to various statutory provisions without additional explanation. In a majority opinion written by Justice Steven González, the court found that the city’s response violated the PRA because the city either failed to cite a specific exemption or failed to explain how the particular statute applied to the redacted driver’s license numbers in the specific records produced. As a result, “the burden was shifted to the requester to sift through the statutes cited by the city and parse out possible exemption claims.” Opinion at 7-8. Because the PRA provides that costs and reasonable attorney fees shall be awarded to a requester for vindicating “the right to receive a response,” the court held that Koenig was entitled to his attorney fees and costs, including those on appeal. Id. at 10-12.
In explaining its decision, the court observed that the level of detail an agency needs to provide will depend on both the nature of the exemption and the nature of the document or information. For example, if it is clear on the face of a record what type of information has been redacted and that this type of information is categorically exempt, citing to a specific statutory provision may be sufficient. But for other exemptions, including the “other” statute exemptions that the city cited, “additional explanation is necessary to determine whether the exemption is properly invoked.” Id. at 8.
In a dissenting opinion joined by three other justices, Chief Justice Barbara Madsen asserted that the majority’s decision imposed an additional burden on agencies to provide enough explanation to prove its claimed exemptions are correct, which the PRA does not require. The dissent distinguished the facts in Sanders v. State, 169 Wn.2d 827 (2010), observing that, here, “the city explained what information it actually withheld—driver’s license numbers—and it explained why—the cited statutes.” Dissenting Opinion at 2. While the dissent acknowledged that attorney fees may be warranted if an agency fails to identify a record or give its reason for withholding, the dissent would have held that attorney fees are not independently warranted if the agency has identified the record and given its reason for redacting or withholding the record.
On November 25, 2014, the Everett [WA] Herald reported that a man has requested records from the Snohomish County Sheriff’s Office dating to July 4, 1776. Perhaps the requestor was not much of a student of history, as Snohomish County was created by the Washington Territorial Legislature on January 14, 1861 (out of Island County). Click here for the story.
Unfortunately, the Washington Public Record Act (PRA) does not provide ready relief to public agencies facing such absurd requests. Only if the requester is an inmate is there opportunity for relief. See RCW 42.56.565 authorizing injunctions to prohibit requests “made to harass or intimidate the agency or its employees.”
Abandoned Claims. In West v. Gregoire, Division II of the Court of Appeals held that a PRA requestor who moves for a show cause order under RCW 42.56.550(1) abandons any claims he or she does not either (1) address in briefing, (2) mention in oral argument, or (3) otherwise specifically preserve for judicial review. Arthur West submitted a public records request to Governor Gregoire’s office. After providing West an initial five‑day letter, the Governor’s office did not further communicate for several months. And when it did, it asserted executive privilege (which was later upheld in Freedom Foundation v. Gregoire). West sued, claiming that executive privilege should not be recognized in Washington.
Some months later, West brought a show cause motion, but failed to mention in the motion or at oral argument his other PRA claims (notably, his claim that the Governor’s initial delay in production was unreasonable). Citing the detailed show cause procedures under RCW 42.56.550(1) and the public policies in favor of judicial economy and against piecemeal litigation, the court held that a .550(1) show cause hearing can function as a PRA claimant’s trial. Any PRA issue not mentioned or otherwise expressly preserved in a .550(1) show cause motion is abandoned, just like any civil claimant’s allegation not mentioned in the pleadings, not raised in response to a summary judgment motion, or unsupported at trial, is deemed abandoned.
A PRA claimant does not have to proceed by a .550(1) show cause motion, however, and can instead proceed to trial under the Civil Rules. But if the party does file a show cause motion, it must either assert every PRA issue on that motion or otherwise preserve the issue expressly. If not, the issue is abandoned.
False Starts. In Hobbs v. Washington State Auditor’s Office, also before Division II, the Court of Appeals held that a records requestor may initiate a lawsuit under the PRA only after it reasonably appears that the agency will not provide records responsive to the request. Here, the requestor sought “a large amount of technical information” related to an Auditor’s whistleblower investigation. The Auditor’s five‑day letter indicated that the office would provide records in installments. Two days after the Auditor provided the first installment, the requestor sued for alleged PRA violations. In the meantime, the Auditor’s office continued to search for and produce responsive records in rolling installments, including by correcting errors in its initial productions. Eventually, the Auditor’s office produced all responsive documents and cured all alleged violations.
Because the suit was filed during an open request that was eventually fulfilled in compliance with the PRA, the Court held that the Auditor’s office did not improperly withhold records. The Court also held that an agency does not violate the PRA if it makes every reasonable effort to comply with a PRA request and also fully cures alleged PRA violations while the request remains open. Accordingly, the Auditor’s office did not violate the PRA by improperly disclosing certain documents in its initial installments because it later corrected those errors before closing out the request.
In its final notable holding, the Court also made clear that the PRA does not require an agency to provide a reasonable estimate of the time it will take to fully respond to a request. Instead, if an agency notifies the requestor that it will provide records on an installment basis, it need only provide in its five‑day response letter the agency’s reasonable estimate of the time it will take to produce the first installment.
Case Law Update: "fullest assistance," redactions for effective law enforcement, disclosure of non-agency phone logs
The Washington Court of Appeals issued three notable Public Records Act decisions in the past few days. In Andrews v. Washington State Patrol, Division III held that an agency that fails to comply with self‑imposed disclosure deadlines does not violate the PRA if the agency acts diligently to produce the requested records. The specific records request was complex, seeking audio recordings of third‑party telephone conversations protected by attorney‑client privilege. In order to preserve confidentiality, the State Patrol developed a method to identify responsive records from over six months of recordings without actually listening to the recorded conversations. In the process, the State Patrol missed self‑imposed disclosure deadline estimates without notifying the requestor that it needed additional time to compile the records. Facing 1,000 additional public records requests at the time, the Patrol ultimately disclosed the records in less than 90 days. The Court held that the PRA’s requirement that agencies provide a “reasonable” estimated response date is not a requirement for an “exact” estimate and that the Patrol’s failure to meet its self‑imposed deadlines or to notify the requestor that additional time was needed did not violate the PRA’s “fullest assistance” provision.
In Haines‑Marchel v. Department of Corrections, the requestor sought internal investigation documents from the Clallam Bay Corrections Center. Relying on those documents, prison officials placed an inmate on “dry cell watch” in order to monitor the inmate for suspected contraband. The documents detailed allegations by three separate named inmate informants. Citing an exemption for sensitive information contained in law enforcement records, RCW 42.56.240(1), the Department released the documents but redacted the informants’ names and identifying numbers, the details of their allegations, and all information about their reliability as informants. Division II of the Court of Appeals agreed with these redactions, holding that releasing this investigative record information would undermine effective law enforcement at correction centers. Informants identified in the documents could be subject to retaliation and future informants would be “chilled” against providing information to Department officials. Similarly, the Department properly redacted pre‑printed material in the documents because those materials detailed the Department’s methods of investigation. Releasing this intelligence information would aid inmates in crafting and disguising false or deceptive accusations. However, the Court also held that other information was improperly redacted. The accused inmate’s name and assigned number, the specific rule he allegedly violated, and the investigating officer’s signature in the documents were not similarly exempt.
Last week in Nissen v. Pierce County, Division II held that text messages sent and received from a government employee’s private cell phone are public records if they relate to government business. Similarly, portions of call logs that track a government employee’s private, non‑agency cell phone could be public records for those calls that relate to government business. The more difficult question was whether the agency “prepared, owned, used or retained” the phone logs. Unlike the text messages, which were prepared and used by the employee as a government official, the cell phone logs were created by a private cellular provider and delivered to the employee in his private capacity. Accordingly, the call logs might not be “used” or “retained” by the agency even though the phone itself was used for government purposes. The Court remanded for the trial court to determine this question after developing the record. Arguably, the Court avoided a fundamental issue that could have been resolved as a matter of law: “we do not reach the question of whether [the employee’s] personal cellular phone call logs became ‘public records’ when he delivered them to the prosecutor’s office for the agency to redact.”
In early 2012, The Spokesman-Review requested records from the Riverside School District relating to Allen Martin. Mr. Martin, when a teacher at the District, engaged in sexual conduct with a consenting adult in Martin’s classroom. As a result, the District did not renew his teacher’s contract. Mr. Martin filed a lawsuit to prevent the District’s disclosure in response to the Public Records Act request. On January 30, 2014, the Court of Appeals issued its Opinion upholding the disclosure of the District’s records. On March 18, 2014, the Court ordered that its decision be published.
In Martin v. Riverside School District, the Court applied the recognized standard from Bellevue John Does 1-11 v. Bellevue Sch. Dist. No. 405, 164 Wn.2d 199 (2008): “[W]hen a complaint regarding misconduct during the course of public employment is substantiated or results in some sort of discipline, an employee does not have a right to privacy in the complaint.” Martin contended that his relationship with a consenting adult was a matter concerning his private life and did not relate to public duties with the District. The court disagreed. Martin’s conduct was an inappropriate use of school facilities. The public had a legitimate interest in the disclosure of Martin’s identity and the District’s records relating to Martin’s conduct. The right to privacy applies when a complaint involves “unsubstantiated or false allegations” because such allegations concern matters involving private lives of public employees. Here, the allegations were substantiated and Martin had no right to privacy in that information.
Anti-SLAPP Statute Held Inapplicable to PRA Injunction Actions that Do Not Primarily Seek to Limit Protected Activities
In a much‑anticipated Public Records Act case, the Washington Court of Appeals, Division I, held in Egan v. City of Seattle that PRA requests do not constitute constitutionally protected speech subject to the protections of the state’s anti‑SLAPP statute.
James Egan submitted a Public Records Act request for certain internal investigation records, including 36 “dash‑cam” videos, from the Seattle Police Department. The City of Seattle withheld 35 of those videos, claiming that a specific provision of the state’s privacy statute (RCW 9.73.090(1)(c)) prohibited the City from releasing the videos until final disposition of a pending lawsuit arising from the recorded events.
Egan disputed that the exemption applied and threatened to sue. Under the PRA’s injunction statute, RCW 42.56.540, the City moved to enjoin release of the videos and for declaratory judgment that the records were exempt from disclosure. Egan then filed a motion to strike under Washington’s anti‑SLAPP statute, RCW 4.24.525, arguing that the City sought to chill his right to public participation and petition with its injunction action.
The anti‑SLAPP statute helps to protect a defendant’s exercise of First Amendment rights by providing a damages remedy for retaliatory litigation, otherwise known as “strategic lawsuits against public participation.” In order to prevail on an anti‑SLAPP motion, a defendant must first establish by a preponderance of the evidence that the claim is based on an action involving public participation or petition. Egan argued that the anti‑SLAPP statute applied because the City moved to enjoin Egan’s PRA request based on his “threat” to sue.
The Court disagreed. The right to access public records is purely statutory. It is not granted by the state or federal constitutions or compelled by the First Amendment. Here, the City’s injunction action was not based on Egan’s threat to sue (protected speech), but instead it was based on the parties’ underlying controversy about whether the privacy statute applied as an exemption to Egan’s PRA request. Because the purpose of City’s injunction action was to determine an underlying controversy, as opposed to suppressing Egan’s right to sue under the PRA, the Court held that the anti‑SLAPP statute did not apply.
In Francis v. Washington State Department of Corrections, Division II of the Court of Appeals held that the Department acted in bad faith by not conducting a reasonable search in response to an inmate public records request, awarding both penalties and costs. This is the second time in the past month that Division II has addressed the 2011 amendments to RCW 42.56.565, which now prohibits an award of PRA penalties to an inmate unless the responding agency acted in bad faith. See Gronquist v. Dep’t of Corrections (Oct. 29, 2013).
Unlike Gronquist, however, here the court found that DOC acted in bad faith. In particular, the court noted (1) a delayed response by the agency, (2) lack of strict compliance with PRA procedural requirements, (3) lack of proper training and supervision, (4) negligence or gross negligence, and (5) sufficient clarity in Francis’s request. In responding to the request, DOC spent no more than 15 minutes searching for the documents, which the court described as “almost a rubber-stamp situation.” Despite these findings, the court also found no recklessness or intentional noncompliance, no intentional hiding or misrepresentation, and no deceit on DOC’s part.
DOC’s primary argument was that bad faith, which is not defined in the PRA, requires some intentional, wrongful act. The court disagreed. After reviewing PRA and non-PRA cases discussing bad faith, as well as federal FOIA cases, the court determined that DOC’s proposed standard was untenable. The court also looked to legislative intent and the underlying purposes of the PRA in concluding that bad faith should be given a broader reading. While bad faith would not apply where an agency simply made a mistake in a record search or followed a legal position that is subsequently reversed, it would be liable if it failed “to carry out a record search consistently with its proper policies and within the broad canopy of reasonableness.”
After the court of appeals affirmed the trial court’s determination of bad faith and its award of $4,495 in penalties, the court reversed the trial court’s refusal to award costs. Explaining that RCW 42.56.550(4) is a mandatory cost-shifting provision, the court held that Francis should have been awarded his costs as the prevailing party. The court also awarded Francis his costs on appeal.
In Freedom Foundation v. Gregoire, the Washington State Supreme Court holds that separation of powers in the State Constitution creates a qualified executive privilege to protect certain gubernatorial deliberations.
Although Washington’s Constitution does not contain a formal separation of powers provision, the Court recognizes the doctrine based on the State’s multi-branch form of government. One branch will violate separation of powers if its activity “threatens the independence or integrity or invades the prerogatives of another.” Executive privilege preserves the integrity of the executive branch by protecting the chief executive’s access to candid advice and robust decision making.
But, the privilege is not unlimited. It extends only to communications made to inform policy choices that are authored or solicited by the governor or by gubernatorial aids with significant responsibility for formulating policy advice for the governor.
In order to assert the privilege, the governor must provide a privilege log that lists the documents sought to be protected, the author, the recipient, and a description of the document’s subject matter. Once the governor provides a sufficient privilege log, the communications are presumptively privileged. In order to overcome the privilege, the requestor must assert a particularized need for the requested materials. Only after the requestor demonstrates particularized need will a trial court determine whether that need outweighs the public interest served by protecting gubernatorial deliberations.
Here, Governor Gregoire asserted the privilege over five documents and part of a sixth document in response to a request by Freedom Foundation. Because Freedom Foundation refused to assert a specific need for the requested documents, the Court held that it could not compel the governor to disclose those documents.
In Gronquist v. Washington State Department of Licensing, the Washington Court of Appeals, Division II, held that the Department of Licensing improperly redacted several items from a business license application prior to disclosure. Citing RCW 42.56.070(1), Licensing argued that the home address, home telephone number, business telephone number, income information, employee information, banking information, and marital status information from a business license application were all exempt from disclosure under three “other statutes” incorporated into the PRA, among other exemptions.
The Court of Appeals disagreed. First, the redacted information was not protected tax information under Department of Revenue statutes. RCW 82.32.330 (return or tax information) did not apply to the redacted information because the statue, in fact, authorizes Revenue to disclose “tax information that is maintained by another Washington state or local governmental agency….” Because Licensing (another agency) held the application, the information was not protected tax information under the Revenue statute. Although the PRA itself also exempts personal tax information collected in connection with an assessment or tax, this exemption did not apply because business license applications do not provide financial information for tax purposes.
Second, Employment Security Department statutes also did not exempt the redacted information. RCW 50.13.020 (employer information or records) did not exempt the applicant’s marital status information because the Employment Security statute exempts only information “obtained by” Employment Security, and the PRA itself limits the scope of this statute to records “maintained by” Employment Security, RCW 42.56.410. Here, Licensing, and not Employment Security, maintained and obtained the business license application. Additionally, the Employment Security statute did not apply because the applicant, operating as a sole proprietorship, was not an “employer.”
Third, under a similar line of reasoning, the Court held that Department of Labor and Industries statutes did not apply. RCW 51.16.070 (employment information) did not exempt information in the application because the applicant was a sole proprietorship, did not have employees, and was not an “employing unit” under the statute.
The Court also held that Licensing failed to provide Gronquist with a proper and timely explanation for its redactions under RCW 42.56.210(3), initially and throughout every stage of litigation. First, Licensing failed to provide any explanation for the redactions in its initial production. Second, the explanation provided by Licensing after Gronquist filed this lawsuit failed to specify what information had been redacted, which exemptions applied to each redaction, or how those exemptions applied. Third, Licensing’s second explanation submitted in connection with in camera review also failed to link specific exemptions to specific redacted items. Finally, on appeal Licensing relied on different exemptions and only sought to explain some of the redactions.
The Court also noted that Licensing took eight business days to respond to Gronquist’s request, making its initial response three days late. Licensing argued that it received Gronquist’s letter on July 31, 2009, that its letter response to Gronquist was dated that same day, and that Gronquist did not controvert these facts in the record. Rejecting these arguments, the Court noted that Licensing submitted a declaration of one of its senior administrators stating that the office received Gronquist’s request “[o]n or about July 21, 2009.”
Although the PRA does not authorize a freestanding penalty for an agency’s failure to provide explanations for withholding records, failure to explain amounts to a “silent withholding” that may aggravate the penalty for wrongfully withholding a record. The Court recommended that these were proper considerations for determining the penalty amount on remand in order to “discourage improper denial of access to public records.”
Yesterday was a busy day for public records issues, as the Washington Supreme Court issued two detailed decisions relating to the State Public Records Act. In Ameriquest Mortgage Co. v. Office of the Attorney General, the Court held records that include personal financial information protected under the Gramm-Leach-Bliley Act of 1999 (GLBA) must be withheld from disclosure under Washington’s PRA, even if the protected information could be redacted. On the other hand, in Resident Action Council v. Seattle Housing Authority, the Court held that records including information protected by certain federal housing regulations must be disclosed under Washington’s PRA, after making appropriate redactions.
The Court in Resident Action Council also provided a new disclosure flow chart and exemption categories for agencies to use in determining whether to disclose information or records pursuant to a PRA request.
Records that Include Information Protected by the Gramm-Leach-Bliley Act are Entirely Exempt from Disclosure Under Washington’s PRA
In Ameriquest Mortgage Co. v. Office of the Attorney General, the Supreme Court unanimously held that records including information protected by the GLBA must be withheld from disclosure under Washington’s PRA, even if the protected information could be redacted.
The Court in Ameriquest reviewed PRA requests for documents held by the Washington State Attorney General’s Office that it received from Ameriquest Mortgage Company as part of an AGO investigation into Ameriquest’s lending practices. Under the GLBA, financial institutions are prohibited from disclosing nonpublic personal information without notice to the consumer. However, an exception applies to those financial institutions complying with an investigation. The GLBA also prohibits agencies from using protected information outside the scope of their investigation and from disclosing such information to a third party. The Court in Ameriquest held that the documents obtained by the AGO that include nonpublic personal information protected by the GLBA are entirely exempt from disclosure under Washington’s PRA because redacting the nonpublic personal information prior to disclosure is outside the scope of the AGO’s investigation and, therefore, outside the use permitted by the GLBA.
(Note that in Resident Action Council, discussed below, the Court recognizes that this result is unusual. “If it is information within a record that is exempted, such information usually can be effectively redacted.”)
The AGO also obtained records from Ameriquest that did not include nonpublic personal information protected by the GLBA. The Court held that these records are subject to disclosure under Washington’s PRA because (1) the documents are not essential to law enforcement and, therefore, do not qualify under the statutory investigative record exemption (RCW 42.56.240); and (2) the documents are not exempt under the State Consumer Protection Act (chapter 19.86 RCW), as Ameriquest provided them voluntarily rather than pursuant to a civil investigative demand.
Records that Include Information Protected by HUD Must be Redacted and Disclosed Under Washington’s PRA
The Supreme Court in Resident Action Council v. Seattle Housing Authority held that records including information protected by HUD must be disclosed under Washington’s PRA, except for the personal information of welfare recipients, which should be redacted. The Court also held that it was within the trial court’s discretion to order the Seattle Housing Authority (SHA) to (1) electronically produce documents that are redacted in a particular format; (2) publish procedures regarding public records requests, a list of applicable exemptions, and policies governing redaction, explanations of withholding, and electronic records; and (3) pay statutory damages ($25 per day) and attorney fees to the Resident Action Council.
Under HUD regulations, SHA is required to keep one copy of each written grievance decision in the tenant’s folder and another copy with all names and identifying references deleted on file for inspection by other tenants who may seek to file a grievance in the future. RAC requested electronic copies of all hearing decisions (both redacted and unredacted) under Washington’s PRA. SHA unsuccessfully argued that HUD regulations preempt disclosure of the unredacted decisions and that an unredacted decision is entirely exempt from disclosure if it contains personal information of welfare recipients.
In the majority opinion written by Justice Gonzalez, the Court stated that HUD regulations merely ensure a limited form of disclosure to a limited class of persons in order to promote fairness within each housing authority’s grievance hearing process. HUD has made clear that it intends for state laws to generally govern disclosure and production of housing authority documents.
The Court also stated in the majority opinion that most of the 141 exemptions under the PRA are “categorical,” exempting without limit a particular type of information or record (e.g., RCW 42.56.230(5) (exempting debit card numbers)). Conditional exemptions, which are less numerous, exempt a particular type of information or record, but only insofar as an identified privacy right or vital governmental interest is demonstrably threatened in a given case. If a type of record is exempt, then meaningful redaction generally is impossible, unless redaction actually transforms the record into one that is outside the scope of the examination. If information within a record is exempt, such information “usually” can be effectively redacted. (Note, the Court reached an “unusual” result in Ameriquest Mortgage Co., discussed above, with respect to information protected by the GLBA that cannot be effectively redacted).
The majority opinion divides the 141 current statutory PRA exemptions into the following new categories (set forth in Appendix A of the decision):
(1) Categorical-information exemptions;
(2) Categorical-record exemptions;
(3) Categorical-hybrid exemptions (exempting both information and records);
(4) Conditional-information exemptions;
(5) Conditional-record exemptions;
(6) Conditional-hybrid exemptions; and
(7) Ambiguous exemptions that “require serious consideration and construction” prior to any attempt at appropriate grouping.
Applying the new exemption categories, the majority opinion then set forth the following disclosure flow chart, instructing agencies on the steps that must be taken in determining whether disclosure is required under the PRA:
Notably, the concurring opinion written by Chief Justice Madsen stated that the categories and flow chart in the majority opinion exceed the scope of the question before the Court. The concurring opinion also stated that several of the majority’s PRA classifications are questionable. While four out of the nine justices signed the majority opinion, Justice Owens joined only with the result, which may limit the precedential value of the new chart and categories.
Responding to complaints about Dr. Cornu-Labat, Quincy Valley Hospital conducted two ad hoc investigations concerning separate allegations of intoxication and incompetency to practice medicine. The ad hoc investigations failed to uncover enough evidence to substantiate either claim. However, hospital administrators “remained concerned” for the Doctor, placed him on paid administrative leave, and referred him to the Washington Physicians Health Program. After Dr. Cornu-Labat refused to visit WPHP, which precluded WPHP from issuing a recommendation on his fitness to practice medicine, the Hospital fired him.
Dr. Cornu-Labat filed separate Public Records Act requests for documents relating to both investigations. The Hospital denied the first request, claiming the Hospital was not an agency subject to the PRA and that the records relating to the intoxication investigation were “investigative” and exempt under RCW 42.56.240. His second, third, and fourth requests sought documents from both investigations, and the Hospital eventually denied those requests under PRA exemptions specific to the healthcare industry.
The Grant County Superior Court held that the peer review exemption cited by the Hospital did not apply because under RCW 4.24.250 (and RCW 42.56.360) peer review committees must be regularly constituted and consist of professional peers. The ad hoc investigations here included non-physicians.
The Washington Supreme Court reversed and held that the plain language of RCW 4.24.250 extended the exemption to committee records of non-physician staff sitting on the committee. RCW 42.56.360 did not narrow the scope of “peer review committee” for the purposes of exempting records from disclosure under RCW 4.24.250. Because other peer review statutes allow officers, directors, and employees to sit on review committees, the Hospital’s ad hoc investigations qualified as peer review committees even though non-physicians participated.
The Court remanded on this issue to determine whether the investigations were a function of regularly constituted committees or whether the investigations were conducted by ad hoc committees not entitled to the exemptions under RCW 4.24.250. The Court also remanded to determine whether the records sought embodied the proceedings of a formal meeting of the Hospital board (or its staff or agents) concerning the Doctor’s clinical privileges and therefore exempt from disclosure under RCW 70.44.062(1)). If the records were generated during a general investigation into Dr. Cornu-Labat’s alleged misconduct, then this exemption would not apply.
Finally, the Court rejected the Hospital’s argument that the confidentiality provision of Dr. Cornu-Labat’s employment contract precluded the Doctor from requesting hospital records involving members of its medical staff. The Doctor’s identity and his employment contract were irrelevant “because the PRA states that agencies may not inquire into the identity of the requestor or the reason for the request.” Employment contracts “cannot override the PRA.”
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.
Does a single production constitute production on an installment basis and trigger the PRA’s statute of limitations? Divisions I and II of the Washington Court of Appeals disagree.
In Bartz v. Department of Corrections, Division II of the Court of Appeals held that the PRA’s one-year statute of limitations runs even if the agency delivers only one production. In other words, a single production also means “the last production… on a partial or installment basis.” A plain reading of the statute might suggest otherwise. “Actions under this section must be filed within one year of the agency’s claim of exemption or the last production of a record on a partial or installment basis.” RCW 42.56.550(6).
Division II reasoned that a literal reading would lead to an absurd result, namely: “a more lenient statute of limitations for one category of PRA requests” after the Legislature shortened the statute from five years to one in 2005.
Yet, Division I concluded just that. In Tobin v. Worden, 156 Wn. App. 507 (2010), Division I held that the one-year statute does not apply unless the agency claims an exemption or produces records on installment. There, the agency did not claim an exemption and produced only a single document. Because a single production could not be an installment, Division I concluded that the statute did not apply.
As the Legislature hits full stride, open government initiatives and reforms continue to make headlines and receive editorial ink.
The Tacoma News Tribune reports that newly sworn-in Attorney General Bob Ferguson wants to reinstate a full time open-government ombudsman in the Attorney General’s Office. The Tribune also notes his support for HB 1198, requiring training for public officials and employees on public records and open meetings.
Citing a potential Gold Bar bankruptcy stemming from public records act requests and lawsuits, public officials lobbied for HB 1128, which allows an agency to seek an injunction against requesters who seek to harass or intimidate the agency or its employees, the Everett Herald reports. The bill also allows agencies to limit employee hours spent compiling responses to PRA requests if those agencies provide several types of records online.
The Olympian offers a different perspective on HB1128. Citing the continuing “assault” on the Public Records Act, the Olympian’s editorial board finds the attempted tradeoff between agency efficiency and openness “unsatisfactory.”
Citing the Public Disclosure Commission’s role as election watchdog, the Walla Walla Union-Bulletin editorial board offered its support to Rep. Jim Moeller’s effort bolster PDC funding. HB 1005 would require annual fees from political committees, politicians and lobbyists who file with the PDC. Proponents expect about $600,000 a year in additional revenue for the agency.
Washington's Constitution Guarantees Public Access to Court Documents When Relevant to a Motion Actually Decided
In Bennett v. Smith Bunday, the Washington Supreme Court rules that article I, section 10 of the Washington Constitution requires that only material relevant to a decision actually made by a court is presumptively public. In the absence of a court decision, records do not become part of the administration of justice and may remain sealed for good cause under a stipulated protective order.
Stemming from a marriage dissolution, Rondi Bennett and her father, Gerald Horrobin, sued the accounting firm Smith Bunday Berman Britton, alleging that the firm aided Rondi’s husband in embezzling and hiding money from jointly owned businesses. As part of discovery, Smith Bunday provided confidential nonparty tax records under a stipulated protective order, and the documents were marked “confidential.”
Although the case settled, a response filed in the court by Rondi and Gerald contained or made reference to “confidential” documents in violation of the stipulated protective order, apparently by accident. The parties agreed that Rondi and Gerald would refile redacted and sealed versions. However, Rondi and Gerald’s expert witness moved to intervene, asserted his right as a member of the public to open access to court records, and opposed the refilling because “everything was about to go underground.”
Under article I, section 10 of the Washington Constitution, court records that become part of the administration of justice are presumptively public and may be sealed from the public only upon a showing of some compelling need for secrecy. However, the public does not have an interest in documents when the court does not actually make a decision or when the documents are not relevant to the merits of a motion before the court.
Here, the “confidential” documents filed with the court were not part of the administration of justice because the parties settled prior to court disposition. The trial court had no occasion to use the information as part of its decision making process. As the Court further noted, “The supporting material cannot be relevant to a nonexistent decision.” Therefore, the “confidential” documents were not presumptively public under article I, section 10.
By 2009, Susan Forbes “and other persons aligned with her” had submitted 82 record requests for various City of Gold Bar public records. Many of those emails were stored on the personal email devices of the mayor, city council members, and other city staff. For over a year, the City corresponded with Ms. Forbes, fulfilling her “purposeful[ly] broad” requests through installments, but also extending its estimated times for response on several occasions. “Unsatisfied” with the delay and the absence of a privilege log outlining withheld documents, Ms. Forbes sued the City claiming the delays were not “reasonable.”
The Washington Court of Appeals, Division 1, provided some vindication for the City, if not relief, upholding a trial court’s summary judgment rejecting Ms. Forbes’ Public Records Act lawsuit. As the Court reiterated, the PRA allows a public agency to respond to a request for public records by providing a reasonable timeframe for response. The agency may fulfill requests in installments as additional requests are assembled to complete broad requests. The superior court may, however, require the agency to show that the estimate was “reasonable” under RCW 42.56.550. By analogy to FOIA and PRA case law on the reasonableness of searches, the Court found that the extensive nature of the requests, resulting in disclosure of 28,290 documents, made delays in production reasonable.
During litigation, Ms. Forbes also requested that the trial court review in camera personal emails that were not produced. The lower court declined because Ms. Forbes “did not have any clear articulation as to why such a review would be appropriate.” Division I affirmed and held that the City’s “clear and consistent record” of adequate searches in reasonable times did not merit in camera review of records not produced. Importantly, the personal emails at issue did not contain city business. The Court distinguished Mechling v. City of Monroe, where personal emails were not exempt because they contained information relating to the conduct of government. Here, no emails containing city business were withheld. Furthermore, because the personal emails were merely non-responsive, they were not withheld, and the City was not required to produce a privilege log.
The cost of responding to the voluminous requests and the related litigation has pushed the City of 2100 people to the brink of bankruptcy. One of the largest expenses (and reasons for delay) was the need to search city officials’ personal electronics and home computers, including sorting personal emails from City business. Better document management practices may not have eliminated Ms. Forbes’ issues, but it could have decreased Gold Bar’s costs.
In an unpublished opinion, Division II affirmed a trial court’s grant of summary judgment against George Nervik, a 45-time Public Records Act requestor of Department of Licensing emails and attachments. The Court held that some of Mr. Nervik’s claims were time-barred by the PRA’s one-year statute of limitations and that several of his other claims were not properly preserved for appeal. However, the bulk of the opinion is devoted to Mr. Nervik’s purported request for email metadata.
Metadata associated with a public record is subject to disclosure under the PRA. But, a government agency is not required to provide metadata unless the metadata is specifically requested. Requesting emails or records in electronic format does not automatically lead to a request for metadata. Moreover, agencies have discretion in formatting records and need not provide records in electronic format. Here, Mr. Nervik requested that emails “should be in Outlook .pst format only together with all attachments....” Although .pst files presumably contain metadata, the Court held that this “mere format request” was not a specific request for metadata. In other words, requesting records in a format that contains metadata is not a request for that metadata. The Court ruled that the Department properly produced some records in hard copy for redaction and others in electronic format without metadata. Therefore, the Department was entitled to summary judgment on Mr. Nervik’s claim that it failed to disclose public records by not providing metadata.
Another day, another dollar (actually 65,000 of them) paid out under the Public Records Act. The Washington Attorney General's Office and the Department of Corrections split the bill to settle a claim by the Washington Coalition for Open Government. WCOG alleged that the AG's Office had helped corrections officers sue to stop disclosure of records requested by a prisoner. This case had its origins with the same arsonist, Allan Parmelee, whose frequent records requests prompted the State Legislature to allow injunctions against harassing and abusive requests.
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.
Arthur West continues his efforts to provide Washington’s appellate courts with the opportunity to define the scope and breadth of the Public Records Act. Rather than keep all the fun for itself, the Supreme Court graciously shared the opportunity to decide Mr. West’s latest appeal with Division II, transferring Mr. West’s request for direct review to the lower court. Division II affirmed the trial court in an unpublished opinion, West v. Gregoire, No. 42779-6-II (Sep. 11, 2012).
Apparently interested in reviewing documents relating to the Washington State Association of Counties, Mr. West submitted a memo to the Governor with the title “RE: ATTENDANCE AT SECRET SHADOW GOVERNMENT EVEN, AKA (WSAC 2009 ANNUAL CONFERENCE).” (Emphasis in Original). The Governor’s office did not immediately recognize that the memo contained a request for public records, an error Mr. West pointed out two weeks after submitting the memo. The Governor’s office offered to provide an estimate of response time within two days, but Mr. West stated that he had a litigation deadline six days away. The Governor’s office emailed him 57 pages of responsive documents the next day, then provided an additional 299 pages of documents two weeks later.
The Governor’s office withheld, under a claim of executive privilege, a document authored by one of the Governor’s Executive Policy Advisors. Mr. West sued under the PRA. After an in-camera review, the trial court concluded that the document contained no advice to the Governor and was thus subject to disclosure regardless of whether executive privilege exists in Washington. The Governor’s office disclosed the document that day.
The trial court awarded Mr. West $25/day in statutory penalties, excluding 22 days which the trial court concluded was a reasonable period for the Governor’s office to respond. West petitioned the Supreme Court for direct review of the penalty, and the Governor’s office cross-appealed. The Supreme Court transferred the case to Division II, which affirmed on all points. The court concluded that the statutory language providing that the prevailing requester is entitled to a statutory penalty “for each day that he or she was denied the right to inspect or copy said public record” necessarily included a reasonable time period for the government to respond to a request. That is, the government does not “deny” the right to inspect a record during the time reasonably necessary to gather responsive documents.
Both parties appealed the award of a $25/day penalty. Division 2 concluded that under the list of mitigating and aggravating factors contained in the Yousoufian V case, the amount was not "manifestly unreasonable" and affirmed.
Citizens are demanding an increasingly open government, and campaign finance databases are helping states to provide a more convenient level of access. While the public once needed to visit elections offices in person to peruse campaign finance disclosures, now it can happen with a keystroke.
In Washington State, the Public Disclosure Commission is leading the effort to increase transparency in campaign finance disclosure, and the Commission’s website is the vehicle for disclosing that information to the public.
The commission obtains campaign finance reports from candidates and political action committees, populates the database, and posts the database on its website. Visitors to the site can learn more about money entering campaigns and how it is spent, and they can gather information on candidates, political action committees, individual donors, and lobbyists. The site also allows visitors to link directly to the actual submitted reports. You can find the database here: www.pdc.wa.gov/MvcQuerySystem
President Obama's homebrew recipe could be in the public domain soon if a FOIA request filed by an inquisitive citizen turns up any responsive documents. If the recipe has been written down, backyard brewmasters could be churning out their own batches of White House Honey Ale. If the recipe gets released, a toast to sunshine laws would definitely be in order!
The Association of Washington Cities recently reported on city officials testifying before the House Local Government Committee about spiteful and abusive public records requests. In the most extreme example, the Town of Gold Bar may face disincorporate if it cannot find a way to pay for ongoing public records litigation against "a few harassing requesters. The City of Pasco is dealing with a request for 34 years of records from a citizen who wasn't satisfied with a land use decision. Given the continuing drain on local government resources, perhaps the 2013 legislative session will provide some relief from the most wasteful of requests.
The Washington Supreme Court ruled today that the State Patrol cannot evade disclosure of public accident records using a federal statute and separate agreement with the State Department of Transportation. The decision affirms a 2010 decision from the Court of Appeals, Division II.
The Supreme Court's analysis mirrored that of both the trial court and the Court of Appeals in requiring the State Patrol to disclose requested records related to bike accidents on Seattle's Montlake Bridge. The State Patrol cannot hide behind a memorandum of understanding with the State Department of Transportation and WSDOT’s federal privilege under 23 U.S.C. §409, barring use of collision data in lawsuits. The federal privilege is intended to allow WSDOT to compile and analyze accident data to better implement highway safety measures funded by the federal government without concern that such analysis would be used to support lawsuits against the State.
Although WSDOT has physical custody of the accident records based on the MOU, they are still State Patrol records and subject to disclosure if the State Patrol cannot show an appropriate exemption. While the State Patrol’s reports do provide information for WSDOT’s federally exempt accident tracking and analysis, WSDOT’s exemption does not bar disclosure because the State Patrol collects its accident information for other non-exempt law enforcement investigation purposes.
In addition, the Supreme Court rejected a new argument from the State that the accident reports are confidential. The Court distinguished between reports submitted by motorists, which are largely confidential under RCW 46.52.080, and those submitted by law enforcement officers in the course of their duties, like the records at issue here that must be disclosed.
As we have seen frequently over the years, the Washington Supreme Court again construes the Public Records Act in favor of broad disclosure and will not allow agency exemption arguments to prevail unless the record unequivocally falls into a clear exemption.
A recent case decided by Division II of the Washington State Court of Appeals confirms that agencies must receive fair notice of a request for public records. In other words, a request must have sufficient clarity to be recognizable as a request for information under the Public Records Act. The Court also determined that a union representative had adequate standing to file a public records lawsuit on behalf of a union member.
In Germeau v. Mason County, Case No. 41293-4-II, 2012 WL 621468 (Feb. 28, 2012), Richard Germeau, a representative of the Sherriff’s Office Employees Guild (“Guild”), commenced representation of Guild member Detective Sergeant Martin Borcherding, who had been involved in an off-duty domestic dispute.
Germeau was an experienced public records requestor, having made several past requests using the official Mason County Public Records Request Form. Despite his familiarity with the form, Germeau instead drafted a letter to the Sherriff’s Office seeking information and documents pertaining to any pending investigation of Borcherding. The letter did not specify that it was a public records request, and instead emphasized that Germeau, on behalf of the Guild, would be representing Borcherding during the internal investigative and discipline processes.
The Sheriff’s Office did not respond in writing and did not produce documents in response to Germeau’s letter. Several months later, after receiving records from other sources, Germeau believed his original request to the Sherriff’s Office had been ignored, and he had not received all pertinent records. Germeau then filed a complaint against the Sherriff’s Office and the County alleging violations of the PRA.
First, the Court of Appeals reversed the district court’s finding that Germeau lacked standing to bring the PRA action against the County. The Court of Appeals held that Germeau, as a representative the Guild, had a sufficient “personal stake” in the outcome of the suit to have standing on behalf of the Guild members he represents.
However, Germeau’s victory was short lived, as the Court ultimately upheld the district court’s dismissal of the lawsuit. The Court found that Germeau had failed to provide fair notice of a PRA request, and that nothing in the August letter put the County on notice that Germeau was requesting records under the PRA. Instead, the letter appeared to request documents in connection with the Sherriff’s Office’s internal investigation of Borcherding under the Guild’s collective bargaining agreement, not the PRA. Consequently, the Court of Appeals upheld summary judgment for the County and Sherriff’s Office, finding that the agencies had not violated the PRA.
This case provides several helpful takeaways for both agencies and requestors:
- Just as an attorney may have standing to bring a PRA claim on behalf of a client, similarly a union representative or the union itself has a sufficient standing to bring a PRA claim on behalf of a union member.
- While the fair notice rule doesn’t require a requestor to specifically cite to the PRA, the language of the request must be sufficiently clear so that the agency understands that a request for public records has been made.
- For requestors: Clearly state that your correspondence is a request for public records. Whenever possible, use an agency’s official public records request form.
- For agencies: Seek clarification from requestors if there is uncertainty about whether correspondence might be a request for public records.
In Double H, L.P. v. Washington Department of Ecology, No. 29918-0-III, 2012 WL 593213 (Feb. 23, 2012), the Washington Court of Appeals, Division III, was called upon to decide whether the trial court abused its discretion in grouping two public records requests as one request for purposes of deciding the number of days for which a penalty under RCW 42.56.550(4) would be awarded. The trial court decided that the requestor’s two requests, which sought only records related to an Ecology investigation of Double H, should be grouped as a single request for purposes of penalties. The trial court also declined to penalize Ecology for producing the requested documents (totaling about 3,000 pages) in installments, and declined to award penalties for the groups requested separately. This court affirmed, holding that these determinations were discretionary with the trial court and that the trial court had not abused its discretion.
Double H requested records related to a DOE investigation of it, in August 2009. Ecology sent the mandatory five-day letter, estimating that the responsive records would be produced the week of September 10, 2009. In fact, although production began with an installment provided on September 24, 2009, two other sets of responsive records were produced later. In January 2010, Double H renewed its request, to catch records not in existence in August 2009, and Ecology estimated that these would be produced the week of March 19. However, the first installment of responsive records was produced a month later, and the final installment was not produced until January 2011. Ecology stipulated that the penalty period was 683 days.
The court noted that the “PRA embodies two mandates in determining a penalty amount. First, a penalty is mandatory when a requesting party is improperly denied access to a public record under the PRA.” The court added, “Second, a penalty shall be awarded for each day records are wrongfully withheld.” But, as Ecology argued (and the Court agreed), “beyond these mandates, establishing the penalty amount is within the sound discretion of the trial court.”
This court relied on Yousoufian v. Office of Ron Sims, 152 Wn.2d 421, 98 P.3d 463 (2004) (sometimes referred to as “Yousoufian II”), and Sanders v. State, 169 Wn.2d 827, 864, 240 P.3d 120 (2010), for the proposition that a grouping of records for purposes of calculating the number of records for which a penalty must be assessed must be reasonable, and further the purposes of the PRA. The problem with artificially grouping records according to the dates of installment production, according to the court, is that such grouping ultimately penalizes an agency for producing records in installments. An agency liable for, e.g., $27 per day in penalties for a total failure to produce records for, e.g., 683 days in delayed production of one group of 3,000 records would pay less than an agency that produced those same 3,000 pages in 25 installments over that 683 day period. This result, the court held, would be contrary to the purposes of the PRA.
In Double H. L.P. v. Washington Department of Ecology (No. 29918-0-III), Division III of the Washington Court of Appeals clarifies that a court is not required to impose separate penalties on each improper public records response. Instead, a single penalty may be applied to a series of responses when they relate to the same subject matter.
The Department of Ecology received an initial records request from Double H. L.P. regarding Ecology’s investigation of illegal hazardous waster disposal on Double H’s farm. Double H. later followed up with a “refresher” request for records created after the date of the initial request. Ecology responded by producing records on nine different occasions and posting an exemption log that identified certain records withheld from production under various exemption claims.
Ecology conceded that withholding some of the documents violated Washington’s Public Records Act. However, the trial court concluded that only one group of records existed for penalty calculation purposes and that a separate penalty would not be applied to each separate production date. The Court of Appeals upheld the trial court’s reasoning and rejected Double H.’s argument that multiple production installments require multiple penalty groups (which, not surprisingly, would have substantially increased the overall penalty awarded).
The Court of Appeals applied an abuse of discretion standard and reviewed whether the trial court’s decision was manifestly unreasonable or based on untenable grounds. It expressly recognized that nothing in the PRA, and nothing in the Washington State court cases interpreting the PRA, requires trial courts to create penalty groups in a specific fashion.
In summarizing its holding, the Court of Appeals stated that selecting a same-subject group for penalty purposes (rather than a group based upon production dates) encourages agencies not to withhold records until fully assembled and promotes early record production. While this decision does not necessarily prevent a trial court from applying a separate penalty to each record production, it does provide trial courts the flexibility to consider a public agency’s attempt to provide responses in a timely manner when records and information first become available.
Social media is an issue for local government everywhere as shown by the Jackson (Mississippi) Fire Department’s recent foray into internet posting policies. A disgruntled former employee created a Facebook post with unsavory information about the Fire Department, forcing the Department into a conversation about its social media policy.
The Jackson Fire Department issued a memo on social media, while the City itself is still developing a full policy. The Department’s memo encourages employees not to: publicly discuss issues that might be detrimental to the Department or that might conflict with the duties and ethics of a firefighter; to air personal grievances; and clarify that their opinions are their own and not those of the Department.
The rise of social media outlets like Facebook, LinkedIn, and Twitter presents an important communication opportunity for public entities and their constituents. However, the use of social media needs to be carefully planned to avoid pitfalls. Social media is, by definition, an interactive tool intended to create conversations among users and provide a venue for commentary and feedback. For public entities, the tool is useful for broadcasting to a growing internet audience, but allowing feedback and conversation can be a risk. Like the Jackson Fire Department, every government entity will need to have a conversation about the inherent conflict between an individual’s free speech rights and the government’s legitimate right to protect the government service.
Although it is important for public entities to use as many of these communication channels as practicable, the constant need to update and monitor social media outlets drains staff resources.
Public entities must also consider how they will comply with their archiving and public records responsibilities when communicating in an electronic format.
It should be clear to constituents that messages intended for the public agency should be conveyed through the agency’s official website. For example, a public records request or other official query won’t necessarily be recognized via Twitter or Facebook.
These considerations are plaguing the private sector, as well. McDonald’s launched a Twitter campaign last week with the hash tag: “#McDstories.”
When users co-opted the hash tag to distribute negative stories about McDonald’s, the company rapidly ended the campaign. The company stated in an email to the Silicon Valley Business Journal: "With all social media campaigns, we include contingency plans should the conversation not go as planned. The ability to change midstream helped this small blip from becoming something larger." This is a wise strategy for any entity using social media, public or private.
A new case from the California Court of Appeals confirms that third parties named in public records may file “reverse” public records lawsuits to prevent disclosure by California public agencies. The case concerned a Santa Monica high school teacher who had been investigated and disciplined for sexually harassing a student. Two years later, a parent filed a public records request under the California Public Records Act seeking all of the school district’s records related to that investigation and discipline.
The teacher filed suit against the school district seeking to stop disclosure of the records. Ultimately, the Court of Appeals held the teacher’s suit was valid, but that these particular records should be disclosed because the public interest outweighed the teacher’s right to privacy. The disclosure was mandated to a large degree because a reprimand had been issued. California agencies, however, may disclose personnel disciplinary files whenever the complaint is “substantial” and “there is reasonable cause to believe the complaint is well-founded” regardless of the actual disciplinary outcome.
As a result, California public agencies can begin to implement the best practices seen in similar jurisdictions (including Washington State), where disclosure exemptions are permissive rather than mandatory. When “reverse” public records lawsuits are allowed and an agency believes that a record’s release may be sensitive to a third party, there is generally no bar to an agency informing the third party of its intent to release records (so long as the agency is still acting within appropriate response times and other public records act requirements). For California agencies, unlike Washington, this is the only way to seek court review before disclosure because the agencies themselves are barred from filing lawsuits asking for guidance.
Clarifying Records Request Clarifications - All Clear? Court of Appeals Rules Confused County was Reasonably Confused
Today’s Washington Court of Appeals decision in Levy v. Snohomish County stems from Inmate Percy Levy’s less-than-clear records request to the County Prosecutor’s office:
“While pending trial back in 2002… my attorney provided me with a statement made by my co-defendant Breena Johnson. I want a copy of that statement.”
Perhaps unsurprisingly, the designated public records officer sought clarification from Levy, because the records officer was neither Levy nor his attorney. Today’s decision again points out that agencies managing public records requests are allowed to seek clarification and don't need to be mind readers.
As the records officer tried to clarify and fulfill the request without heedlessly duplicating responses to a previous request that Levy had made, Levy first denied he had made a previous request. Then Levy acknowledged the previous request.
Finally, after 59 days and several rounds of confounding correspondence, Levy was in possession of the two documents he apparently had sought. For its troubles in interpreting Levy’s request and conscientious attempt to not burden an inmate with the cost of paying for records he already had, the County was rewarded with a public records act lawsuit.
Levy’s lawsuit alleged that the County’s request for clarification was unwarranted and that the 59-day “delay” was unreasonable. The Court of Appeals found that the County’s request for clarification was reasonable and that there was no delay. The County did inadvertently omit one document when it finally understood what Levy was requesting, but realized its oversight and sent out the document one day later.
Although the Court does not break new ground, the decision serves as a reminder about the need for diligence and documentation in responding to public records requests. Snohomish County was able to show the patent ridiculousness of Levy’s lawsuit by demonstrating that it promptly responded to every communication from him and was striving to understand his request. This case is another example of inmates using the Washington PRA for other than the act’s intended purpose of fostering public access to documents. Such cases caused the legislature to restrict the rights of inmates under the PRA.
Tri-City Herald Reports on Massive Document Production in Response to Request from Annexation Opponent
The ongoing controversy over a City of Pasco annexation authorized by legislation adopted by the State Legislature in 2009 (ESSB 5808), has resulted in broad requests for City public records. The requests are so expansive as to cause substantial delay in production of the public records. This is not an unusual occurrence, as the Public Records Act (PRA) is regularly used as a political tool against public agencies. This approach is completely permissible under Washington law, as a requester need not identify the purpose for the records request. Washington has regularly recognized that the often substantial cost of compliance, even in the face of an unjustified records request, is outweighed by the policy supporting public access to documents. The Legislature and courts have only responded to date with respect to prisoner's suits under the PRA. See January 20, 2011 posting on this blog.
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.
The nomination of Solicitor General Elena Kagan to the Supreme Court prompted document requests to the Department of Justice (DOJ). The D.C. District Court recently upheld a DOJ determination that records from the office of the Solicitor General were exempt from disclosure under the Freedom of Information Act (FOIA). The records either were privileged or were not “agency records” subject to disclosure. Media Research Center v. U.S. Department of Justice and Judicial Watch v. U.S. Department of Justice, 2011 WL 4852224 (Oct. 13, 2011).
In response to FOIA requests, DOJ began an electronic search of its files encompassing the dates of Justice Kagan’s tenure as Solicitor General. The search identified 1400 pages. After review, DOJ concluded that 86 pages were responsive to the requests under FOIA.
DOJ released 45 of the 86 pages, and withheld 41 pages under two theories: first, that they were not “agency records,” and second, that they fell under the “work product privilege” (exemption 5 to FOIA). DOJ released a log (often referred to as a “Vaughn Index”) providing its reasoning for every withheld or redacted document.
Plaintiffs challenged: 1) the adequacy of the initial search; 2) the determination that the 41 pages were not “agency records;” 3) the claim of attorney work product on six redacted documents; and 4) the claim concerning the deliberative process privilege.
- Adequacy of the Search. The Court concluded that DOJ’s search of its paper, electronic, and email files was adequate, and that plaintiffs’ conjecture that there should be additional records was insufficient to justify a different conclusion. See, Weisberg v. Department of Justice, 705 F.2d 1344 (D.C. Cir. 1983); Iturralde v. Comptroller of the Currency, 315 F.3d 311 (D.C. Cir. 2003) (agency’s search must be reasonably calculated to uncover all relevant documents, measured by the search methods and not by the results of the search).
- Agency records. In rejecting the Plaintiffs request for the Solicitor General’s correspondence about her nomination to the Supreme Court, the D.C. Circuit Court found the correspondence “was not relied upon by the [Office of Solicitor General] in carrying out its business, but rather was used for a purely personal objective…the documents were personal, not attributable to the agency, and therefore were not “agency records.”
- Exemption 5 to FOIA, and the “Work Product Privilege.” Exemption 5 to FOIA allows an agency to withhold records that would be privileged from discovery during litigation. This exemption incorporates the work product doctrine and the deliberative process privilege. Department of the Interior v. Klamath Water Users Protective Association, 532 U.S. 1 (2001). Applying Exemption 5 and the attorney work product doctrine, the court rejected plaintiffs’ argument that a specific claim is necessary to invoke the doctrine. Instead, an objectively reasonable belief that litigation is a real possibility triggers the privilege. The Court did not reach the deliberative process question.
For reference to Washington’s PRA exemptions for attorney-client and other privileges that may give rise to exemptions from disclosure, see WA Court of Appeals Decision in Zink v. City of Mesa Has Many Public Records Act Lessons for Municipalities.
Hard Times for Hard Drives Redux: Washington Supreme Court Announces Decision on Need to Search Hard Drives
As we reported here on January 31, the Washington Supreme Court heard argument on the reach of the Public Records Act (PRA) in the digital age. On September 29, 2011, the Court decided this case (Neighborhood Alliance of Spokane County v. Spokane County). The Supreme Court found that Spokane County violated the PRA by not searching the hard drive of a computer that had been recently used by the person who generated a specifically requested document.
The document being sought was a seating chart of the County’s Building and Planning Department where the names of the new occupants (one of whom was the son of a County Commissioner) had allegedly been placed on the seating chart some time before the employment selection process was even completed. The date that the seating chart was first created was therefore crucial. But the County made no effort to look for the document on the hard drive of the old computer just recently used by the person who had generated the chart. The Court held that a search of the digital hard drive on the old computer was mandatory in these circumstances.
Not only had the County not searched for electronic records that were requested where those electronic records could easily have been searched, but the County later refused to answer interrogatories about its actions in the PRA lawsuit eventually brought by the Neighborhood Alliance. In perhaps the most far reaching part of its decision, the Supreme Court held that a PRA lawsuit is like any other, and the defendant agency must respond to reasonable discovery requests, including interrogatories and depositions, unless it is first able to secure a protective order from the court.
In other parts of the case, the Supreme Court held that (1) the remedial penalties of the PRA are triggered when the agency fails to disclose and produce records, and any later release of the documents only serves to stop the clock, but not eliminate, the daily penalties; (2) no causation is required to prevail in a PRA lawsuit – subsequent events and subsequent disclosure do not affect the wrongfulness of the agency’s initial failure to disclose the documents; (3) when the trial court finds that the PRA has been violated, daily penalties are mandatory, and only the amount is subject to the trial court’s discretion; (4) the fact that the requestor of documents may already have a copy of the documents does not relieve an agency of the obligation to produce those same documents in response to the request; and (5) there is always an obligation to “disclose” the existence of requested documents, even if there is an exemption from an obligation to “produce” the documents.
Grouping Documents and Lowering Penalties upon Reconsideration is Upheld by the Washington Court of Appeals
Division II of the Washington Court of Appeals has upheld a trial court’s decision to group documents into two categories, thereby lowering the penalties against the Washington Dept. of Labor and Industries (L&I) from over to $500,000 to approximately $30,000. Bricker v. Washington State Department of Labor & Industries, __ Wn.App. __, 2011 WL 4357760 (September 20, 2011).
Ken Bricker is a former contractor who owned a home at which he did his own electrical work. An L&I inspector issued a citation related to the work. Bricker appealed, and sent a letter to the inspector, in which the Public Records Act (PRA) was not mentioned, asking for “a copy of all permits issued and copies of inspections and correction requests by all inspectors at that residence.” The L&I inspector filed the letter, assuming that the records would be made available during the contested hearing over the citation.
Bricker then made several attempts to obtain the records, including telephone calls to L&I personnel who did not recall the calls. It turned out that there were somewhere between 3 and 16 responsive records. Bricker both overturned the citation and won the PRA trial where he was originally awarded penalties totaling over $500,000.00. But the trial court later reconsidered, and broke the documents into two groups, the original 16 records and 3 other records that were duplicates, except for signatures. The trial court awarded $90/day for the first group and $15/day for the second group, stating that the PRA was about accountability, but absent bad faith, the PRA is not meant as compensation for damages.
Bricker appealed the trial court’s reconsideration, which changed the award from a per-document per-day award to a per-group per-day award, reducing the award to just under $30,000.00 plus attorney fees. L&I cross-appealed the high-end award, claiming out that, absent bad faith and with less culpability that in a prior case in which a $45/day penalty was found appropriate, the high end range (the maximum penalty is $100 per day) was an abuse of discretion.
The Court of Appeals affirmed the trial court on both issues.. With respect to the L&I claim that the high per day penalty was error, because there was no bad faith, the Court of Appeals noted that Bricker’s request for documents was clear, the agency made no response even after Bricker followed up on his request, and the L&I inspector had received no PRA training and made no inquiries about how to handle Bricker’s request for information.
On the other hand, in response to Bricker’s appeal, the Court held that it is not an abuse of discretion for a trial court to decline to award penalties for each document per day. Pointing out that other courts, including Yousoufian, had upheld awards based on categories of related documents, this Court approved the trial court’s effort to assess different penalties for different groups of documents, to which (as a group) different Yousoufian factors applied.
The New Jersey League of Municipalities (League) is a non-profit, unincorporated association representing over 500 of New Jersey’s municipalities. The League was authorized by the New Jersey Legislature in 1915. One of its functions is serving as a lobbying organization for the state’s municipalities. Its employees are eligible for membership in the New Jersey Public Employee’s Retirement System.
In response to a request for records, the League claimed that it was not a public agency subject to the New Jersey Open Public Records Act (OPRA). The trial court and Court of Appeals agreed with the League. On August 23, 2011, the New Jersey Supreme Court unanimously reversed the lower courts and found that the League was a public agency. Fair Share Housing Center, Inc. v. New Jersey State League of Municipalities, No. 066228. The court distinguished the term “public body” under that state’s Open Public Meetings Act (OPMA), from the term “public agency,” which it found far more encompassing under the OPRA. In contrast to Washington State court decisions, the fact that the New Jersey League was found not to engage in “governmental functions” was not relevant to the inquiry. See the discussion of West v. Washington State Association of Counties (2011) and Telford v. Thurston County Board of Commissioners (1999) in the posting of June 2, 2011: “Washington Association of County Officials Subject to Open Public Meetings Act.” One of the factors considered by Washington courts in determining whether an entity is an “agency” or the “functional equivalent” of an agency and subject to the Washington Public Disclosure Laws is whether the entity performs a governmental function.
In early 2008, a public records request was made to the Washington Department of Natural Resources for emails of a DNR official over the prior 2 years. While over 9,200 pages of emails and attachments were produced, emails from 2006 were not available as a result of DNR’s upgrade to its email system in late 2006. DNR engaged outside consultants to search for those records. However, the records could not be recovered. In response to a claim of violation of the Washington Public Records Act (PRA), the Court of Appeals found that DNR’s “destruction” of the emails did not violate the law (August 23, 2011).
The court distinguished cases in which records were destroyed after a request had been made. See Yacobellis v. City of Bellingham, 55 Wn. App. 706 (1989). Rather, the court found that DNR had not delayed in its efforts to produce available records and that it had no responsibility to create or produce a record that was now non-existent. See Building Indus. Ass’n of Wash. v. McCarthy, 152 Wn. App. 720, 734 (2009).
The court did, however , (by a 2 to 1 vote) determine that DNR’s failure to timely acknowledge a PRA request within 5 business days constituted an automatic violation of the PRA. That DNR responded and produced records before a lawsuit was commenced was not controlling. The court remanded the matter to the trial court to consider an award of attorney fees and penalty under former RCW 42.56.550(4).
Washington State Supreme Court Orders Disclosure of Investigative Reports Alleging Police Misconduct
Less than twenty four hours after Wednesday’s post on New Mexico’s Supreme Court’s decision on disclosure of police misconduct records, the Washington State Supreme Court issued a decision in Bainbridge Island Police Guild v. City of Puyallup, No. 823740-0. In Bainbridge Island, the Court addressed whether complaints alleging police misconduct must be disclosed under Washington State’s Public Records Act (“PRA”) even if the accusations are unfounded or unsubstantiated.
The case was brought by a citizen who alleged that a police officer sexually and physically assaulted her during the course of a traffic stop. Investigations were conducted by the cities of Puyallup (criminal) and Mercer Island (internal investigation). Each investigation found the claims to be unsubstantiated. The case garnered media attention, and several journalists and news organizations, in addition to the complainant herself, made public records requests for the investigative reports. The cities of Puyallup and Mercer Island informed the requestors that the documents would be produced absent an injunction, which the Police Guild and the implicated officer sought (though not before at least one of the reports had been released and information published by some media sources).
Subsequent records requests and demands for injunctions led to in camera review of the documents by a Kitsap County Superior Court judge, who determined that the reports should be withheld under the investigative report exception to the PRA, RCW 42.56.240(1). Injunctions were also sought against requestors in Pierce County Superior Court. That court determined that the Puyallup report could be withheld from disclosure under the personal information exemption to the PRA, former RCW 42.56.230(2) and privacy concerns under RCW 42.56.050. Injunctions enjoining disclosure of the reports were granted in King County Superior Court on the same grounds.
The Supreme Court accepted direct review. The lead opinion (4 justices) overturned the King and Pierce County decisions, which had determined that the reports could be withheld in their entirety based on privacy concerns under the PRA’s personal information exemption. Personal information is not defined in the PRA, but has been defined by the Supreme Court as “information relating to or affecting a particular individual, information associated with private concerns or information that is public and not general.” Bellevue John Does 1-11 v. Bellevue Sch. Dist. No. 405, 164 Wn.2d 199, 211, 189 P.3d 139 (2008). The Court rejected the trial courts’ determination that the reports should be withheld in their entirety, and instead instructed the agencies to produce the records, but redact identifying information (i.e. the officer’s name, social security number or other identifying data) in order to protect personal privacy interests. The Court compared the unsubstantiated allegations against police officers with the Bellevue John Does case, where the Court found the names of public school teachers who are the subject of unsubstantiated allegations of sexual misconduct are exempt from disclosure, but the underlying investigative reports (with names redacted) were subject to release. The Court also addressed the investigative records exemption to the PRA, RCW 42.56.240(1) (raised in the Kitsap County Superior Court case), and found it inapplicable, as the records are not essential to effective law enforcement. Disclosure of the records (without identifying information) was justified by the public’s “legitimate interest” in knowing how the allegations of misconduct were investigated. Opinion at 18-22; see also RCW 42.56.050.
In contrast, the concurrence/dissent (4 justices) asserted that the entire record should be released, including the officer’s name. Justice Madsen wrote that an officer’s name does not need to be redacted in an investigation or complaint against a police officer for sexual misconduct, because such allegations “in no way involve the details of one’s personal and private life.” Concurrence/dissent at 1. “Public records relating to alleged misconduct of public servants and who government agents investigate such allegations are quintessential examples of the kind of information that the PRA opens to scrutiny. The public has the right to know… .” Concurrence/dissent at 2. That opinion would hold that the exemptions raised by the Police Guild and the officer did not justify nondisclosure.
Finally, Justice Johnson wrote a lone dissent finding that the two investigative reports “fit squarely” within the PRA exemption for investigative records, thus should not be disclosed at all. He found the lead opinion to be inconsistent with Bellevue John Does.
The practical result of these decisions is that disclosure outweighs privacy concerns in the arena of public employees’ misconduct. Investigative records detailing claims of misconduct must be released and available to the public. This will likely apply across the board to all public sector employees, and will not be limited solely to law enforcement or education. Even if allegations are unsubstantiated, the record must be released, though with redaction of names or personal identifying information.
Click here for a recent Seattle Times article on the decision.
A recent Court of Appeals decision may mark the end of a decade-long saga involving a Washington county’s violation of the Washington Public Records Act (PRA). Armen Yousoufian had found earlier success with the courts and had been awarded $371,340 for King County’s failure to comply with the PRA. See Yousoufian v. Office of Ron Sims, et al., 168 Wn.2d 444, 229 P.3d 735 (2010). The most recent decision in the long line of Yousoufian decisions found that the County was responsible for post-judgment interest, retroactive to the date of the initial judgment against the County in August 2005.
The decision by the Court of Appeals is not published, and therefore is not binding precedent. However, it does provide legal framework for similar claims arising out of a PRA judgment. In addition, the Court awarded further attorney fees to Yousoufian arising from his successful appeal.
The New Mexico Supreme Court recently upheld public access to formal citizen complaints filed against police officers.
In late June, the Court denied a request for review of a lower court ruling. That decision left in place a 2010 appellate court decision which held that formal citizen complaints against police officers were public records and could be released under New Mexico's Inspection of Public Records Act (“IPRA”). Cox v. New Mexico Dept. of Public Safety, 148 N.M. 934, 242 P.3d 501 (N.M. App. 2010). The New Mexico Department of Public Safety sought to withhold the records, claiming that the citizen complaints fell under an IPRA exemption for "matters of opinion in personnel files" because the records relate to an officer’s job performance. However, the New Mexico Court of Appeals found the exemption inapplicable, finding that citizen complaints necessarily arise from an officer's role as a public servant, not the employment relationship with a public agency. The appellate court noted that internal investigation reports and employer opinions generated as a result of citizen complaints remain exempt under as “matters of opinion in personnel files.” However, the complaints themselves cannot be withheld. 242 P.3d at 507-08. The court commented that though the Department of Public Safety “is the keeper of the information contained in the citizen complaints, the information continues to belong to the citizen who made the complaint.” Id. at 507. Even if the allegations or complaints are untrue, it is not a basis for withholding information from the public. Id.
A similar debate is ongoing in Seattle, as noted in our earlier blog post. The Seattle City Attorney’s office recently appealed an arbitration decision that ordered the Seattle Police Department to stop releasing the names of officers found to have engaged in misconduct. Washington’s Public Records Act provides a strongly worded mandate for broad disclosure of public records. Exemptions are narrowly construed. See Yakima v. Yakima Herald Republic, 170 Wn.2d 755, 791, 246 P.3d 768 (2011). The City of Seattle argued that the arbitrator’s decision violates the PRA, as there is no applicable exemption that would allow withholding the names. The Seattle Police Guild argued that the “law-enforcement” exemption applies which prevents law enforcement or investigative records from public inspection and copying. See RCW 4.56.240. The case is currently pending in King County Superior Court.
“Name release” disputes arise regularly in many contexts, particularly education. In a 2008 Washington case, Bellevue John Does 1-11 v. Bellevue School District 405, 164 Wn.2d 199, 189 P.3d 139 (2008), the Washington Supreme Court held that the identities of public school teachers accused of sexual misconduct may be disclosed to the public when the misconduct is substantiated or the teachers’ conduct resulted in some form of discipline, even if only a reprimand. 164 Wn.2d. at 205. In contrast, the names of teachers who are the subject of unsubstantiated allegations are exempt from disclosure under the PRA. Id. at 212.
A Washington Court of Appeals decision demonstrates there are two ways a public records act requestor can become a “prevailing party” under the Washington Public Records Act, chapter 42.56 RCW (“PRA”). Pierce v. City of Des Moines (August 8, 2011). If the agency wrongfully withholds records and the lawsuit is reasonably necessary to obtain nonexempt records, the requester is a “prevailing party.” But as Pierce holds, under RCW 42.56.550(4), an agency can also be liable for unreasonably delaying production of records.
In Pierce, a prisoner sought certain records from the city. Des Moines did not respond with a five-day letter as required by RCW 42.56.520, but responded “more than five business days” later. Des Moines disclosed the records prior to the prisoner lawsuit but “several weeks” after the prisoner had submitted a “Tort Claim” for damages. The “Tort Claim” was submitted several months after the prisoner’s request was submitted; the prisoner claimed that his letters and calls were ignored in that intervening period.
Several months after the records were disclosed, Pierce filed a lawsuit against Des Moines. The complaint alleged that Des Moines was liable “for failing to turn over public requested records in a reasonable amount of time.” On motion for summary judgment, the city successfully argued to the trial court that Pierce could not be a “prevailing party” entitled to daily penalties and attorney’s fees under RCW 42.56.550, because his lawsuit was not reasonably necessary to force disclosure of the records. In reversing the trial court, the Court of Appeals stated as a matter of statutory construction there is a second way in which a requestor can be deemed to be a “prevailing party.” RCW 42.56.550(4) provides, in pertinent part:
(4) Any person who prevails against an agency in any action in the courts seeking the right to inspect or copy any public record or the right to receive a response to a public record request within a reasonable amount of time shall be awarded all costs, including reasonable attorney fees, incurred in connection with such legal action. In addition, it shall be within the discretion of the court to award such person an amount not to exceed one hundred dollars for each day that he or she was denied the right to inspect or copy said public record.
Prior published decisions and the model PRA rules issued by the Attorney General had not dealt directly with these points. For example, WAC 44-14-08004(7) states that “A requestor is the ‘prevailing‘ party when he or she obtains a judgment in his or her favor, the suit was reasonably necessary to obtain the record, or a wrongfully withheld record was provided for another reason.” The rule is not, of course, incorrect, but it does not specify that a requestor can “prevail” by showing unreasonable delay in records production.
An earlier case, Daines v. Spokane County, 111 Wn.App. 342, 44 P.3d 909 (2002), held that a requestor who already has records is not a “prevailing party” in an action to require disclosure of those records. But no prior published decision dealt with the question whether an unreasonable delay prior to production of records is actionable and can give rise to statutory penalties and attorney’s fees. See, WA Court of Appeals Decision in Zink v. City of Mesa Has Many Public Records Act Lessons for Municipalities, posted on this blog on July 22, 2011.
Depositions That Are Not Used in a Case - Even Those Held Before a Judge in a Courtroom - Are not Open to the Public
The Washington Supreme Court rejected an appeal from Tacoma News Tribune to see the videotaped deposition of a primary witness against a former Washington State trial judge. Tacoma News Inc. v. Cayce (July 14, 2011). [Tacoma News, Inc. v. Cayce (Dissent)]
The primary witness in the underlying criminal case had long evaded a court subpoena and was being held in jail as a material witness until he could be deposed. The prosecutors scheduled a videotaped deposition to preserve the witness testimony, fearing the witness would again disappear. The deposition was held in the Pierce County courthouse so that it would be easier for the jail guards to escort and guard the witness. At the parties’ request, Judge Cayce, the visiting judge from King County, was also present in the otherwise-empty courtroom to make rulings, if necessary, as the deposition proceeded. As it turned out, the witness did actually appear to testify, and the videotaped deposition was never offered nor produced at trial.
The criminal case involved the prosecution of Judge Michael Hecht, a sitting Pierce County Superior Court judge, who was alleged to have both solicited male prostitution and to have threatened one of them if he said anything about the judge’s interactions. Hecht was later convicted by a jury and sentenced by Judge Cayce.
The Tacoma News Tribune argued that, because Judge Cayce presided over the deposition in a Pierce County courtroom, the videotaped deposition became a public court proceeding to which the newspaper and the public had a right of access under the Washington and US Constitutions. The Washington Supreme Court, however, in a 7-2 decision disagreed. The Court held that the fact the deposition was held in a courtroom and that the judge was present to make rulings did not convert a deposition into a courtroom hearing. Depositions are normally closed to the public and never become part of the court record, unless they are used in the trial or relied on in a motion. The fact that the judge was physically present to rule on objections did not alter the fact that this was a deposition and not court testimony.
The Court found that, since the deposition never became part of the court record, it was not subject to disclosure under Article I, Section 10 of Washington’s Constitution that provides “Justice in all cases shall be administered openly and without delay.” Quoting from a prior case, the Court stated: “Article I, section 10 is not relevant to documents that do not become part of the court’s decision.”
"By Anonymous" Does Not Work Under Washington Law For Inmates Objecting to a Request for an Injunction Against Abusive Use of The Public Records Act
In the context of a public agency seeking an injunction to prohibit repeated requests for public records by an inmate of a state prison, a court is permitted to consider the identity of a person making a Public Records Act (PRA) request.
This is the heart of the opinion issued on June 21, 2011 by the Court of Appeals in Franklin County Sheriff’s Office v. Parmelee. The Court rejected the claim by an inmate of the Washington State Penitentiary in Walla Walla that his identity as an inmate could not be considered by the trial court in ruling on a motion to enjoin him from making any further PRA requests.
The Court of Appeals pointed out that when the legislature passed an amendment to the PRA (RCW 42.56.565) allowing a public agency to seek an injunction against inmates’ abusive use of the PRA process, the identity of the requestor obviously became a core issue in that process. Therefore, the trial court’s finding that it was not permitted to consider the identity of the requestor – in a situation where an injunction is sought against an inmate – was in error.
Parmelee follows previous appellate rulings in Washington, where more restrictive PRA requirements have been applied to prisoners. See, for example, our January 20, 2011 blog posting: “Prisoners Have Public Records Rights – But Not All of Them.”
The Washington Court of Appeals, in an unpublished opinion dated June 7, 2011, has once again remanded the Zink v. City of Mesa case back to the trial court. This time the remand is for the purpose of entering new findings on the amount and rationale for penalties imposed on the City of Mesa for violating Washington’s Public Records Act (PRA).
In a previous published case, Division III of the Court of Appeals had overturned the initial trial court decision that found that Mesa had substantially complied with many of the Zink’s public disclosure requests. Zink v. City of Mesa, 140 Wn. App. 328, 166 P.3d 738 (2007). In that case the Court of Appeals had emphatically stated: “We hold that ‘substantial compliance’ is an incorrect standard by which to judge an agency’s compliance with its statutory duties. We further hold that the record does not support the trial court’s determination that the Zinks unlawfully harassed the City officials or that the City met its obligations under the PDA.”
The facts of this case provide some insight into the continuing controversy. As the Court of Appeals took pains to note in both cases, Ms. Zink was both a former council member and mayor of Mesa, who after leaving office became a self-styled “watch dog” over city actions, particularly after the city improperly denied her request for a building permit. By way of additional background, it should also be noted that the 2010 census reports that the City of Mesa (located in Franklin County) has a population of 489.
Upon remand from the 2007 decision, the trial court assessed penalties and attorney fees for violating the Public Records Act totaling $246,000. Both sides then appealed the amount of the penalties and the basis on which they were adopted. In this appeal, the Court of Appeals makes detailed rulings on many of the issues on appeal, but then remands the case back to the trial court again for a new determination of penalties based on the 16-factor test (7 mitigating factors and 9 aggravating factors) set out in the State Supreme Court’s intervening decision in Yousoufian v. Office of Ron Sims, 168 Wn.2d 444, 229 P.3d 735 (2010).
One of the individual rulings in the unpublished decision highlights an important aspect of Washington’s Public Records Act. That is, a government is under no obligation – under the PRA – to produce documents that do not exist. The Zinks sought penalties under the PRA for the failure of the city to produce minutes of meetings that the city was required under a statutory obligation to prepare. But the Court rejected that claim. “Mesa admittedly violated separate statutes requiring it to prepare draft minutes of the Board meetings for public review. RCW 35A.39.010 RCW 42.32.030. But the PRA does not state that an agency’s violation of independent statutory duties to prepare records is a violation of the PRA.”
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.
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.
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.
Customs' Notice of Seizure May be Redacted Under "Trade Secrets" Exemption to FOIA - But Not After Disclosure to Third Party
The federal Freedom of Information Act (“FOIA”) contains nine exemptions. Under the exemptions, the government can withhold information that might otherwise be available for disclosure. See 5 U.S.C. § 552(b)(1)-(9). FOIA “Exemption 4” applies to “trade secrets and commercial or financial information obtained from a person and privileged and confidential.” In a recent decision, the 9th Circuit Court of Appeals applied Exemption 4 to Notices of Seizure issued by the United States Bureau of Customs and Border Protection (“CBP”) to an importer of merchandise potentially infringing on a U.S. trademark.. CBP had heavily redacted the Notices of Seizure in responding to a FOIA request.
For application of Exemption 4, the 9th Circuit requires a government agency to demonstrate the information to be withheld is “(1) commercial and financial information, (2) obtained from a person or by the government, (3) that is privileged or confidential.” (Watkins v. U.S. Bureau of Customs and Border Protection, No. 09-35996, 5/6/11). The Court found that the Notices contained “plainly commercial information, which discloses intimate aspects of an importers business such as supply chains and fluctuations of demand for merchandise.”
But, under a separate statute, Notices must be disclosed to a trademark owner that may be aggrieved by the purported violation by the importer.
When disclosure is made to a trademark owner, the government imposes no restriction on the owner’s use of the information in the notice. He can freely disseminate the notices to his attorneys, business affiliates, trade organizations, the importer’s competitors, or the media in a way that would compromise the purportedly sensitive information about an offending importer’s trade operations. This no-strings-attached disclosure thus voids any claims to confidentiality and constitutes waiver of Exemption 4. FOIA accordingly creates an obligation for the government to disclose the requested documents.
In addition to other specific exemptions from disclosure, the Washington Public Records Act contains a similar provision that allows an agency to withhold “financial, commercial and proprietary information.” R.C.W. 42.56.270. That exemption from disclosure also includes:
proprietary data, trade secrets, or other information that relates to: (a) A vendor’s unique methods of conducting business; (b) data unique to the product or services of the vendor; or (c) determining prices or rates to be charged for services [for certain social and health services and health care activities].
The Uniform Trade Secrets Act, Ch. 19.108 RCW, also provides exemptions from disclosure under the Public Records Act through the “other statute” provisions of RCW 42.56.070(1) (formerly RCW 42.17.260(1)). Progressive Animal Welfare Soc’y v. University of Washington, 125 Wn.2d 242, 262, 884 P.2d 592 (1994).
In a decision issued on May 16, 2011, the United States Supreme Court examined the meaning of the term “report” under the Freedom of Information Act (“FOIA”). (Schindler Elevator Corp. v. United States ex rel. Kirk, No. 10-188, 2011).
The case arose when Daniel Kirk, a Vietnam veteran, sued his former employer, Schindler Elevator, under the federal False Claims Act. He asserted that Schindler, a government contractor, had submitted false claims by failing to file Vietnam Veterans Act reporting forms that were required under Schindler’s government contract. Kirk had confirmed the lack of Vietnam Veterans Act reporting through a FOIA request.
The False Claims Act, however, has a “public disclosure bar.” 31 U.S.C. § 3730(e)(4)(A). That bar precludes a whistleblower suit based on information (including reports) obtained through a FOIA request. The Supreme Court reversed the Second Circuit Court of Appeals and rejected an argument that the word “report” should receive a narrower meaning than simply “something that gives information.” The Supreme Court looked to the ordinary meaning of the word “report.” Citing dictionary definitions, the Supreme Court defined the term to include “something that gives information,” a “notification,” and “[a]n official or formal statement of facts or proceedings.” As a result, the disclosure of public records in response to a FOIA request constitutes a “report” and a False Claims Act case cannot be maintained based upon such a disclosure.
In another of a series of prisoner Public Records Act (PRA) requests in the State of Washington, a Court of Appeals has affirmed the trial court’s denial of a prisoner’s claims that (1) he should be able to review documents to see if there are none, and (2) he should be able to have the medical records of his victim. Simpson v. Okanogan County (unpublished opinion). (See previous 2011 blogs relating to prisoner related public records requests posted on January 20 and January 28.)
In his request from prison, Simpson asked for the records on his case from the prosecutor’s office, including the medical records of his victim. In addition, he asked for the personnel file of the elected Okanogan County prosecuting attorney; and, for the records of any insurance obtained by the County for the prosecutor. In response, the County provided Simpson with his criminal file. But, the County withheld the medical records of his victim; stated that the County had no personnel file for the elected prosecutor; and, that it had no documents relating to insurance for the prosecutor. When Simpson sued to challenge both the withholding of medical records and the denial of documents, the trial court granted summary judgment to the County, and the Court of Appeals affirmed.
Although this is an unpublished opinion, the Simpson decision cites useful Washington precedent related to the two issues noted above:
(1) A declaration that, “Yes, we have no documents,” is conclusive.
“An affidavit stating that a record does not exist is dispositive on a PRA claim; there is no right to personally inspect records to confirm that no record exists. Sperr v. City of Spokane, 123 Wn. App. 132, 136-137, 96 P.3d 1012 (2004).”
(2) Health care records are generally exempt from disclosure under the PRA.
“The exemption for patient health care records is assessed in accordance with the standards of chapter 70.02 RCW, which is incorporated into the PRA by RCW 42.56.360(2). Prison Legal News, Inc. v. Dep’t of Corrections, 154 Wn.2d 628, 644, 115 P.3d 316 (2005). In turn, RCW 70.02.020(1) generally prohibits disclosure of health care information without the patient’s consent. In turn ‘health care information’ is defined in relevant part by RCW 70.02.010(7) as ‘any information . . . that identifies or can readily be associated with the identity of a patient.’ . . . Mr. Simpson knew very well whose information he was requesting – the only health care information that was relevant to his criminal case. Blacking out his victim’s name would not disassociate the records from a particular known person.”
Tennessee Supreme Court: Public University Faculty Non-Profit Corporation Is Not An "Agency" Under Public Records Act
A group of internists at the University of Tennessee College of Medicine (UTCOM) organized as a tax-exempt, non-profit corporation, identified as the Internal Medicine Educational Foundation (IMEF). The purpose of IMEF is to "provide educational programs, research and support services for the internal medicine residency program" at UTCOM. When the IMEF refused plaintiff's request for records, plaintiff sued under the Tennessee Public Records Act. Like Washington State, Tennessee applies its PRA to those agencies described by the law and to entities that are the "functional equivalent of a government agency." Functional equivalency is determined by certain factors:
(1) whether the entity performs a governmental function;
(2) the extent of government funding;
(3) the extent of government control over the entity; and
(4) whether the entity was created by legislative act.
Those factors are then applied under a "totality of the circumstances" test to determine if the entity is the functional equivalent of an agency. Applying the factors, the Tennessee Supreme Court on February 28, 2011 found that IMEF was not the functional equivalent of an agency. As a result, IMEF was not subject to that state's PRA.
Washington's Public Records Act, at Chapter 42.56 RCW, similarly may be applied to an entity when found to be the functional equivalent of an agency. See Telford v. Thurston County Board of Commissioners, 95 Wash.App. 149, 974 P.2d 886 (1999). In Telford, the Court of Appeals held that while the Washington State Association of Counties (WSAC) and the Washington Association of County Officials (WACO) were not agencies as such, they were the “functional equivalent” of agencies and therefore subject to the campaign finance provisions of the Washington Public Disclosure Act. The court in Telford did not address the separate provisions of the Public Disclosure Act relating to public records (now, the Washington Public Records Act). And, the decision did not address other entities similar to WSAC and WACO.
In 2002, the Washington Attorney General issued a formal opinion in response to an inquiry regarding the Association of Washington Cities (AWC) and other organizations. See AGO 2002 No. 2 (April 10, 2002). In that formal Opinion, the Attorney General examined whether entities whose membership includes public agencies were separately subject to the Public Records Act. The opinion examined the Telford analysis (factors similar to those applied by the Tennessee Court), but concluded that any application of the statute to “AWC in a public records context must await the development of an actual factual situation to which the principles set forth in the statute, as interpreted in Telford, might be applied.”
Subsequent Washington cases have reached divergent results, based primarily on the extent of an entity's government funding and governmental authority. For example, in Spokane Research & Defense Fund v. West Central Community Dev. Ass’n, 133 Wn. App. 602 (2006), the court found that a contract vendor in a city park was not the functional equivalent of a public agency. But, in Clarke v. Tri-Cities Animal Care and Control Shelter, 144 Wn. App. 185 (2008), the court found a non-profit entity providing enforcement of animal control laws under contract with city and county governments was the functional equivalent of an agency.
The March 30 edition of the New York Times reports that a research group in Michigan has made a public records request of the University of Michigan, Michigan State University and Wayne State University for any e-mails involving the Wisconsin labor turmoil, including any e-mails with reference to Rachel Maddow – the MSNBC talk show host.
Greg Schulz, the director of academic freedom for the American Association of University Professors is quoted as asserting “We think this will have a chilling effect on academic freedom. We’ve never seen FOIA requests used like this before.”
In the State of Washington, however, the issue of academic freedom v. freedom of information has long been decided in favor of the freedom of information. In 1994 the Washington Supreme Court held that documents regarding research proposals for primate experiments that didn’t fall within specific statutory exemptions were subject to disclosure under the State’s Public Records Act – despite the contention of the University of Washington that academic freedom protected those records from disclosure. Progressive Animal Rights Society (PAWS) v. University of Washington, 125 Wn.2d 243, 884 P.2d 592 (1994).
In PAWS, the Washington Supreme Court directly addressed the University’s argument that “the grant proposal should be exempt in its entirety because disclosure of a researcher’s preliminary ideas violates a putative constitutional privilege of academic freedom.” Rejecting that argument, the Court held that neither the popular initiative that first adopted Washington’s Public Record Act nor the legislature in later amendments had created an exemption from the Public Records Act for academics. Further the Court noted that, “Even assuming there were plausible grounds for doing so, it would be difficult to grant special First Amendment protection to public university employees while denying it to other state employees.”
On the other hand, both the trial court and the Supreme Court held that information in the proposal that would reveal research hypothesis, data, valuable formula and the like should be redacted from the documents as they are covered by exemptions to the Public Records Act. The Court also excluded the peer review “pink sheets” from disclosure, as they were documents reflecting a deliberative process for an unsuccessful proposal and thus exempt under the “deliberative process” exemption. But, the Court also noted “Once the proposal becomes funded, it clearly becomes ‘implemented’ for purposes of this exemption and the pink sheets thereby become disclosable.”
On March 29, 2011, Division II of the Washington Court of Appeals held that a city is entitled to conduct discovery in a case the city initiated against a records requestor to affirm the City’s interpretation of the Public Records Act (PRA). But the court found the city’s interrogatories about the requestor’s past litigation history were improper. City of Lakewood v. Koenig.
Koenig, a regular requestor under the Washington Public Records Act, had requested documents from the City of Lakewood related to alleged wrongdoing by three police officers. The City provided information but redacted driver’s license numbers of officers, victims and eyewitnesses. When Koenig did not respond to a request from the City asking if he felt the documents provided were adequate, the City started a lawsuit under RCW 42.56.540 to confirm the validity of the City’s redactions.
When Koenig was served with interrogatories and requests for production, he resisted any questions relating to his past litigation history. He argued that those discovery requests were improper as not allowed by the law. Additionally, the City had no discovery rights in a PRA case the City itself had initiated, because the identity or background or any other information about a requestor has no bearing on document disclosure issues. The Court, however, affirmed that the discovery process is available to the City in this, as in any other case (unless an exception exists under statute or court rule). Since the PRA is not listed as a proceeding barred from discovery under court rule or statute, the City was entitled to conduct otherwise proper discovery.
But, the Court ruled, the City is not entitled to look into the litigation history of Koenig. The City asserted that Koenig was a well-known PRA requester and had a history of waiting until the last day before the statute of limitations ran before filing suit as a strategy to increase eventual penalties. The Court, however, found that the City’s perceptions had no bearing on the nature of the documents or on the ultimate penalties for non-disclosure. In fact, the Court explicitly held that waiting to file a lawsuit until the last day of the statute of limitations for PRA requests was within the right of any litigant, including Mr. Koenig, whatever that litigant’s objectives. On the other hand, the Court did acknowledge that there could be legitimate issues in discovery regarding economic losses of the requestor that might be caused by delay or by incomplete responses of the public agency, as those losses could later affect the amount of penalties for non-disclosure.
Because the City won on the issue of discovery, and Koenig won on the issue of specific interrogatories, the Court ruled that neither party was entitled to fees, especially as the underlying issue of redacting the driver’s license numbers had yet to be decided. One judge dissented, but only on the issue of whether Koenig should have received attorney’s fees under CR 26(c) for having successfully blocked a part of the City’s discovery request.
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.”
Pennsylvania County Must Disclose Contractor's Employment Records - Even Though County Doesn't Have Them
Allegheny County, Pennsylvania contracts with hundreds of service providers. One of those contracts is with A Second Chance, Inc. (ASCI), where ASCI evaluates an individual’s qualifications to provide foster care to dependent children. A Pittsburgh television station requested that the County provide the “names, birth dates and hire dates of all employees” of ASCI who provide services to the County. Not surprisingly, the County said that those records were not available to the County and they rejected the television station’s request under the Pennsylvania Right-To-Know-Law (RTKL). Without explaining how the County should get the records, the Commonwealth Court of Pennsylvania (a court whose jurisdiction is generally limited to legal matters involving State and local governments and regulatory agencies) held that the employment records of ASCI were “public records” and accessible under the RTKL. It is unclear what process would be used under the RTKL by a local government to recover such records from a contractor.
In Washington, a contracting agency that provides governmental services is generally considered an agency and subject to the Washington Public Records Act. Clarke v. Tri-Cities Animal Care & Control Shelter, 144 Wn. App. 185 (2008). In the most common situation, the request would be made directly to the contracting agency (in Pennsylvania, ASCI). But in the event a request is not made directly to the contracting agency, but instead to the local government, the local government must either recover the documents from the contractor or maintain a separate court action to protect the local government from liability under the Public Records Act. See, e.g., City of Federal Way v. Koenig, 167 Wn.2d 341 (2009), discussed in the October 23, 2009 posting on this site: “WA Supreme Court Re-Affirms that Public Records Act Does Not Apply to the Judiciary.”
In Washington, as in Pennsylvania, the fact that an agency subject to the Washington Public Records Act does not possess a document does not necessarily preclude agency responsibility for producing a public record. See Concerned Ratepayers v. PUD No. 1, 138 Wn.2d 950 (1999) (design specifications for power plant prepared by PUD’s contractor, but not in possession of PUD, required to be disclosed).
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.”
Following up on my January 20 blog post, the Washington Court of Appeals in an unpublished opinion has denied another request for public records by an inmate of the state prison system. Fisher v. Dept. of Corrections, January 24, 2011. Read opinion here.
Fisher, an inmate of Washington’s Monroe Corrections Complex, alleged that a fellow inmate had assaulted him in the prison law library. To support this allegation, Fisher asked for surveillance tapes of the library. The Department refused, citing RCW 42.56.240(1) which exempts “specific intelligence information compiled by . . . penology agencies. . . the nondisclosure of which is essential to effective law enforcement.” The Department argued that the tapes, if disclosed, could allow the prisoners to learn the capabilities and the limitations of the prison’s extensive camera surveillance system, and thereby “allow inmates to determine weaknesses and exploit those weaknesses by assaulting other inmates or committing crimes and prison infractions.”
The Court of Appeals found the unrefuted affidavit of the Department’s director of prisons division persuasive, and determined that “Intelligence information provided by video surveillance systems therefore falls squarely within the core definition of ‘law enforcement.’” The nondisclosure of the surveillance tapes was thus found by the Court to be “essential to effective law enforcement."
Public records act requests by prisoners have long been an issue for jail administrators and for the courts. Creative gaming of public records act requests by prisoners has bedeviled both.
While the State of Washington’s courts have liberally applied the reach of public records act requests, both the legislature and the courts have imposed limitations in the area of prisoner requests. In 2009, the Washington legislature amended the state’s Public Records Act expressly to allow for an injunction against repeated or abusive public records act requests by prisoners under specified circumstances. RCW 42.56.565.
On January 19, 2011, Division II of the Washington Court of Appeals issued an opinion which confirmed the validity of Department of Corrections’ rules restricting the ability of prisoners to personally inspect most public records – rather than receive copies at the prisoner’s expense. Gronquist v. [Washington] Dept. of Corrections.
In Gronquist, the Court of Appeals upheld Department rules that allow a prisoner to personally inspect only his or her central file or medical file. Otherwise, a prisoner is required to pay $0.20 per page plus postage for photocopies of any requested documents that will then be mailed. The Court ruled that the general rule allowing a requestor to either inspect public records in person or obtain copies (or both) does not necessarily apply to a prisoner whose rights are already constrained. The Court recognized the broad reach of the Public Records Act, but also recognized the countervailing need of the Department of Corrections mandate to manage prison inmates. Accordingly, if a prisoner refuses to pay for copies, the Department is not obligated to provide the requested records or to allow for personal inspection of the records at no charge. This decision follows an earlier opinion by Division III of the Washington Court of Appeals which adopted the same principle. Sappenfield v. Dept. of Corr., 127 Wn. App. 83, 110 P.3d 808 (2005), review denied, 156 Wn.2d 1013.
In a 9-0 decision, the Washington Supreme Court upheld rejection of a public records request for court records in a court’s possession, once again reaffirming long-standing case law. The decision in Yakima County v. Yakima Herald-Republic, Case No. 82229-8 (January 13, 2010) also remanded the case for potential disclosure of similar records held outside of the court by other agencies.
The Yakima Herald-Republic filed public records requests regarding funding the defense of two indigent criminals charged with first-degree murder. The newspaper made its requests to both the Yakima County Superior Court and several outside agencies who had involvement with paying the defense expenses . These requests were made after the newspaper had sought to have the court provide the records, which the case judges had “sealed,” preventing disclosure of documents under the court administrative rules.
Washington courts have, since at least 1986, repeatedly rejected argument that courts are “agencies” subject to Washington’s Public Records Act, Chapter 42.56 RCW. See, Nast v. Michels, 107 Wn.2d 300, 730 P.2d 54 (1986). The newspaper tried to distinguish the Yakima case from the Court’s precedent by arguing that financial aspects of the case were merely administrative. While this argument would seem to be unremarkable, the newspaper urged that the defendants had two judges assigned, one to handle the financial matters and one to try the case. Because the financial matters were separate from the actual court proceedings, the financial documents should be disclosed.. (Many states, including Washington, require attorneys for indigent defendants to obtain court authorization for investigation and expert witness costs.)
The newspaper also called the judicial approval of indigent defense expenditures “curious,” but the Court succinctly rejected the newspaper’s public records argument as “without merit.” The Court went on to note that judicial approval of defense funding is provided for in both the federal and Washington rules on criminal procedure; dividing judicial responsibilities in potential capital cases is common (even required in California); and, indigent defense funding is still a judicial issue even if handled by a second judge.
For court documents that had been provided to outside agencies, the Court ruled that the Public Records Act applies and that the agencies should have complied with the PRA. The Supreme Court ordered that the trial court would first need to review the materials in question to determine if the trial court had forwarded the documents to the outside agencies with a protective order or other instructions “sufficient to retain their character as judicial documents” or if a PRA exemption to disclosure applies. These outside agencies may be subject to the PRA daily penalties (for delay in disclosing records) if the trial court finds they were not protected by court order and should have been disclosed.
The Association of Washington Cities, a non-profit organization, has reported on potential bills to be considered in the upcoming legislative session. In working with other local government groups, bills have been developed that would allow agencies to charge the actual personnel costs exceeding five hours of staff time per month on a request. A second bill would provide for a voluntary conference between an agency and a requestor before any court action could be filed. If a conference is not accepted, a court may reject daily penalties upon finding a violation of the Public Records Act. These bills are in addition to proposals from the Washington Attorney General, including one that would establish an Office of Open Records. The Attorney General’s proposal would provide for resolution of public records disputes through the State’s Office of Administrative Hearings, rather than through the courts. See, “McKenna: Rein in prisoners’ use of Public Records Act” from The Spokesman-Review.
In our posting on November 18, 2010, we noted the reported complaint by a Sumner City Councilmember against the City's mayor and others. The claim arose from comments adverse to the councilmember made in an open, public meeting of the Sumner City Council. The councilmember asserted that the use of public city council meetings for such political comment was a violation of law. With limited exceptions, Washington law prohibits the use of public property and resources for political purposes. See RCW 42.17.130. The Tacoma News Tribune has now reported that the Councilmember's allegations have been rejected by the State's Public Disclosure Commission.
The Everett Herald reported today that the City of Monroe had agreed to pay over $150,000 to settle a five-year old dispute involving disclosure of public records. According to the Herald, the claimant spent approximately $115,000 in attorney fees to litigate this drawn-out dispute.
The subject of the request was e-mail traffic from and to City officials regarding City Council meetings in March 2005. The City, however, refused to provide unredacted e-mail messages from the home computers of various council members, citing privacy protection exemptions in the Public Disclosure Act. The City also claimed that it was not required to provide electronic copies of the e-mail records.
The City won in Superior Court, but lost in the Court of Appeals Mechling v. City of Monroe, 152 Wn. App. 830, 222 P.3d 808 (2009). The Court of Appeals held that e-mails are “records” – even on a home computer - under Washington’s Public Records Act. The City bears the burden to demonstrate why it could not produce electronic copies of those e-mails, if requested. Indeed, since the Mechling decision in 2009, the Washington Supreme Court has ruled that even the “metadata” contained in electronic e-mails is a public record and must be produced when requested. O’Neill v. City of Shoreline, ___Wn.2d___, 240 P.3d 1149 (October 7, 2010).
The Court of Appeals in Mechling also ruled that e-mail and the home e-mail addresses of council members who sent e-mail messages about City business from their home computers was not protected by the privacy exemptions of the PDA. First, the Court noted that the council members had themselves made those e-mails subject to public disclosure by using their home computers for City business. Second, the Court stated that the privacy protections apply to information in a personnel file, not to information found on business e-mails.
The Mechling case serves as yet another reminder that when elected officials use their home computers for government business, those records – including their home e-mail addresses – become subject to public disclosure.
The Dallas Morning News sought payroll data from the State of Texas. The Texas Comptroller responded with detailed information, including name, age, race, sex, date of initial employment and pay rates. But the Comptroller withheld the employees’ birth dates. The Comptroller then asked for the opinion of the Texas Attorney General, who concluded that the date of birth information could be disclosed.
An action commenced and the trial court and Court of Appeals agreed with the Attorney General. On December 3, 2010, the Supreme Court reversed, holding “a disclosure of state employee birth dates would constitute a clearly unwarranted invasion of personal privacy and therefore exempted from disclosure” under the Texas public disclosure law.
In its consideration, the Supreme Court made specific reference to the public harm caused by identity theft and that the availability of birth dates may facilitate identity theft. The Texas Supreme Court noted other decisions, particularly court decisions under the Federal Freedom of Information Act, that “birth dates implicate substantial privacy interests.”
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.”
A divided Pennsylvania Supreme Court has told the Philadelphia City Council that under Pennsylvania’s Sunshine Law, the City Council – as a whole – must allow public comment on pending legislation. [Alekseev v. City Council of City of Philadelphia, 2010 WL 4643724] The Pennsylvania Supreme Court overturned a long-standing policy in Philadelphia where Council committees, instead of the Council as a whole, scheduled and received public testimony on pending legislation. The Court found that “simply because committees fall within the definition of ‘agency’ does not mean that they may be substituted for a particular body (a board or council) accorded a specific responsibility (entertaining public commentary) by the Legislature under the Sunshine Act.”
The three dissenters on the seven-member Court found that not only that there was no doubt the General Assembly was aware of Philadelphia’s long-standing, preexisting practice of receiving public comment in special meetings conducted by Council committees, and sought to preserve it, but that testimony at the committee level was more effective. “In this case, and consistently with the practice in Philadelphia for over half a century, appellants were allowed to provide input to the committee in advance of the Council meeting at which the bill was passed, so it appears they actually had a more realistic opportunity to participate in shaping the legislation, rather than speaking at the very meeting where the vote was taken.”
In contrast, Washington’s Open Public Meetings Act explicitly references the fact that testimony may be taken at committee meetings. RCW 42.30.020(2) defines “Governing body” to include “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.” (Emphasis added.)
In fact, a committee or other subsidiary body created by the full council or commission in Washington is required to observe the Open Public Meetings Act and allow testimony to be given in public. In 2001, for example, the City of Lakewood’s adult cabaret ordinance was held invalid because a Planning Advisory Board created by the City Council took testimony about the proposed ordinance in closed door sessions. Clark v. City of Lakewood, 259 F.3d 996, (9th Cir. 2001).
There is, however, always a balance between allowing for public testimony and the need for efficiency and decorum. See, Steve DiJulio’s article: “Balancing the Council’s Right to Manage Meetings With Expectations of Citizens.”
A unanimous panel of the Washington Court of Appeals, Division II, ruled that the Washington State Patrol’s police traffic collision reports were not protected by federal law and had to be turned over to a citizen requesting accident reports for a specific location. Gendler v. Batiste, et al., Case No. 39333-6-II (Wash. Ct. App., Div. II, Nov. 24, 2010). The requester, Michael “Mickey” Gendler, suffered a devastating spinal-cord injury while biking across Seattle’s Montlake Bridge, leaving him a quadriplegic. The front wheel of Gendler’s bike wedged in a wide gap on the bridge and he was thrown head-first over his handlebars. After Gendler learned that other bicyclists had “similar debilitating accidents” on the Montlake Bridge, he made a public records request to the State Patrol for “all police reports relating to collisions involving bicycles on the Montlake Bridge in Seattle (SR 513).”
The State Patrol would only provide records if Gendler was able to identify the person involved and the collision date, while also telling Gendler that it did not maintain reports by location. Gendler found he could obtain specific records from the State Patrol’s website, but only after certifying that he would not use the records in a lawsuit against the State. In a separate action, Gendler sued the State over his injuries and that case recently settled.
The Court of Appeals agreed with the the trial court, holding that the State Patrol cannot hide behind a memorandum of understanding (“MOU”) with the State Department of Transportation (“WSDOT”) and WSDOT’s federal privilege under 23 U.S.C. §409, barring use of collision data in lawsuits. The federal privilege is intended to allow WSDOT to compile and analyze accident data to better implement highway safety measures funded by the federal government without concern that such analysis would be used to support lawsuits against the State.
Although WSDOT has physical custody of the accident records based on the MOU, they are still State Patrol records and subject to disclosure if the State Patrol cannot show an appropriate exemption. While the State Patrol’s reports do provide information for WSDOT’s federally exempt accident tracking and analysis, WSDOT’s exemption does not bar disclosure because the State Patrol collects its accident information for other non-exempt law enforcement investigation purposes. Accordingly, the Court upheld the trial court's order requiring the State Patrol to produce the requested reports without limitation, e.g. the waiver of lawsuit rights that the State Patrol sought for Gendler to receive the requested records.
Alabama Supreme Court Finds Health Care Authority Subject to the Open Records Act and Hospital Bid Materials Subject to Disclosure
The Alabama Supreme Court recently ruled that a public corporation (“Health Care Authority”) that owned several hospitals was a “local government entity” and therefore subject to the state’s Open Records Act. Tennessee Valley Printing Company, Inc. v. Health Care Authority of Lauderdale County and the City of Florence, --- So.3d ----, 2010 WL 4272678 (Ala.). Despite the Health Care Authority’s protestations, the Court found that the corporation’s assets had been accumulated through use of statutorily-authorized governmental powers, including eminent domain and issuance of tax-free bonds, and that the corporation could not sell substantially all of its assets without prior approval of an authorizing government subdivision.
Promising confidentiality to bidders, the Heath Care Authority invited bids to acquire Authority hospitals. The Court found that the documents relating to the final sale of the hospitals, including bids and a letter of intent from the winning bidder, could be disclosed under the Alabama Open Records Act. The Court noted that, “a private party cannot render public records exempt from disclosure merely by designating information it furnishes a governmental agency confidential. The right to examine these records is a right belonging to the public; it cannot be bargained away by a representative of the government.” The Court then rejected the Health Care Authority’s two proposed exemptions, finding that the exemption for recorded information received by a public officer in confidence was inapplicable, as was the exemption for records which, if disclosed, would be detrimental to the best interest of the public.
Washington’s Public Records Act (“PRA”) does not have a general exemption for bid materials. And, there is no Washington case law interpreting this issue. However, it is likely that Washington courts would come to the same conclusion as the Alabama Supreme Court. Confidentiality is not a stand-alone exemption, and bidders cannot rely on that designation to prevent disclosure of their materials. See WAC 44-14-06002 (codifying the Washington State Attorney General’s Model Rules on Public Disclosure). To prevent disclosure, records must fall under a specific PRA exemption category, such as “trade secrets” (or other statutory provisions that may limit disclosure of contract proposals). And, if portions of a record fall under one of the statutory exemption categories, an agency may still release the record with redactions.
In a unanimous decision, the Washington Supreme Court again came down in favor of expansive public records disclosure and narrow reading of exemptions from disclosure, this time in the realm of investigation records during pending criminal trials. Among the public records at issue in Seattle Times Co., et al. v. Serko & Chushcoff, et al., Case No. 84691-0 (Nov. 18, 2010) were materials gathered during the Pierce County Sheriff’s Office investigation of the Maurice Clemmons police killings. In 2009, Clemmons shot and killed four Lakewood police officers, then evaded law enforcement with assistance from his friends and family before being killed himself by a Seattle police officer. Soon after, criminal proceedings began against Clemmons’ alleged accomplices.
The Seattle Times and others requested records related to the Clemmons investigation from the Sheriff, which he intended to release. The criminal defendants sought to stop the Sheriff from producing “any and all” records responsive to the requests, claiming the records were exempt “because their production would impair their right to a fair trial.” More specifically, the defendants argued that release of the materials would result in media coverage that could taint the future jury pool. Ruling for the defendants, the trial court relied on RCW 42.56.540, which allows the superior courts to enjoin disclosure of a public record if doing so “would clearly not be in the public interest and would substantially and irreparably damage any person… or vital government functions.”
The Supreme Court, however, vacated the trial court’s order and reaffirmed its previous holding that RCW 42.56.540 is a procedural provision allowing for injunctive relief to enforce records release exemptions, but does not otherwise provide any specific exemption. See Progressive Animal Welfare Soc'y v. Univ. of Wash., 125 Wn.2d 243, 257, 884 P.2d 592 (1994). The Court allowed that fair trial rights may sometimes be a basis for suppressing records, but that in this context the withholding must be analyzed like any other precautionary measure aimed at issues regarding pre-trial publicity, e.g. change of venue or a gag order. But the defendants had to show a probability of unfairness or prejudice from pre-trial publicity. And then the trial court would need to inquire into other alternatives to suppression and “find with particularity” that it is more probable than not that unfairness or prejudice would result from disclosure. The trial court’s order here was not particular regarding resulting unfairness or prejudice and did not consider alternatives, so the Court found the order suppressing records had no proper basis.
Beyond this main holding, the Court discussed several other public records issues:
- Writs of mandamus remain a proper tool for third parties seeking disclosure of information related to a criminal trial because intervention is unavailable. But the Court acknowledges that Washington’s rule may be out of step with other states that allow direct third-party intervention in criminal cases for the purpose of information gathering.
- The Court rejected the criminal defendants’ theories that the work-product privilege extends from the prosecutor’s office (from which records were not requested) to the law enforcement agency (from which records were requested). Police are not merely the investigatory arm of the prosecutor. Work-product only includes material prepared by the attorney, not prepared on behalf of the attorney.
- The PRA exemption for law enforcement investigative records exemption, RCW 42.56.240, has limited application, generally covering only the time before a suspect has been arrested and the matter has been referred to the prosecutor.
In State ex rel. Bardwell v. Cuyahoga County Board of Commissioners, 2010 WL 4260674 (Oct. 26, 2010), the Ohio Supreme Court (by 5-2 vote) upheld an award of sanctions to a county and against a public records act (PRA) requester who filed a law suit one day after submitting public records act requests to a county prosecutor. The Court of Appeals had sua sponte ordered requester to show cause why sanctions under the court rules (CR 11) should not be awarded, and then awarded sanctions. 2009 WL 3387654. The Supreme Court affirmed the award of sanctions.
Bardwell, the public records act requester submitted three requests, one for the prosecutor’s document retention schedule; one for correspondence between the Cuyahoga County Board of Commissioners and a local newspaper; and, the third for drafts of an economic development agreement involving the county and private developers. The records-retention schedule was provided the same day; and the next day the prosecutor provided to Bardwell the correspondence with the local newspaper. The prosecutor also (again, one day after the request was received) informed Bardwell in writing that drafts of contracts were not subject to disclosure, and advised: “When an agreement is finalized and ready to be submitted to the Board of County Commissioners for approval, the final agreement and drafts will be made available.”
The court of appeals decided that “Bardwell’s filing of a complaint for mandamus, which was groundless in fact and legal argument, can only be the result of a willful action and constitutes bad faith. Thus, we find that Bardwell consciously violated [Court] Rule 11 and that sanctions must be imposed.” The Supreme Court affirmed, holding that the court of appeals did not abuse its discretion in awarding the sanctions. The Court noted ten reasons justifying the sanctions, including: (1) the fact that the complaint was filed one day after the records were in fact provided; not supported by a sworn affidavit as required by local rule; and, not amended after additional documents were provided; (2) all non-exempt records were promptly provided, mooting the records claim; (3) Bardwell did not provide for a transcript of the Rule 11 hearing, or submit exhibits, so there was literally nothing for the court to use as a basis to overturn the lower court’s discretionary decision; and,(4) Bardwell failed even to file a brief in opposition to the prosecutor’s motion for summary judgment, yet appealed the summary judgment ruling.
The lengthy dissent notes that grounds existed as a matter of law for the complaint; as drafts of contracts are not necessarily exempt from public disclosure.
The attached news report from Port Angeles illustrates the problems of forgetting that joint agencies created by a combination of local governments are generally subject to the Open Public Meetings Act, to the same extent as the founding agencies themselves. Port Angeles pool director choice to be a 'do-over; Open Meetings Act is factor
In this case the board of a Pool District acted to hire a new director in a closed session after interviews. The Pool District was created by the City of Port Angeles and Clallam County The District Board apparently overlooked the Open Public Meetings Act (Chapter 42.30 RCW; “OPMA”) when it did so. The solution was to dry off, step back from the edge and dive anew into the hiring process – this time in public.
This circumstance serves as a needed reminder that new, combination agencies created by public agencies are also governed by the Open Public Meetings Act. While the definition section of the OPMA (RCW 42.30.020) does not specifically include an agency created by two or more public agencies, it does include language that covers “[a]ny subagency of a public agency which is created by or pursuant to a statute, ordinance or other legislative acts. . . .” RCW 42.30.020(c).
Washington courts have broadly interpreted both the OPMA and the Public Records Act (Chapter 42.56 RCW), as the legislation for both acts directs. An example of the breadth of this interpretation is Telford v. Thurston County Board of Commissioners, 95. Wn. App. 149, 974 P.2d 886 (1999). In Telford, the Court of Appeals held that the Washington Association of Counties and the Washington Association of County Officials were both public agencies for purposes of the Campaign Finance part of the Public Records Act. This case gave rise to what has come to be know as the “Telford test” for determining what is a public agency: (1) whether the entity performs a public function; (2) the level of government funding; (3) the extent of government involvement or regulation; and (4) whether the entity was created by government.
Here, the Pool District meets each of those four parts of the “Telford test.” [See, for example, Clarke v. Tri-Cities Animal Care & Control Shelter, 144 Wn. App. 185, 181 P.3d 881 (2008), applying the “Telford test, to hold that the Animal Shelter – even though a privately run corporation – was a public agency for purposes of the Public Records Act.] The OPMA therefore applies to the Pool District, and a public reconsideration of the District’s hiring decision was the right thing to do.
Metadata is the new worry of public disclosure requests. Within the hard drive of any standard computer, a host of metadata is created with each underlying electronic document. Metadata describes the document’s history, tracking and management.
At least in Arizona and Washington that metadata is now also subject to a public disclosure, along with the underlying document itself, when requested. A recent Phoenix Law Review article analyses this proliferating phenomenon. David W. Degnan, Accessing Arizona’s Government: Open Records Requests for Metadata and other Electronically Stored Information after Lake v. Phoenix, 3 Phoenix L. Rev. 69 (2010).
Lake v. Phoenix, 222 Ariz. 527, 218 P.3d 1004 (2009), involved a request by a demoted City of Phoenix police officer, attempting to show through documents’ metadata that comments about his performance were backdated to conceal retaliation for his whistleblowing activities. The Arizona Supreme Court held that this metadata (showing the creation and history of the documents) was a public record and must be disclosed. In Washington, the State Supreme Court arrived at the same conclusion regarding metadata in O’Neill v. City of Shoreline, _____Wn.2d____, ____P.3d____, (2010) WL 3911347 (2010). There, the requestor of the metadata was attempting to find transmission history of the author and recipients of an e-mail. The email was originally sent to the Deputy Mayor’s home computer, and later discussed in a Council meeting. A print copy of the email was provided to the requestor in response to the original request. But, the requestor later sough the metadata for the email that had by then been deleted from the Deputy Mayor’s home computer. The Washington Supreme Court found that the metadata associated with that e-mail was also a public record and that the computer drive on the Deputy Mayor’s home computer should have been searched to find that metadata. The email, and the underlying metadata, had become part of the City’s public records.
The issues with the nature of electronic records and their storage are multiplying. As the Law Review article points out, a study published as early as 2003 suggested that 93% of all communication was then conducted in an electronic medium; and the percentage has only risen. In addition, there are divergent standards for keeping and retrieving electronic records in response to actual or threatened litigation in contrast to public records act requirements. In electronic discovery, there can be a court enforced reasonableness standard. In the public records context there may be no such limitation. But, public records laws in Washington and most other jurisdictions do not require a public agency to produce any new document or summarize documents in response to a public records request. And, a courteous discussion with a requestor may eliminate the need to search for or retrieve metadata associated with any requested documents, as the requestor may have no interest in that level of electronic scrutiny.
The Law Review article concludes with the well recognized caution that in the end there “is the need for state and local government agencies to have electronic record management procedures (and resources) in place to respond quickly and efficiently to future open records requests involving ESI [electronically stored information].” The record management systems for ESI must also include metadata, at least in Arizona and Washington.
In a public records case with significant implications for government management and storage of electronic data, the Washington Supreme Court ruled on October 7, 2010 that metadata, the “hidden information about electronic documents created by software programs,” can be a public record and subject to disclosure under that State’s Public Records Act, Chapter 42.56 RCW. For Washington local governments and public agencies, the Court’s decision in O'Neill v. City Of Shoreline, Case No. 82397-9 (Oct. 7, 2010), puts public records officers and other employees on notice that e-mails and other electronic documents may need to be maintained in their original electronic forms to preserve metadata; paper copies will no longer be sufficient for preservation and may not be responsive to some requests. In a footnote, the Court pointed out that regulations on document retention recently promulgated by the State Archivist now require preservation of e-mail metadata. WAC 434-662-150.
Beyond the issue of metadata as public record, the Court also tangled with the issue of electronic government records on a public employee’s personal computer. The document that gave rise to this case was a single e-mail forwarded to the Deputy Mayor of the City of Shoreline as a blind carbon copy. After the e-mail’s contents were discussed at a City Council meeting, a citizen requested a copy of the e-mail. The City provided a paper copy of the e-mail. Later, the citizen requested metadata for the complete e-mail thread but the Deputy Mayor said she had already deleted the e-mail. But the Court ruled that since the Deputy Mayor had used her personal computer for City business, it is appropriate for the City to search her hard drive in attempt to locate the deleted metadata. If the City refuses to inspect the hard drive, then the Supreme Court indicated the trial court should find a Public Records Act violation. No direction was given as to what would happen if the Deputy Mayor (no longer in office) does not consent to the search.
Although this was a 5-4 decision, the dissent does not question that metadata associated with an electronic document may be a public record. This is not surprising given the liberal construction accorded the broad definition of “public records” and “writings” in RCW 42.56.010. See RCW 42.56.030 (“This chapter shall be liberally construed and its exemptions narrowly construed….”) Instead, the dissent questions a more basic point as to whether materials on a public employee’s private computer, metadata or otherwise, are public at all since they are not “retained by any state or local agency.” The dissent also questions how the majority can condition the City’s compliance with the Public Records Act on “an impermissible search or inspection” because obtaining records from an employee’s personal computer would be “highly offensive to a reasonable person” which would bar the requester from obtaining the record under RCW 42.56.050.
Although the Court’s two factions may disagree on the limits to which an agency must go to obtain public records from a personal computer and whether public work on private computers is public, the clear direction from the entire Court is that metadata falls within the category of materials that can be public records. Local governments will need to evaluate how they manage and store electronic data to ensure they are properly preserving and producing metadata as part of their public records.
The decision in O’Neill on public metadata access is the first such case in Washington and the holding is similar to that of the Arizona Supreme Court in 2009.
Some helpful links on metadata and local government records management:
Washington State Archives Records Management for Local Governments (including newly adopted retention schedules).
The Sedona Guidelines: Best Practices & Commentary for Managing Information and Records in the Electronic Age (no cost registration required).
On September 16, 2010, the Washington Supreme Court issued a comprehensive PRA decision in a case brought by one of its own. Sanders v. State, _____Wn.2d____, 2010 WL 3584463.
Since Justice Sanders of the Washington Supreme Court was the appellant, he recused himself, as did Justice Alexander. The Supreme Court decision was unanimous, authored by Justice Stephens.
The case involved Justice Sanders’ request for all documents held by the State in relation to his visit to McNeil Island. That visit resulted in a subsequent disciplinary proceeding against the Justice. Justice Sanders demanded that the Attorney General’s Office (AGO) release numerous additional documents the AGO had withheld as exempt. The Justice also sought the release of all the documents on grounds that the AGO had waived any exemption by not strictly complying with the PRA requirement that the government agency “explain” the basis for any claimed exemption. Justice Sanders also asked for penalties and attorney fees under the Act.
The trial court in Thurston County ruled in favor of Justice Sanders on some, but not all his claims and assessed a monetary penalty of $55,442.12 against the AGO for withholding some documents. Justice Sanders was also awarded 37.5% of his attorney fees. The Supreme Court essentially affirmed the trial court decision – but in a wide ranging opinion of its own.
The aspect of the ruling that will probably have the most far-reaching effect on Washington agency responses to public records requests is the Supreme Court’s ruling that an agency must not only specify the exemption on which the agency relies, but also provide for each document a “brief explanation of how the exemption applies to the record withheld.” Just specifying the exemption, the Court reasoned, would make the explanation requirement of RCW 42.56.210(3) superfluous.
The Court, however, did not agree with Justice Sanders that the failure of the AGO to adhere to this explanation requirement acted to waive the exemption. But it did affirm the trial court’s addition of a $3 per day penalty – in addition to the $5 per day underlying penalty – for not providing the explanation. The Court also ruled that the additional time when documents are withheld because of pending litigation, counts as additional days of penalty. The Court noted that those additional days in court are days, just like any other, where the requestor does not have access to documents that should have been released.
Double dipping (“retired” public employees receiving a public pension, but still working and being paid by another public agency) makes some people see stars. According to a recent National Public Radio story, at least 10 states are considering enacting bans on double dipping by public employees.
The NPR story also included a report from Ohio (a state that permits double dipping) that describes journalists’ frustration over lack of access to basic information about Ohio pension payments to people who are working at other public jobs. Ohio, it turns out, has a statutory prohibition against releasing such information – apparently with the purpose of deflecting incipient criticism of public pension funds.
The State of Washington has no such specific exemption for public pension fund or salary information. But there continues to be an exemption under RCW 42.56.250(3) for the release of employee home addresses and other personal information.
On July 20, 2010, the Ohio Supreme Court expanded access to public records formerly protected from disclosure under the “uncharged-suspect” exemption to Ohio’s Public Records Act. The court held that the exemption applies only to portions of records that, if released, could reveal a suspect’s identity. The records in question were not “inextricably intertwined” with the suspect’s identity, so the court ordered disclosure after identifying information was redacted.
The decision was not, however, unanimous. The dissent stated concern that the ruling will weaken the uncharged suspect exemption, impose an onerous burden on trial courts by requiring additional review of portions of records, and create an unworkable redaction standard that may not actually protect suspects’ identities.
How does Washington compare? Like Ohio’s Act, Washington’s Public Records Act exempts certain types of investigative, law enforcement and crime victim information from public inspection. Similarly, the Washington Supreme Court does not support a blanket investigative records exemption, finding that in some scenarios, the trial court should determine on a case-by-case basis whether nondisclosure of all or parts of a requested record is essential to effective law enforcement or for the protection of privacy rights.
A recent article in USA Today is headlined “iPads Saving Cities Paper Costs.” The story focused on the cost savings that may result from the use of iPads for internal as well as external communications of cities. The difficulty, as noted by a spokesperson for the Virginia Coalition for Open Government, is the communications on iPads (or iPhones and similar devices) do not necessarily create a record. The Coalition spokesperson was quoted by USA Today as identifying a critical issue in many states, including Washington: “Records generated are subject to disclosure, but we don’t have a mechanism for getting those records from an iPad.”
The State of Washington, like many states, broadly defines public records. The conduct of government business, whether by letter, email, text or other electronic message, may constitute a public record and governments are responsible for maintaining policies to assure public access to such records. One approach to record management is a requirement that a copy of messages relating to government business be sent to a government server.
The Washington State Office of the Secretary of State, applying that state’s Public Records Act, reminds Washington’s governments that the conduct of government business using iPads or iPhones does give rise to a public record of that communication and is to be kept consistent with the government’s record retention policy.
Court of Appeals Permits Newspaper to Obtain Sealed Attorney Billing Records in a Closed Criminal Case
In State v. Mendez, ___ Wn. App. ___ , 2010 WL 3259347 (August 19, 2010). The Yakima Herald sought as public records the sealed attorney billing records for public defenders in two related criminal cases, State v. Sanchez and State v. Mendez. The trial court denied both requests, but suggested a motion to unseal pursuant to GR 15 in Mendez because that case is closed. (The Sanchez public records case was argued to the Washington Supreme Court on March 9, 2010.)
The Mendez court held that GR 15 and the State constitutional command that justice be administered openly and permitted the newspaper to intervene and granted the newspaper’s motion to unseal the billing records of public defenders in a closed criminal case. But in doing so, the court carefully distinguished ongoing criminal cases, in which the right to a fair trial and the right to counsel may be impacted by releasing the billing time and expense records of a criminal defendant.
In releasing the billing records, however, the Court of Appeals did affirm the trial court’s redaction of time descriptions tending to reveal communications between the defendant and his appointed counsel (attorney client privilege) and those describing discovery and contacts with witnesses, and other attorney work product materials.
As everyone who responds to public disclosure requests knows, compliance with the public records act is expensive. The Yakima Herald-Republic reports that the City of Yakima is now spending $500,000 per year on public record requests, including staff and outside attorney time. The article notes that Yakima officials generally support the goal of the public records act, but wish that the legislature would do something to cut down on fishing expeditions, especially requests by lawyers who use the public records act as an end run on pre-trial discovery costs. The number of requests to the City is on a pace to reach 400 requests in 2010, up from 284 requests in 2007.
A City of Cleveland law requires daily reporting by pawnbrokers of their transactions. For years, that reporting has been through the filing of 3X5 cards (double sided). A lower court had held that such an "antiquated" system violated the Ohio public record laws. The Ohio Supreme Court disagreed and reversed. Like the Washington Public Records Act, the Court held that an Ohio city had no duty to maintain its records in a particular format, and was not required to create or provide access to nonexistent records. As a result, people seeking access to pawn records in Cleveland must play the cards they are dealt.
For more information, click HERE.
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.
The Office of Attorney General has been asked to render an opinion regarding the application of the Washington Open Public Meetings Act (OPMA) to a particular issue involving the meetings of city council committees. The questions to the Attorney General relate to the impact of non-committee councilmembers attendance at a committee meeting.
To view a copy of the notice of the pending opinion request, click HERE.
On July 16, 2010, the Wisconsin Supreme Court ruled that a public employee's personal e-mails are not public records under that State's Public Records Law. Like Washington, Wisconsin has broad public disclosure laws. Or, as noted by the Supreme Court, "[i]f Wisconsin were not known as the Dairy State it could be known, and rightfully so, as the Sunshine State." But, the Court held personal e-mails "are not a part of government business," simply because they may be sent or received on a Wisconsin local government's e-mail and computer system.
This holding is similar to (and cites) a Washington Court of Appeals decision, Tiberino v. Spokane County, 103 Wn. App. 680, 13 P.3d 1104 (2000). There, the Washington court held the personal e-mails were "public records," and excessive personal e-mail use was a reason for discharge of a government employee. However, the personal e-mails were exempt from disclosure under Washington law. While the fact of excessive email use is of legitimate public concern, the actual content of the personal emails was not.
[From IMLA News (Issue No. 12, July 07, 2010)]
In re The City of New York, No. 10-0237 (2d Cir. June 09, 2010) The plaintiffs were protesters and others who were arrested, detained, and fingerprinted after demonstrating at the 2004 Republican National Convention (RNC) in New York City. They brought suits under 42 U.S.C. § 1983 and state law, claiming that their arrests and treatment at the hands of the New York Police Department (NYPD) violated their rights. During pretrial discovery proceedings, the plaintiffs brought a motion to compel the City to produce roughly 1,800 pages of confidential reports created by undercover NYPD officers who were investigating potential security threats in the months before the RNC. The City opposed the motion to compel by asserting, among other things, that the documents were protected from disclosure by the law enforcement privilege. After the court 7 below granted the motion to compel, the City filed a petition for a writ of mandamus, seeking relief from the order to compel.
The Second Circuit granted the motion and vacated the order of the court below. The petition presented ― novel and significant question[s] of law ... whose resolution [would] aid in the administration of justice, as the court had not previously addressed ― the circumstances in which the law enforcement privilege must yield to a party‘s need for discovery. The City had also shown that its right to the writ was ― clear and indisputable, and, in the circumstances of the case, it did not have other adequate means to challenge the order. Allowing the disclosure of the reports on an ― attorneys‘ eyes only basis or by requiring filing under seal ― would provide insufficient protection for the confidential law enforcement information at issue.
The party asserting the law enforcement privilege had the burden of showing that the privilege applied. The law enforcement privilege ― clearly applie[d] to the documents here. The Field Reports, even in their redacted form, contain detailed information about the undercover operations of the NYPD. This information clearly relates to law enforcement techniques and procedures.‘ To determine whether the privilege was to give way, a court was to balance ― [t]he public interest in nondisclosure against ― the need of a particular litigant for access to the privileged information, but starting with a ― strong presumption against lifting the privilege. The plaintiffs‘ need for the reports did not overcome this ― strong presumption against disclosure, as nothing in those reports in any way undermined, contradicted, or cast doubt upon the information already provided by the City in certain ― End User Reports. Event ―if we were to agree with plaintiffs‘ claim that the City is using the [reports] as a sword‘ – that is, selectively disclosing Reports helpful to its defense – we would conclude ... that it is not unfair for the law enforcement privilege to protect the [reports] because the information in the [reports] does not contradict or undermine the information in the End User Reports. See http://tinyurl.com/365zzuc.
In an 8-1 decision, the Supreme Court upheld the Ninth Circuit’s dismissal of a facial challenge to the release of signatures on an initiative petition to overturn Washington’s “Everything but Marriage Act.” Doe v. Reed 561 U.S. ____ (June 24, 2010)
Chief Justice Roberts wrote the majority opinion in which five other justices joined and in which two other justices concurred. Justice Thomas dissented.
Roberts pointed out that “the PRA is not a prohibition on speech, but instead a disclosure requirement. ‘[D]isclosure requirements may burden the ability to speak, but they . . . do not prevent anyone from speaking.’” Doe v. Reed Slip opinion at 7. But Roberts also pointed out that the Court’s decision dealt only with the facial challenge to the release, not with an “as applied” standard related to this particular petition, which could still be asserted by the plaintiffs in the District Court.
Justice Scalia, with his characteristic reference to history, concurred with the judgment and wrote to point out that the signers of the petition were engaging in a legislative act and that legislative actions in the United States were consistently considered to be actions taken in public. Even voting by the public was traditionally a public act, and secret ballot voting had only come to be generally accepted in the United States in the 1890s when most states adopted the Australian model of voting by secret ballot. Scalia noted that there was no constitutional basis for saying that a state could not decide to keep the identity of petition signers secret, but “It may be a bad idea to keep petition signatures secret. . . . Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed.” Scalia, concurrence at 10.
Helping Hand? Make it a Handshake First to Ensure a Summary Report Fulfills Pending Document Requests
A number of municipalities have considered the issue, under the Washington Public Record Act, Chapter 42.56 RCW, whether a public agency may create a new, summary of requested document(s) instead of providing the underlying documents actually requested. Apparently as a result of advice delivered at a recent seminar, some agencies believe they have the unilateral option to substitute a summary report instead of the requested source documents.
But without an advance agreement or understanding (preferably confirmed in letter or other writing) with the requestor to substitute a summary report, the agency may end up being in violation of the PRA and subject to penalties. The offer to create a summary (e.g., a compilation of financial information in contrast to the underlying records) may save the agency time and be much more helpful to the requestor. However, creating a new document does not respond to a request for existing records. Therefore, the better practice is to obtain the agreement of the requestor – in advance – that the summary report created in response to the request will fulfill that pending document request.
Note further, an agency has no obligation under the PRA to provide information or to produce new documents. The PRA only requires the production for inspection and copying (if copies requested) of existing documents. See, Bonamy v. City of Seattle, 92 Wn. App. 403, 409 (1998); Smith v. Okanogan County, 100 Wn. App. 7 (2000).
Jailhouse Joinder: State Supreme Court Rules Inmate Requesting Records is Necessary to Injunction Action Filed by Guards to Stop Release of Personal Information
In Burt v. Department of Corrections, __Wn.2d __, __P.3d__ (May 13, 2010, Case No. 80998-4), a plurality of the Washington Supreme Court ruled that a prison inmate was a necessary party to a public records injunction lawsuit filed against the Department of Corrections by corrections officers whose records had been requested by the inmate. Justice Sanders wrote a concurring opinion that the inmate was an indispensible party and agreeing that the injunction must be vacated to allow the trial court to conduct additional proceedings with the inmate as a party.
The Public Records Act, Chapter 42.56 RCW, allows people named in requested public records to seek an injunction barring the release of public records if “such examination [of public records] would clearly not be in the public interest and would substantially and irreparably damage any person, or would substantially and irreparably damage vital governmental functions….”RCW 42.56.540. In late 2004, an inmate requested documents from the Department of Corrections that included employees’ “photographs, addresses, incomes, retirement and disability information, administrative grievances or internal investigations, and any other related document.” The DOC employees filed suit against DOC seeking an injunction barring the records’ release. DOC openly agreed with the employees’ before the trial court.
The Court (and Justice Sanders) both questioned the trial court’s ability to hold an appropriate adversarial proceeding that would protect public policy favoring disclosure, particularly when the only parties present, DOC and its employees, both argued against disclosure. The dissent asserted that requiring the record requester’s participation is incorrect because a records requester is not automatically prejudiced by not participating in injunction proceedings, for example the balance of necessary joinder factors would be different in cases where the agency argued against an injunction.
Going forward, public agencies faced with a records-release injunction lawsuit should give careful consideration to ensuring the requester’s participation in that lawsuit to prevent duplicative hearings or unnecessary appeals that may result in attorney fees being paid to the requester.
The U.S. Supreme Court heard oral argument on April 28, 2010 in the case of Doe v. Reed [Sam Reed, Washington State's Secretary of State]. As we have previously blogged, the case addresses whether public release of referendum petition signatories under Washington’s Public Records Act violates First Amendment rights. The justices sharply questioned the plaintiff's attorney, who sought to prevent release of the names of people who signed a referendum petition to require a public vote to overturn Washington’s “everything but marriage act.” A Seattle Times article on the oral arguments including a public transcript is available here.
Tomorrow (April 28, 2010), the U.S. Supreme Court will hear oral argument in the case of Doe v. Reed – addressing the question of whether the release of the names of referendum petition signatories pursuant to Washington’s Public Records Act violates First Amendment rights.
The case involves the attempt to seek release of the names of people who signed a referendum petition to require a public vote to overturn the legislature’s enactment of Washington’s “everything but marriage act.” The Secretary of State was poised to release the names, when a group named “Protect Marriage Washington” and two individual signatories to the referendum petition (John Doe #1 and #2) sought a preliminary injunction in Federal District Court to stop the release. The District enjoined the release finding that it would impinge on First Amendment rights. The Ninth Circuit heard expedited review of that ruling and reversed the decision on October 15, 2009 – before the election. Doe v. Reed, 586 F.3d 671 (9th Cir. 2009). Four days later, however, the U.S. Supreme Court stayed the Ninth Circuit ruling, reinstated the District Court’s preliminary injunction and accepted review. Doe v. Reed, No. 09-559.
The Washington Attorney General will argue the case tomorrow on behalf of the State’s Secretary of State, and urge the Supreme Court to affirm the Ninth Circuit ruling. The State’s position is that when people sign a referendum petition to substitute their view for that of the Governor and Legislature, they are engaging in a public legislative process and have no expectation of privacy when they sign such a referendum petition.
On Wednesday April 23 the State Archivist circulated a reminder that digital photocopiers contain hard drives with images of scanned records. These must be treated as public records, and all applicable federal, state and local rules must be followed, including those rules mandating the protection of confidential information. The archivist suggested that the hard drives on photocopiers should be erased before the copiers are traded in. A link to a CBS news story regarding records on digital copiers owned by public entities that was circulated by the archivist can be found here.
David Koenig, a regular plaintiff in Public Records Act cases, sought certain records from Thurston County. The records were a Victim Impact Statement and a Special Sex Offender Sentencing Alternative (SSOSA) evaluation. The documents are used in evaluation and sentencing of sex offenders.
The trial court ordered the documents sealed. But Koenig’s request had been sent to the Prosecutor’s Office, and not to the court. The Prosecutor’s Office denied disclosure under RCW 42.56.240(1), which exempts from public inspection and copying,
“specific investigative records compiled by investigative, law enforcement, and penology agencies….the non-disclosure of which is essential to effective law enforcement or for the protection of any person’s right to privacy."
The Washington Court of Appeals ruled, on April 6, 2010, in a divided opinion that Victim Impact Statements are exempt under the PRA. But, the court held that SSOSA evaluations must be disclosed after redaction of any identifying information regarding the victim and certain other third parties. Notwithstanding the difficulty in determining the exemption from disclosure of these particular public records, the court determined that it had no discretion regarding the award of penalties to Koenig under RCW 42.56.550(4). The matter was remanded to the trial court to set the amount of penalties that Koenig may receive.
To view the court's decision, click HERE.
In order to preserve taxpayer resources the legislature has revised the Public Records Act, Chapter 42.56 RCW, to allow agencies to refer records requesters to documents available on its website. Under current law, an agency that receives a public records request must respond within five days by either (1) providing the requested records, (2) denying the request, or (3) providing the requester with a reasonable time estimate for fulfilling his or her request. Effective June 10, SB 6367 provides agencies with a fourth option. If the record is available on the agency website, then the agency may provide a link to the specific records requested. However, if the requester notifies the agency the agency that he or she cannot access the records via the internet, then the agency must provide copies to the requester or allow the requester to view copies using an agency computer. A copy of the session law can be found here.
Yousoufian v. Office of Ron Sims, __ Wn.2d __, __ P.3d __ (March 25, 2010), is the fifth appellate court decision in a public records dispute that began with a request for records related to a proposed new sports stadium in 1997. The Washington Supreme Court recalled the mandate it had already issued following its 2009 opinion, 165 Wn.2d 439, 200 P.3d 232 (Jan. 15, 2009), and now modifies and affirms the Court of Appeals decision found at 137 Wn.App. 69, 151 P.3d 243 (2007). The final issue was the amount of daily penalties a trial court should award for King County’s violations of the Public Records Act, ch. 42.56 RCW. In this 5-4 opinion, the majority laid out a set of seven nonexclusive “mitigating factors” and nine nonexclusive “aggravating factors” for trial court consideration in determining the appropriate daily penalty from the mandatory statutory range of $5-$100. RCW 42.56.550. The chief considerations are the compliance effort by the agency and the impact of the agency’s action—with the higher penalties reserved for those cases in which some form of “sting” appears necessary to force the agency to pay attention to its disclosure obligations.
This round of appeals began when the trial court decided the daily penalty should be $15. The appellate court reversed, and remanded for a higher daily penalty determination by the trial court, whose discretion is virtually unlimited by statute. The Supreme Court affirmed the Court of Appeals, but with a twist. In a highly unusual decision criticized by the dissent, the majority declined to issue yet another mandate to the trial court, but instead determined the daily penalty itself -- $45 per day. The resulting penalty -- $371,000.00 -‑ is the highest PRA judgment on record in this State. As the dissent notes, it is not readily apparent how the Supreme Court applied its factors to come up with the $45 daily penalty. While the majority’s goal was to guide trial courts and thus limit the number of PRA appeals, it remains to be seen whether the nonexclusive 16-factor approach will achieve that end.
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.
Public Records can only be Destroyed in Accordance with Appropriate Records Retention and Destruction Policies
The preservation and destruction of public records is governed by Chapter 40.14 RCW. Local Governments are responsible for adopting appropriate records retention policies and procedures. The local records committee establishes retention schedules for different types of local governments that specify retention periods applicable to different categorizes of public records. These schedules are available on the Washington State Archives website. Local governments should also consider other applicable retention schedules. For example, public hospital districts should consider the Medicare conditions of participation and the Joint Commission requirements, among others. Failure to adopt and implement appropriate records retention and destruction policies and procedures may result in financial penalties and even in possible criminal sanctions because the destruction or mutilation of a public record is a felony under certain circumstances. See Chapter 40.16 RCW. Individual officers and employees should make sure that they adhere to the retention schedule with respect to documents that they maintain, such as any email that constitutes a public record (whether or not the email is on a government, personal or business computer).
A Pennsylvania appeals court recently overturned a trial court ruling that allowed the Pennsylvania Emergency Management Agency (PEMA) to withhold the complete list of the recipients of goods and services PEMA purchased with Homeland Security funds in response to a disclosure request from a Pittsburgh newspaper reporter. Bowling v. Office of Open Records, 2010 Westlaw 395637, February 5, 2010. The Court found that while disclosing the location of certain items, such as computer servers and biochemical testing equipment could be harmful to security, identifying the number and location of such items as bungee cords would not. The Court explicitly acknowledged the “enormity of the task” that individually identifying the non-sensitive items would create for PEMA, but nevertheless held that Pennsylvania’s new disclosure law required greater access to the Commonwealth’s public records.
Maryland State Police's Internal Affairs Files Relating to Illegal Racial Profiling Not Exempt Personnel Records
In response to a suit filed by the NAACP, a Maryland Court of Appeals decided that the Maryland State Police (MSP) must produce certain internal affairs files. In 2003, the NAACP and MSP entered into a federal consent decree to address claims of racial profiling. In 2007, the NAACP sought documents to verify MSP compliance with the consent decree. MSP produced many documents, but resisted producing the internal affairs files that may contain complaints of racial profiling. MSP asserted those files were “personnel records of an individual” and exempt from disclosure. On February 2, 2010, the court rejected the MSP defense, as well as the claim that an “Officer’s Bill of Rights” precluded disclosure.
For more information, click here.
Illinois Court Distinguishes FOIA Precedent and Requires Disclosure of Police Survey under Illinois Law
The Rockford (Illinois) Police Department commissioned a 2007 survey by Rockford College of uniform and non-uniform Department personnel, as well as residents in a particular area of the City. In addition to Departmental performance, the survey sought an assessment of employee job satisfaction.
The Rockford Police union sought disclosure of the survey results. The City resisted, asserting that the survey results were protected from disclosure under any of three exemptions: audits; personnel matters; or, the “self-critical analysis” privilege. On January 22, 2010, an Illinois Appellate Court rejected the City’s defenses and affirmed an earlier court order requiring disclosure of the survey. The Illinois Freedom of Information Act does not include an exemption for “self-critical analysis,” and the Illinois court would not graft federal precedent onto the state law exemptions.
For more information, click here.
New Jersey Appellate Court Holds Judicial Privilege May Not Be Absolute Outside Traditional Litigation Setting; Expunged Criminal Record
In Nunez v. Pachman, 2009 WL 5084084 (N.J. Super., A.D., Dec. 29, 2009), the Court was called upon to decide whether a verbal reference in an arbitration to an expunged criminal record could violate a reasonable expectation of privacy and give rise to a cause of action sounding in tort. In New Jersey, “expungement” requires “all” records of a conviction to be destroyed. This in turn can give rise to a reasonable expectation of privacy. The court noted that other states’ laws on expungement may be less strict, and cited cases holding that no claim for violation of a right to privacy existed in those states, under different expungement laws.
The absolute privilege from defamation actions for statements made in judicial proceedings may not apply outside traditional judicial litigation for a, because the protections from wrongful disclosure, like motions in limine, court-ordered sealing of documents, etc., may not apply. The court held that protection of attorneys and witnesses in arbitrations unrelated to the subject matter of the privacy claim (here, in a union grievance arbitration, the fact that the union member had been arrested and convicted, though the conviction was expunged, the expunged conviction was not truly germane to the proceedings) was only qualified immunity, and the attorney could be liable for invasion of privacy unless, on remand, the attorney satisfied a several-factor test.
Thus when records are made privileged or otherwise exempt from disclosure, there may be some basis for a claim that revelation of those records outside the traditional judicial setting could give rise to liability, even though the case was in alternative dispute resolution.
Court of Appeals Declines to Recognize Tort Cause of Action for Damages for Negligent Disclosure of Unsubstantiated Allegations of Misconduct
In Corey v. Pierce County, 2010 WL 255956 (Court of Appeals, Div. 1 Jan. 25, 2010), the Court of Appeals reversed a trial court order allowing a claim for damages for negligent release of unsubstantiated allegations of misconduct by a deputy prosecutor. The former deputy prosecutor alleged that disclosure of allegations of misconduct violated her right to privacy. The court held that protection against disclosure by an agency subject to the public records laws must be based upon the Public Records Act (PRA), RCW 42.56. The PRA provides for an action to order publication of information that would be offensive to a reasonable person and not of legitimate concern to the public. RCW 42.56.050; RCW 42.56.230(2). The PRA provides for injunctive relief to prevent this disclosure. RCW 42.56.540. The PRA does not, however, provide a cause of action for damages. The court declined to recognize a common law right of action.
In addition to federal HIPAA (Health Insurance Portability and Accountability Act) requirements, the Washington State Medical Records Act, Chapter 70.02 RCW places strict limits upon the disclosure of health care information. These limits apply to all health care providers, not only to hospitals. This includes anyone who "is licensed, certified, registered, or otherwise authorized by the law of this state to provide health care in the ordinary course of business or practice of a profession." An example would be EMT services provided by fire departments and fire districts. The Public Records Act specifically incorporates the Washington Medical Records Act at RCW 42.56.360. Washington's privacy protections are thus different from and in addition to those provided by federal law under HIPAA. More information regarding HIPAA is available at the U.S. Department of Health & Human Services HIPAA website
A bill has been introduced in the Washington State House of Representatives that would remove a public records exemption for certain records regarding public sector collective bargaining. HB 1471 would remove the exemption for all records created or presented during collective bargaining, and all records received by the bargaining representative -- after a collective bargaining agreement is reached.
The Washington Association of Public Records Officers (WAPRO) is sponsoring an all-day seminar entitled Public Records 101 in Lakewood on Tuesday, January 26, 2010. Steve DiJulio, a member of our firm’s Public Disclosure Team, is participating on a panel in the afternoon. The panel will review the latest Public Records Act court opinions and provide insights and ideas on compliance with the Act.
The WAPRO agenda and registration form contains more information about the training.
On November 13 the Sunshine Committee issued its third annual report to the legislature. The Committee adopted recommendations to retain, modify, or eliminate 9 exemptions to the Public Records Act. Among the Committee's recommendations are that the legislature retain exemptions relating to certain records filed with the utilities and transportation commission or Attorney General, including records containing commercially valuable information, and that the legislature eliminate the exemptions that relate to personal records of the legislature, including correspondence and email. The Committee also recommended that all future exemptions be limited to a term of five years, after which they would be examined on a case by case basis.
The Committee's full report including all of its recommendations is available here.
Governor Gregoire signed an executive order on December 3 proposing that the legislature eliminate the Sunshine Committee.
Yesterday, Governor Gregoire signed an executive order that eliminated 17 boards and commissions and she has asked lawmakers to eliminate 78 other boards, which according to the Spokesman-Review includes the Public Records Exemptions Accountability Committee, also known as the “Sunshine Committee.” The Sunshine Committee reviews and recommends changes to exemptions in the Public Records Act.
Here is a link to the list of eliminated boards and commissions.
In a recent Ethics Opinion, the Judicial Ethics Advisory Committee authorized blogging by judges. The Ethics Opinion advises, however, that any judge that engages in blogging should consider posting a disclaimer that the opinions expressed are only those of the author and should not be imputed to other judges and should outline constraints that the judge is subject to in order to avoid ex parte communication.
See our October 23, 2009 blog entry regarding the City of Federal Way v. Koenig case for information regarding the applicability of the Public Records Act to the judiciary.
Kitsap County Parks Department Takes Down Facebook Site In Light of Secretary of State's Records Management Advisory
The Kitsap Sun recently reported that on October 28, 2009, the Kitsap County Parks and Recreation Department’s blog (launched September 8, 2009 and hosted on a County intern’s Facebook site) was taken down. According to the article, the decision to take the blog down stemmed partially from the electronic records management advisory issued by the Secretary of State’s office. See our November 4, 2009 blog posting for more information regarding the advisory. The other reasons cited include the need to update the County’s communication policy to cover statements made by employees on third-party sites and the County’s information technology systems so the County can track records created through various social media.
Kitsap County’s decision follows a similar decision made by Alachua County in Florida. According to the Gainesville Sun, Alachua County recently put a ban on staff conducting any county business using text messages – whether using a county-issued cellular phone or a personal cell phone. The reason cited for the ban is the fact that text messages are public records and the county’s computer system has no way to track and save the messages.
Washington State Archives Publishes Records Management Advice Regarding Blogs, Wikis, Facebook and Twitter
The Washington State Archives recently published a records management advice sheet entitled “Electronic Records Management: Blogs, Wikis, Facebook, Twitter & Managing Public Records” that provides guidance to state and local government agencies regarding the retention of public records of posts to social networking websites such as blogs, wikis, Facebook, and Twitter.
The advice sheet provides five (5) factors for agencies to consider when managing the retention of public records created or received through social networking sites. These factors include determining whether the posts are public records (yes, if the posts are made or received in connection with the transaction of the agency’s public business). Determining whether the posts are simply copies of records that the agency is already retaining or whether the posts are primary records. Determining how long the posts will be retained and how the agency will retain the posts (especially if the posts are maintained by a third-party vendor). Finally, determining which business activities are appropriate for social networking, particularly if the agency is unable to manage the creation, receipt, and retention of the posts as public records.
Yesterday, the Supreme Court of Arizona held, in a unanimous decision, that under the state’s public records laws any entity that maintains electronic records must disclose those records along with embedded metadata. Lake v. City of Phoenix et al, No. CV-09-0036.
Washington Appellate Court Rules that Destruction of Informational-Only Emails Pursuant to a Records Retention Policy Does not Violate the Public Records Act
On October 13, 2009, Washington State Court of Appeals (Division II) affirmed a trial court’s summary judgment in a public records case brought by the Building Industry Association of Washington (BIAW). BIAW sued Pierce County when the County did not produce certain email records that the BIAW had located from a different agency. The court ruled that emails from the Washington Secretary of State’s office to the Pierce County Auditor had been properly deleted pursuant to the applicable retention policies. The Court further held that the State’s Public Records Act (PRA) does not authorize a requestor to comb through agency records searching for records that do not exist.
At issue were several informational emails that were sent by the Secretary of State to all county auditors regarding voter registration forms submitted by the Association of Community Organizations for Reform Now (ACORN). When these emails were not produced by Pierce County in response to a public records request, BIAW sued, arguing that the County was withholding the emails in violation of the PRA or had destroyed them in violation of Washington State's Preservation and Destruction of Public Records Act, chapter 40.14 RCW. In response the County contended that the emails had likely been deleted pursuant to its general records policies since the emails were purely informational. The County submitted affidavits to the trial court demonstrating its office policies and procedures, the use of email, and what had happened in the particular circumstances involved.
The Court agreed with the County, stating that BIAW had failed to introduce evidence contradicting the County’s affidavits. The Court also noted that the County’s procedures comply with applicable retention policies published by the Secretary of State regarding informational only emails; and, that destruction of records in accordance with retention policies is allowed as long as no public records request for those records is outstanding at the time of destruction. Neither the trial court nor the appellate court reached the issue of whether the improper deletion of a record in violation of chapter 40.14 RCW would constitute a separate violation of the PRA.
Over 20 years ago, the Washington State Supreme Court held in Nast v. Michels, 107 Wn.2d 300 (1986 ) that the State's Public Records Act (PRA) does not apply to court case files because the judiciary is not included in the PRA’s definition of a State “agency.” On October 15, 2009 , the Supreme Court reaffirmed its Nast holding in City of Federal Way v. Koenig, 2009 WL 3298055.
The Koenig case began in February 2008. David Koenig, a regular claimant against Washington local governments, requested from the Federal Way Municipal Court all public records related to the resignation of Federal Way Municipal Court Judge Colleen Hartl . His request included correspondence to and from Presiding Judge Michael Morgan. The City of Federal Way provided 183 pages of documents . But, citing Nast, the City refused to provide the requested correspondence on the basis that the municipal court was not subject to the PRA. Koenig argued that Nast was wrongly decided and persisted in pursuing his requests.
The City filed a lawsuit and requested a declaratory ruling that the municipal court was not subject to the PRA. In September 2008 the trial court entered an order finding for the City. Koenig appealed that decision directly to the Washington State Supreme Court.
The Supreme Court affirmed the Nast holding. The Court emphasized that over the years the legislature had amended the PRA many times, without changing the definition of agency. Without a legislative change, the doctrine of stare decisis (to adhere to precedent) was applied by the Court to not disturb the Nast court's holding that the PRA does not apply to the judiciary. As a result, the Court held that the court records requested by Koenig were not subject to disclosure by the City of Federal Way under the PRA.
Earlier today, the United States Supreme Court in an eight to one vote blocked the public release of documents showing names and contact information of Washington Referendum Measure No. 71 (“R-71”) petition signers. This action stopped the Ninth Circuit’s ruling last week that ordered the release of the documents. See our October 16, 2009 blog posting for more information regarding the Ninth Circuit’s ruling.
The Seattle Post-Intelligencer reported that the Supreme Court will now consider whether to hear the merits of the case, but the action to block the release of documents means the petitions most likely won’t be released before the November 3, 2009 election.
On Thursday, October 15, 2009, the Ninth Circuit Court of Appeals issued an order overturning a decision of the U.S. District Court of the Western District of Washington that barred the Washington Secretary of State from any public release of documents showing names and contact information of referendum petition signers. The particular case involved Washington Referendum Measure No. 71 (“R-71”). See our September 25, 2009 blog posting for more information regarding the earlier ruling of the District Court.
On the same day, the Secretary of State's Election Division issued a narrative explaining why the Secretary of State, in consultation with the Attorney General’s Office, treats initiative and referendum petitions as public records subject to disclosure under the Washington Public Records Act.
Despite the Ninth Circuit ruling, the names have not been released due to a temporary restraining order granted by a Thurston County Superior Court judge blocking the State from releasing initiative petitions under the Public Records Act. The District Court decision was issued in response to a lawsuit, seeking to stop the release of petitions, brought by Tim Eyman, a well known sponsor of initiatives and referendums.
Last week, the Olympian reported that the Washington State Supreme Court has agreed to hear arguments in the Yakima Herald-Republic’s legal battle over sealed records in a 2005 double homicide. The newspaper is appealing a July 2008 lower court ruling that defense attorney billing records detailing more than $1.5 million in fees and expenses are not subject to the Public Records Act. Arguments are expected to be scheduled sometime between January and early spring 2010.
The Washington Secretary of State has characterized the aim of Initiative 1033 as a cap on the annual growth of state, county and city general funds at the rate of inflation plus population growth. Revenue above the cap would be used to reduce property taxes. Foster Pepper’s municipal lawyers present the following links to a series of reports and analyses regarding I-1033. Additionally, there are links to the Secretary of State as well as to other sites providing information on I-1033.
- Association of Washington Cities
- Issaquah Reporter
- Municipal Research Services Center
- Office of Financial Management analysis of I-1033
- Vote Yes On 1033 Campaign
- Washington Fire Chiefs
- Washington Research Council
- Washington State Budget & Policy Center
- Washington State Republican Party
- Washington Secretary of State
As you may know, Ramsey Ramerman, an attorney in Foster Pepper's Public Records/Open Government practice, recently left the firm to take an in-house legal position with the City of Everett. We wish him all the best and look forward to our continued relationship with the City related to its legal needs.
We wanted to make sure you knew who to contact at Foster Pepper for any public records issues that may arise. Foster Pepper continues to provide a full-service team to meet your needs (check out our capabilities) and as a point of contact you can call Rosa Fruehling-Watson at 206-447-7907 or email her at firstname.lastname@example.org for assistance.
Referendum Measure No. 71 (“R-71”) seeks to repeal Chapter 521, Washington Laws of 2009 (Expanding the rights and responsibilities of Washington State registered domestic partners).
On September 10, 2009, the U.S. District Court of the Western District of Washington granted a preliminary injunction barring the Secretary of State of Washington from any public release of documents showing the names and contact information of people who signed petitions in support of R-71. In reaching its conclusion, the Court held that the “weight of authority” leads to a finding that an individual who supports the referral of a referendum is engaged in protected political speech under the First Amendment, which includes the right to speak anonymously. Accordingly, the Court found that the Plaintiffs were likely to succeed on their claim that the Washington Public Records Act was unconstitutional as applied to the public disclosure of referendum petitions.
Last month, the Supreme Court of Nebraska addressed a public records request for documents prepared by a private investigator at the direction of the mayor of the City of Kimball, Nebraska. Evertson v. City of Kimball, No. S-08-524 (Neb. July 2, 2009). The Court found that the documents were public records, but that they were exempt from disclosure on the basis that they were prepared pursuant to an investigation into a possible violation of the law.
The mayor, after receiving complaints alleging that City police officers were engaged in racial profiling, hired a private investigator to look into the allegations. Most of the complaints focused on one officer. After concluding the investigation, the private investigator provided a verbal report to the mayor and the city attorney, confirming the allegations made about the officer. The verbal report resulted in the City’s termination of the officer.
The citizens who had made the original complaint understood from conversations with the private investigator that a report had been prepared, and requested a copy from the City. The City responded that no report existed. The citizens filed an action to compel the City to disclose the investigative report. The City refused on the basis that it had not requested or paid for a written report; and, the information received by the City was verbal. As a result, the City claimed that none of the investigator’s investigative documents were public records. The City also claimed that the documents fell within certain exemptions of the Nebraska public records statute.
The Court rejected the City’s argument that because the City did not pay for or request a copy of the materials the investigative documents were not public records. The Court held that “documents or records that a public body is entitled to possess – regardless of whether the public body takes possession” are clearly public records. See in this regard the Washington Supreme Court’s analysis of a similar issue in Concerned Ratepayers Ass’n v. Public Utility District No. 1 of Clark County, 138 Wn.2d 950 (1999). In determining that the City was entitled to the possession of the investigative documents, the Court found that the mayor had delegated authority to the private investigator to investigate allegations of wrongdoing and that the investigator created the documents under this delegated authority. Accordingly, the documents were public records.
Even though it found the investigative documents were public records, the Court agreed with the City that the requested materials were exempt from disclosure on the basis that they were prepared pursuant to an investigation into a possible violation of the law (a recognized exemption under Nebraska’s public records statute). For Washington State’s similar exemption see RCW 42.56.240(1). The Nebraska Court found that the investigation concentrated on racial profiling, which, if proved, would constitute a violation of law. The mayor’s purpose in initiating the investigation was to enforce the law, and the requested documents were exempt from disclosure.
For a discussion regarding the treatment of investigative materials under Washington State’s Public Records Act, see Foster Pepper's news alert regarding Soter v. Cowles Publishing Co., 162 Wn.2d 716 (2006).
In a recent unpublished decision, a Washington State Court of Appeals addressed a Public Records Act request from the Neighborhood Alliance of Spokane County for records of the County’s Building and Planning Department. Neighborhood Alliance of Spokane County v. County of Spokane, No. 27184-6 (C.A. Wa., Div. III, August 11, 2009).
While an unpublished decision, the Court’s analysis does provide some guidance for a government’s review of electronic records in response to a public record request. First, the Court looked to federal court decisions under the Freedom of Information Act (FOIA) to guide the the standard for judicial review of the government agency’s response to a request.
“The adequacy of the agency’s search is judged by a standard of reasonableness, construing the facts in the light most favorable to the requestor.”
“the agency must show that it ‘made a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested.’”
Applying that standard to Spokane County’s efforts, the Court found that the County had examined one computer, but had not examined an older hard drive used by the author of the subject document. “The County failed to conduct an adequate search for the complete electronic information log showing the date the” record was created.
Also of interest is the Court’s determination that under the Public Records Act, similar to FOIA, the scope of discovery in records litigation is limited to whether a complete disclosure has been made by the agency in response to a request for information. The Court rejected the broad discovery requests for other documents and information to the County that “went far beyond the issue of whether a reasonably adequate search for documents had taken place.”
DATE: Thursday, September 17, 2009
Approved for 6.0 CLE Credits for Washington Attorneys: 5.0 General Credits and 1.0 Ethics Credit
Presentations to include information:
- on ethical issues in making and responding to public records requests and handling information received in response;
- on the Sunshine Committee's review of Public Records Act exemptions;
- on recent and pending court decisions;
- on a range of issues concerning possible penalties under the Public Records Act;
- on Public Records Act implications for electronic records management, retention, and production; and
- on the interplay between Public Records Act requests and civil discovery — and related pitfalls and opportunities.
See attached brochure for more details.
Here's an update from the Open Records Blog -- a great blog that tracks state public records issues nation wide -- on the R-71 controversy. The Post also provides Tim Eyman's perspective on the issue.
As noted by the Seattle Times, a Federal Judge has issued an injunction prohibiting the State from releasing the names of the persons who signed the R-71 petition. According to the Times:
Judge Settle . . . gave what appears to be a nod to the strength of the referendum backers' case, writing that they "have sufficiently demonstrated a reasonable likelihood of success on the merits" of their First Amendment claim, and "a reasonable likelihood of irreparable harm if the names are released."
Here is an editorial from the Yakima Herald on this ruling: "Open records means just that -- so release the names on R-71"
The Secretary of State's office has weighed in on this debate on its blog, "From Our Corner." The post summarizes of Elections Director Nick Handy's position and captures the conflicts this issue raises:
State Elections Director Nick Handy notes the the state has long been committed to open records and transparency in government, but says he’s unhappy with the thought of the petition process being used as a weapon to dampen voters’ participation in their constitutional right of petition.
“Nobody is comfortable with releasing personal information in situations like this, but it is part of transparency in government,” Handy says. “We hope people will keep their cool.”
Almost everyone would agree that information on campaign donations should be public, and it is. Likewise, almost everyone would agree that information about how an individual voter voted should be private, and it is. Signing a petition seems to fall somewhere in between, but under current law, no privacy exists.
Original Post 6/10
In this Seattle Times article, the author puts the spotlight on a new trend of publicizing the names of persons who sign petitions for initiatives and referenda. The stated goal of this tactic is to foster conversations between those who sign a petition and their friends and family who oppose the initiative or referendum. Critics say the real goal is to intimidate potential signers who don't want to be publicly associated with a controversial issue. The article quotes the president of a special interest group as noting:
"They are using the public-disclosure laws to punish people for participating in the democratic process — a core right."
As the Internet brings the prospect of a more transparent government, this state and other governments will face new questions about privacy and fairness that weren't implicated when most public access was to pieces of paper.
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:
As illustrated in this Everett Herald story, a Mukilteo councilmember’s micro-blog serves to remind us about a lesson public officers and employees have been told for decades.
Common Sense Advice Over the Decades
1969: Don’t write anything down that you don’t want to see on the front page of the paper.
1979: Don’t record anything you don’t want to see on the front page of the paper.
1989: Don’t put anything in an email you don’t want to see on the front page of the paper.
1999: Don’t take pictures of anything you don’t want to see on the front page of the paper.
2009: Don’t tweet or post anything you don’t want to see on the front page.
In 1972, when state voters enacted the Public Disclosure Act, they made a Declaration of Policy, providing:
mindful of the right of individuals to privacy and of the desirability of the efficient administration of government, full access to information concerning the conduct of government on every level must be assured as a fundamental and necessary precondition to the sound governance of a free society.
RCW 42.17.010(11) (emphasis added). The Public Records Act (PRA) was a component of the Public Disclosure Act, and later separated into a separate provision of State law.
In two recent opinions from Division I of the Washington State Court of Appeals, the Court has rejected claims under the PRA that would have interfered with the efficient administration of government.
In Koenig v. Pierce County, the Court recognized that counties are made up of several distinct agencies. As a result, when Mr. Koenig made a public records request to the Office of the Pierce County Prosecuting Attorney, the Prosecutor's Office was not required to search for records in the Sherriff’s Office.
In ACLU v. City of Seattle, the court held at under the PRA (at RCW 42.56.280), a city does not have to release records related to union contract negotiations while those negotiations are ongoing. The state voters had approved an exemption from the general disclosure obligation when non-disclosure serves the public interest. Here, in applying that exemption, the Court noted:
“Public scrutiny of contract issues discussed prior to completing negotiations might be misconstrued, and disclosure would hinder a vital part of the bargaining process—the free exchange of views, opinions, and proposals.”
Emails allow an increased level of public access to government decision-making because many issues are resolved in email exchanges that 20 years ago would have been addressed in person or over the phone. These same emails, however, sometimes reveal embarrassing information. Example A: the scandal related to South Carolina Governor Sanford's affair. For more see the posts on the Death by Email blog.
Not surprisingly, the newspaper that broke the story, the State, has made an extensive public records requests to the Governor's office. What is surprising, however, is that some of the more recent embarrassing emails show media outlets pledging support for the governor when the stories first broke that he had gone missing: Great Call: In Emails To Sanford's Office, Right-Wing Media Dismissed Missing Gov Story
It's not uncommon for members of the public unaware of the scope of the public records laws, to be embarrassed when their email to their elected official is made public. But this is the first example I've seen of the media being embarrassed because they forgot about the public records laws.
The City of Prosser provides the latest example of how the Public Records Act can be very profitable for some. The City has agreed to pay a requester $175,000 to settle a PRA lawsuit. As recorded by theYakima Herald, the requester caught the City up in 11 mistakes after making 213 requests. The PRA requires strict compliance and puts no limits on the number of requests a person can make at no cost to the requester.
Taxpayers, of course, will pay the tab. And this may not be the end of it -- the requester has already warned "They've got to be fully prepared to go the next round."
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 July 13, 2009
Here is another story/editorial from the TNT on this case: "L&I, Justice Sanders run up the bill." Even the TNT notes the harsh nature of the L&I judgment:
A half-million dollars does seem stiff, given that L&I did not contest that it was at fault for withholding the records. An agency spokesman told The Olympian that an employee had failed to take proper action in response to the records request.
As noted in this Olympian article, the Washington State Department of Labor & Industries was recently ordered to pay $500,000 because of errors related to a single Public Records Act Request. This case demonstrates that the failure to properly respond to a single public records request can have significant economic consequences. One consequence of this judgment will be a significant increase in electrical inspection fees, because it is public dollars that will pay this judgment.
As governments put more and more information on the web, governments should be focused on how to make that information usable to help the public understand how it relates the decision-making process. As noted in this post, Transparent or Translucent, simply loading data onto websites can serve to obscure how governments make decisions rather than give the public access to how and why those decisions are made. This can result in translucent government, not transparent government.
Australia has some of the most sophisticated and advanced laws on document retention and access. Therefore, it was not surprising to find this guidance on records retentions issues for government web 2.0 sites coming from the Australian government: Records Management and Web 2.0
Here is another article from Florida on whether governments should use web 2.0 sites:
"Attorneys, legislators to pull plug on Marco government’s use of social Web sites? Increased accessibility to candidates and officials, public records concerns among the pros and cons being considered in use of Facebook, Twitter"
Spies should also stay off Facebook: "British spy chief outed on wife's Facebook page"
Apparently Judges should stay off Facebook too. Here's an article about a Judge who was reprimanded after accessing a litigant's Facebook site.
Original Post 5/18
As the benefits of Web 2.0 personalized communication -- like Facebook, YouTube and Twitter -- become more apparent, public agencies and politicians are quickly looking to these tools to communicate with the public. Several Washington State agencies, including the Secretary of State and Attorney General (links Twitter, Facebook and YouTube at the bottom of the AG's homepage) use Web 2.0 sites such as Facebook. Here's a PowerPoint presentation from the Secretary of State's office explaining the benefits of Web 2.0 sites.
Use of Web 2.0 sites is not without risk, however. As highlighted in this article about the advice of a city attorney in Florida to his city council -- stay off Facebook, there are concerns about whether the use of such sites affects a government's ability to comply with public records, records retention and open public meetings laws. The city featured in the article concludes:
It is a simple fact that the state of the law is lagging woefully behind the state of the art in communications technology. This presents unique challenges in following the intent and the letter of these laws regulating public meetings and communications of local government. For this reason, this office discourages the City’s participation in a Facebook page or any similar interactive communication technology.
Here is an interesting editorial in the Wall Street Journal: "Why Palin Quit Death by a Thousand FOIAs" The editorial highlights that public records laws can be abused to paralyze a government agency or a public office holder:
This situation developed because Alaska's transparency laws allow anyone to file Freedom of Information Act requests. While normally useful, in the hands of political opponents FOIA requests can become a means to bog down a target in a bureaucratic quagmire, thanks to the need to comb through records and respond by a strict timetable. ... Since Ms. Palin returned to Alaska after the 2008 campaign, some 150 FOIA requests have been filed and her office has been targeted for investigation by everyone from the FBI to the Alaska legislature.”
As bad as this may sound, at least Alaska law -- like the law in most states -- allows the state to charge for search time after giving each requester a taxpayer-subsidized five hours a month for free, which serves as a disincentive to anyone seeking to abuse the law by making large requests. Agencies in Washington, however, cannot charge for search time, which makes the Public Records Act an even more powerful weapon in this state for persons who may want to target an agency or official. And while the vast majority of requesters act in good faith, even one person can paralyze a city or other agency.
(Note, the editorial also highlights the numerous ethics complaints that have led to a half-million dollar attorney-fee bill, which also played a big factor in Palin’s decision to resign.)
As I have previously noted, a little while back I asked Tim Ford, the AG's Open Government Ombudsman, about some of the legal issues related to the use of blogs and Web 2.0 sites.
Here is his email response (my questions are in black, his responses in red). Essentially, Ford states that the content is the public record, not the "look and feel" version that actually would appear on the Web 2.0 site. This addresses my biggest concern.
And here is Russell Wood's response to the retention issues. Again, Wood states that it is the content that is subject to retention (this is an edited version of the email).
The one remaining open issue is whether an elected official's personal blog becomes a public record if the official discussions agency business. Agencies also have to use extreme caution if they accept comments to ensure that comments are not edited or removed in a way that would violate the First Amendment. A clear policy is essential for this purpose.
Here is Olympian reporter Brad Shannon's blog post on the topic.
Here are my earlier posts on the topic:
"Monroe's business gets done in secret" Everett Herald
Last month I had the pleasure of teaching two classes to city officials at the Association of Washington Cities Conference in Spokane. One hot issue raised by the city councilmembers was the use of blogs and Web 2.0 cites. I cautioned against their use because the Public Records Act issues are unresolved.
Another topic at the conference, however, was about the use of blogs and Web 2.0 cites. The presenter, Lakewood City Councilmember Walter Neary, has his own blog, Electing2Blog, Blogging by Elected Officials, dedicated to this topic.
When some of the councilmembers who attended my sessions cautioned about the risks of blogging created by the PRA, ... well here is Councilmember Neary's take "A Funny Thing Happened on the Way to Public Outreach."
Here is another take on the exchange from the Olympia Time blog: "The secret key to why city council members are told not to blog"
Someone has also started a WIKI page on the topic entitled "Social Web handbook for Washington State local electeds"
I will post the questions I have asked Tim Ford, the AG Open Government Ombudsman, about the legality of this topic shortly.
What does this mean for other PRA cases? If you have a case at the penalty stage, I'd probably seek a stay because unless the Court adopts the identical test, if you do it now you'll just have to do it again later.
The Washington State Supreme Court has withdrawn its January Opinion in the long-running Yousoufian v. Office of Ron Sims case. In that Opinion, the Supreme Court had ruled that the $124,000 Public Records Act penalty award against King County was too small. The Opinion adopted 16 factors trial courts should use to set penalty amounts. For more details on the Opinion, see this MRSC article.
King County had moved to have the Opinion withdrawn after it was revealed that the Opinion author, Justice Richard Sanders, had a pending appeal in a Public Records Act case, where he was relying on his Yousoufian Opinion to argue that his judgment against the State should be increased. In light of the recent U.S. Supreme Court holding in Caperton v. Massey that a West Virginia Supreme Court Justice's decision not to recuse himself violated due process, this result is not surprising.
Here is an article in the Seattle Times on the Supreme Court's ruling. Here is a post on the Supreme Court Blog about the order.
When the U.S. Forest Service was considering whether to fire whistle-blower Glen Ith back in 2007, its ethics chief was keenly aware that his emails on the topic were public records, subject to discover. His solution? Instruct all recipients to destroy the emails:
This information is for your eyes only. Please destroy after reading. It's not protected by privilege and is subject to discovery.
Melvin Y. Shibuya
Chief, Labor/Employee Relations Branch
He repeated similar warnings in subsequent emails.
Here is a link to an article that includes these excerpts from those emails.
Justice has prevailed, at least sort of. Mr. Ith died of a heart attack while on administrative leave, after his job was "downsized" but his widow was recently awarded all of her litigation cost.
Here is a very helpful new blog, "Unredacted," that records the Open Government Ombudsman's informal opinions on Open Government issues. Transparency at work.
Division I and Division II of the Washington State Court of Appeals both issued decisions in favor of local governments seeking to comply with the Public Records Act (PRA).
In Beal, Cummings, Rasmussen & Wingard v. City of Seattle, Division I held that the City of Seattle did not have to treat an oral request made at a planning meeting as a PRA request because under the circumstances, there was no reason for the City to recognize that it was a PRA request.
In Koenig v. City of Lakewood, Division II held that the City properly redacted records pursuant to the Criminal Records Privacy Act and the PRA. It also rejected the requester's claim that he was entitled to additional penalties and attorney fees.
Approximately 48 hours after oral argument, a unanimous Washington State Supreme Court issued an order in Morgan v. City of Federal Way that authorized the City of Federal Way to release the "Stephson Report." An opinion will follow in the next few months. (The order was slightly revised on Friday -- here is the final amended order.) This is the relief sought by the City and the Tacoma News Tribune.
Here is an analysis of the order from the Supreme Court of Washington Blog by EFF.
Foster Pepper represented the City of Federal Way in this case.
Steve Maynard, the requester in Morgan, summarizes oral arguments in this TNT article: "Attorneys, Supreme Court justices joust over Federal Way judge investigation."
Here is a TNT editorial on the Morgan case: "FWay court probe should be public"
Here's a nice summary of the issues in both Morgan and Koenig from the Supreme Court of Washington Blog by the Evergreen Freedom Foundation.
The Washington State Supreme Court arguments for Morgan v. City of Federal Way and City of Federal Way v. Koenig (like all arguments) were televised and available on the web on TVW. For more information on the issues in the case, see this post.
Here are the videos:
Morgan v. City of Federal Way.
John Schochet, representing Judge Morgan, argues first.
James Beck, representing the Tacoma News Tribune, starts at 17:20.
Ramsey Ramerman, representing the City of Federal Way, starts at 25:10.
John Schochet's rebuttal starts at 38:45.
City of Federal Way v. Koenig
William Crittenden, representing Mr. Koenig, starts.
Ramsey Ramerman, representing the City of Federal Way, begins at 13:20.
Mr. Crittenden's rebuttal begins at 30:45.
On Tuesday, June 9, the Chair of Foster Pepper's Public Disclosure Team and editor of this blog, Ramsey Ramerman, will be arguing two cases on behalf of the City of Federal Way in the Washington State Supreme Court. Here are the issue statements from the Supreme Court's website:
City of Federal Way v. Koenig:
Open Government—Public Disclosure—“Local Agency”—What Constitutes—Municipal Court
Whether the Federal Way Municipal Court is a “local agency” subject to the disclosure requirements of the Public Records Act, chapter 42.56 RCW.
Morgan v. City of Federal Way:
Public Records—Exemptions to Disclosure—Municipal Court Judge—City Investigative Report—Court Records—Attorney Work Project—Attorney-Client Communications
Whether a City of Federal Way investigative report concerning a municipal court judge is a court record, attorney work product, or attorney-client communication exempt from disclosure pursuant to Public Records Act, chapter 42.56 RCW.
As reported by the Huffington Post, President Obama has now included a provision in a war-funding bill that would protect the detainee abuse photos from disclosure.
McLatchy Reports: "Why'd Obama switch on detainee photos? Maliki went ballistic." While fear of foreign uprisings may not be an exemption under FOIA, maybe it should be.
A federal appeals court has now affirmed the position of President Obama that White House Office of Administration is not subject to the Freedom of Information Act, reasoning that the entity only implements administrative decisions and does not form policy.
Here is some more food for thought on the President's reasons for not releasing the photos.
As noted in this article, "Like Bush, Obama White House Chooses Secrecy for Key Office," President Obama is continuing the Bush-era policy of exempting the White House Office of Administration from the Freedom of Information Act. The article ends by reminding reader's of one of the President's campaign promises on openness:
"More and more, the real business of our democracy isn't done in town halls or public meetings or even in the open halls of Congress," he told an Iowa audience in 2007. "Decisions are made in closed-door meetings, or with the silent stroke of the President's pen, or because some lobbyist got some Congressman to slip his pet project into a bill during the dead of night. We have to take the blinders off the White House."
President Obama has now reversed his position on the release of the additional photographs showing the prisoner abuse at Abu Ghraib. When the first batch of photos were released in 2004, it caused world-wide outrage. This article analyzes and deconstructs the six reasons President Obama seems to be relying on for this change.
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."
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.
Here is a post from Og-Blog on the open government record of Sonia Sotomayor, President Obama's nominee for the Supreme Court.
Sunshine Committee Delays Its Recommendation on the Legislature's Exemption to the Public Records Act ... Again
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.
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:
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.
Foster Pepper's Public Disclosure Team Holds Its First Comprehensive Public Records Officer Training and Certification Class
On April 15, Foster Pepper's Public Disclosure Team held its first Comprehensive Public Records Officer Training and Certification Class. There was a sold-out crowd of 80 attendees from cities, counties, PUDs, PDFs, Schools, Ports, Housing Authorities, Parks and even two state agencies. From the evaluations, the class was universally popular, so Foster Pepper is actively planning to put on additional classes in locations throughout the state. Stay tuned for more information.
Here is the course outline. Attendees also received a thumb drive loaded with sample policies, a guide to the 365+ exemptions to the PRA, and a model public records policy in word format.
Session (1) Public Records Act 101
- An overview of the Act
- Clear guidance on the initial response including practical tips for building a working relationship with requesters
- Checklist for gathering responsive records
- Menu of what you can and cannot charge
- Details on e-records issues including metadata
- Tips on how to teach employees about the Public Records Act
- Includes electronic version of the PowerPoint that you can use to train your staff
Session (2) Third party records
- Tips for communicating the PRA requirements to vendors and other third parties
- Sample contract language to protect your agency
Session (3) Personnel Records, step by step
- Step by step process for reviewing personnel records
- Special emphasis on performance reviews and discipline records
- Tips for protecting privacy without hurting transparency
Session (4) Exemptions, exemptions, exemptions
- Review of some of the most common exemptions
- Focus on when they apply AND why they benefit the public
- Provide a roadmap through the 365 plus exemptions
Session (5) A layman’s guide to the Attorney-Client privilege
- Thorough analysis of the rules without legal jargon
- Tips on black and white lines and tips on when to go see the attorney
Session (6) Records retention, creation and indexing
- And overview of the state archivist’s new December 2008 retention guidelines
- Answers to questions about emails, drafts, primary v. secondary copies and other common questions
- Sample policies on email use and producing electronic records
Here is an editorial on the "torture memos" from the Olympian written by the editor of this blog, Ramsey Ramerman. It was inspired by George Will's recent statement on ABC's This Week: "The problem with transparency is that it’s transparent for the terrorists as well.”
Update 5/13: Here's the Og-Blog's take on the editorial. As it correctly notes, President Obama's administration has not been as transparent as many had hoped, particularly with regards to the Federal Reserve and the AIG bailout.
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.
As promised, here is a link to the briefs in City of Federal Way v. Koenig, which will require the Supreme Court to reconsider its 1986 decision that exempted courts from the Public Records Act. This is one of two Public Records Act cases Foster Pepper will be arguing on June 9.
Kentucky and West Virginia Courts:
The Chief Justice of the Kentucky Supreme Court is posed to issue new rules that may subject state court administrative records to Kentucky's open records law.
The West Virginia Supreme Court has accepted review of a case that will determine whether the Justices' own emails are subject to the state's open records law.
In Washington, the Supreme Court held in 1986 that courts are not "agencies" under the Public Records Act, making court records not subject to the PRA. See Nast v. Michels, 107 Wn.2d 300 (1986).
NOTE FOR FULL DISCLOSURE: In a case set for oral argument before the Washington Supreme Court on June 9, 2009, Foster Pepper will be defending the Nast decision. The appellant in the pending matter before the Court is arguing that Nast should be narrowly interpreted, making most court records subject to disclosure. We will post links to the briefs in that case once the briefs are available on the Supreme Court website.
President Obama made news Thursday (April 16) by releasing four public records -- the infamous Bush "torture memos." You can find copies all over the web, but here's a link to an article on Talking Points Memo that has all four in PDF format.
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.
The Arkansas legislature is considering a bill that would make all information about gun owners exempt from disclosure. The Governor opposes the bill, but agrees some personal information (address, phone number, birth date) should be exempt. As noted before on this blog, all handgun licensing information is exempt under Washington law.
City of San Diego public employees will be producing their calendars in response to a public records request, according to this article in the San Diego Union-Tribune. The newspaper is also blogging about its efforts to obtain records and has created a database for the officials' calendars.
Under Washington law, public employees' calendars are subject to disclosure, subject to any applicable exemptions. One wrinkle in Washington law -- if the employee also includes personal items, then the agency may be able to redact the personal entries. See RCW 42.56.230(2) & Yacobellis v. City of Bellingham, 55 Wn. App. 706, 712 (1989) (raising but not addressing issue of personal information on calendars). But for public employees who want to ensure their privacy is protected, the better practice is to not add personal items to the employer's calendar.
Kentucky and West Virginia Courts:
The Chief Justice of the Kentucky Supreme Court is posed to issue new rules that may subject state court administrative records to Kentucky's open records law.
The West Virginia Supreme Court has accepted review of a case that will determine whether the Justices' own emails are subject to the state's open records law.
In Washington, the Supreme Court held in 1986 that courts are not "agencies" under the Public Records Act, making court records not subject to the PRA. See Nast v. Michels, 107 Wn.2d 300 (1986).
NOTE FOR FULL DISCLOSURE: In a case set for oral argument before the Washington Supreme Court on June 9, 2009, Foster Pepper will be defending the Nast decision. The appellant in the pending matter before the Court is arguing that Nast should be narrowly interpreted, making most court records subject to disclosure. We will post links to the briefs in that case once the briefs are available on the Supreme Court website.
The title of this article says it all "Openness is basic to democracy."
San Francisco has started its own recovery site.
Original post 3/4/09
As noted by Brad Shannon in the Olympian, the State has followed the federal government's lead to set up a website to track the federal stimulus dollars that flow into the State It's called "Recovery.wa.gov." Here's Governor Gregoire's Executive Order creating the site.
Washington is among the 14 states that have launched "recovery.state.gov" sites.
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.
In the latest Open Government Advisor Column on Municipal Research and Services Center website, Foster Pepper's Ramsey Ramerman discusses this new Public Records Act court opinion:
In a recently published opinion, Parmelee v. Clarke, -- Wn. App. --, 2008 WL 5657802 (publication ordered Feb. 2009), Division II of the Court of Appeals gave teeth to the Department of Corrections' Public Records Act procedures. The Department's procedures specifically identify the Public Records Officer and provide that all requests should be sent to that officer. The Court held that, because the requester had actual knowledge of those procedures, the requester was required to follow those procedures and make public records requests to the identified officer. Thus, the court dismissed the requester's claims that were based on requests made to other persons.
Here are links to other open government articles by Foster Pepper available on the MRSC website:
February 2009 Open Government Advisor:
Supreme Court Underscores the Requirement to Produce an Exemption Log under the Public Records Act
November 2008 Council/Commissioner Advisor:
Five Issues You Should Consider Before You Decide to Use Your Personal Email Account or Personal Computer for Official Public Business (and five ideas to help ensure that use is transparent)
December 2006 Council/Commission Advisor:
The Open Public Meetings Act and Electronic Communications
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.
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.
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..
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.
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.
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.”
As this article in the Seattle Times notes, the Kansas legislature is currently considering legislation to review 30 of the exemptions to its public records laws (Title 42). Kansas law mandates that the legislature review all exemptions every five years.
Washington law does not require the Legislature to review Public Records Act exemptions. Instead, the Public Records Act includes a provision that has created the Sunshine Committee, which has been tasked to review all 365+ exemptions. The committee's unanimous recommendations -- contained in SB 5295 -- are on target to pass this session. But there are also two bills before the Legislature that would either suspend or eliminate the Sunshine Committee: SB 5588 and SB 5994.
As noted by the FOI Advocate Blog, President Obama has funded a FOIA ombudsman position at the National Archives. The position was not funded by the last administration.
On Monday, March 9th's Colbert Report, Stephen Colbert presented an editorial on an open government story from Tennessee. There, a Memphis newspaper has published an on-line database listing people with concealed weapons permits. Colbert satirically rails against on-line access to public records because of a claimed invasion of privacy. While Washington has similar database sites for information on public employees, such as for salary information, Washingtonians with concealed gun permits have an specific PRA exemption, RCW 42.56.240(4) & RCW 9.41.070 to protect certain privacy interests. Thanks to the Open Records blog for the lead.
SECOND UPDATE 3/12
Sam Taylor at the Bellingham Herald has posted an update on his blog about this case -- the requester filed suit before the City could file. The post cites to the earlier post on this blog.
Washington law provides that public records must be promptly provided, with limited exceptions.
So make a public records request.
And get sued by the government.
This story from the Bellingham Herald describes what the City of Bellingham is doing.
What this argument overlooks is that Bellingham or any other public agency has absolutely no motivation to sue requesters – and every reason not to sue requesters – unless the agency believes the matter is very likely going to end up in court no matter who files suit.
Why? If an agency sues and the requester wins, the agency not only has to pay its own costs, it also will likely have to pay the requester’s attorney fees and costs, along with the daily penalty. But if the agency wins, the agency cannot recover attorney fees from the requester. Either way, the agency will have to pay for at least its half of the litigation costs. The only “benefit” to an agency filing suit is to limit daily penalties by trying to have the issue resolved promptly.
Agencies have better ways they can use taxpayer dollars to serve the public than suing requesters. If the requester is not going to file a lawsuit, the agency will not be subject to attorney fees, costs and penalties. So an agency has no reason to expose itself to those potential costs unless the agency has a strong basis for determining that the requester will file suit if the agency does not.
Why would an agency file a suit against a public records requester? To save taxpayer dollars.
As noted in this article in the Bellingham Herald, the City of Bellingham City Council has voted to seek a court ruling that certain records are exempt. The requester is an attorney who is already planning to sue the City over an accident, so the records dispute was destine for court. By being proactive, the City is saving taxpayer dollars by seeking a quick resolution that will minimize daily penalties if the court rules the City was not correct in its interpretation of the Public Records Act.
More and more frequently, attorneys and others are using the Public Records Act, rather than discovery, to obtain records as part of a lawsuit. Why? The PRA provides for daily penalties and mandatory attorney fees. The penalties and fees, of course, are paid by taxpayers. All the more reason that cities like Bellingham are taking proactive steps to minimize this taxpayer liability.
Note, the Herald article quotes Foster Pepper attorney Ramsey Ramerman.
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).
Here is the March 18 Sunshine Committee agenda:
Public Records Exemptions Accountability Committee
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
9) RCW 42.56.330(7) – Personally identifying information of persons who use transponders and other technology to facilitate payment of tolls.
-- Staff presentation.
-- Committee discussion.
10) RCW 42.56.330 (8) -- Personally identifying information on an ID card that contains a chip to facilitate border crossing.
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.
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.
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.
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
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.
In last year's performance audit entitled "Open Public Records Practices at 30 Government Entities," the Washington State Auditor objected to the City of Seattle's practice (modeled after the State) of treating each department of City government as a separate entity. These departments include such large and diverse operations as Seattle City Light, Seattle Municipal Court, the Department of Transportation, Seattle Police, Seattle Fire and the Department of Public Utilities (e.g. water and sewer). The City changed that practice after the audit report. It is now going an extra step to look at incorporating the "best practices" that the Auditor highlighted in its report. Starting Friday, February 27, the Special Committee for Open Government will hold a series of hearings and taking public comment on how the City can enhance its practices. Bravo Seattle.
UPDATE: Here is the press release, with addional details.
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