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

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).

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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.

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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.

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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.

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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.

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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.

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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

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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.

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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.   

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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.

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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.

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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. 

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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.

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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.

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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. 

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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.

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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. 

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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. 

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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.

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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. 

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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

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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 fruer@foster.com for assistance.

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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.

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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).

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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.”

And,

“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.”

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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.

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Update 8/3

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. 

Update 7/30

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"

Update 6/11

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. 

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A 'Tweet' OPMA violation?

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

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

Headlines like this recent headline in the Everett Herald hurt public trust, even when no laws are broken.  A post on the Open Records Blog (scroll down to the third post) demonstrates how at least some members of the public will react.

To ensure compliance with the OPMA, the Public Records Act and the retention laws, elected officials and public employees must make sure they understand all of their legal requirements before they use Web 2.0 sites. 

Here are some additional resources on the use of Web 2.0 sites by Elected officials and public employees:

City Council Handbook Wiki

Gov Social Media Wiki

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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.
 

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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.”

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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.

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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." 

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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 

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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.

Original Post

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.

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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. 

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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

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Update 7/12/09

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"

Update 7/7/09

Spies should also stay off Facebook:  "British spy chief outed on wife's Facebook page" 

Update 6/2

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. 

Earlier this year the Obama administration highlighted some other issues with the "terms of service" users of YouTube and other Web 2.0 sites, such as one-sided reimbursement clauses and sites' use of cookies to track visitors.  Both were inconsistent with federal law or federal policy. 

Here is an article reviewing the use of Web 2.0 products by governments throughout the country.

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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.)

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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:

"To Blog or Not to Blog -- that is the question"

"Lauderdale city attorney tells politicians: Stay off Facebook"

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Here are recent open government headlines from Washington State -- thanks to WaCOG andOg-Blog for finding these.

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

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

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

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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. 

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Update 7/5

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.

Original Post

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. 

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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.  

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Here is a very helpful new blog, "Unredacted," that records the Open Government Ombudsman's informal opinions on Open Government issues.   Transparency at work. 

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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. 

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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. 

Here are posts on the ruling at the Bellingham Herald,  Washington Policy Blog, the Og-Blog and the Reporters Committee for Freedom of the Press blog.

Foster Pepper represented the City of Federal Way in this case.

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Update

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. 

Original Post

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.

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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.

 You can download PDF copies of the briefs here.  You can watch the arguments live starting at 1:30 on Tuesday on TVW.

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Update 6/6

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. 

Update 6/2

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.

Update 5/19

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.

Update 5/16

Here is some more food for thought on the President's reasons for not releasing the photos.

Update 5/15

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. 

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The Department of Justice posts summaries of all FOIA decisions on a monthly basis.  Here is the post for April 2009. Here are earlier posts for March, February and January 2009.

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Update May 31, 2009

U.S. Attorney General Eric Holder’s Memorandum For Heads of Executive Departments and Agencies provides a nice summary of what the presumption of openness means.  The Attorney General identifies three ingredients:

1. Only assert an exemption if nondisclosure serves the exemption’s public purpose.

2. When possible, redact exempt information rather than withhold an entire document.

3. Never assert an exemption merely to hide mistakes or because of abstract concerns.

Here is what the memo actual states:

             First, an agency should not withhold information simply because it may do so legally. I strongly encourage agencies to make discretionary disclosures of information. An agency should not withhold records merely because it can demonstrate, as a technical matter, that the records fall within the scope of a FOIA exemption.

             Second, whenever an agency determines that it cannot make full disclosure of a requested record, it must consider whether it can make partial disclosure. Agencies should always be mindful that the FOIA requires them to take reasonable steps to segregate and release nonexempt information. Even if some parts of a record must be withheld, other parts either may not be covered by a statutory exemption, or may be covered only in a technical sense unrelated to the actual impact of disclosure.

             At the same time, the disclosure obligation under the FOIA is not absolute. The Act provides exemptions to protect, for example, national security, personal privacy, privileged records, and law enforcement interests. But as the President stated in his memorandum, "The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears."
 

ORIGINAL POST

One way to tell a good public records law from a bad law is that a good law starts with a presumption that all records are open and then defines exceptions.  A bad law will presume the opposite and instead define what records have to be disclosed. 

Washington law has always included the presumption of disclosure.  Here is a story about South Dakota, which just amended its public records law to include the presumption of disclosure. 

Washington law codifies this presumption in two provisions of the Public Records Act:

RCW 42.56.550(1) provides "The burden of proof shall be on the agency to establish that refusal to permit public inspection and copying is in accordance with a statute that exempts or prohibits disclosure in whole or in part of specific information or records."

RCW 42.56.030 then heightens the burden an agency will have to meet before it can withhold a record by providing that the Act "shall be liberally construed and its exemptions narrowly construed" to promote the Act's stated purpose of allowing the public to stay informed about government.   

The result of these two provisions is that an agency must disclose any public record, unless it can prove that under a narrow interpretation of a statutory exemption, the record is exempt from disclosure. 

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Here is a post from Og-Blog on the open government record of Sonia Sotomayor, President Obama's nominee for the Supreme Court.   

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Update 5/21

Here's a good editorial from the Longview Daily News.  Thanks to the Og-Blog for pointing it out.

Original Post 5/15

As noted in this article from the Spokesman Review, the Sunshine Committee voted on Tuesday, May 12 to delay any vote on the Public Records Act "exemption" that makes most records of state legislators exempt from the PRA.  The article quotes Ramsey Ramerman, the editor of this blog and member of the Sunshine Committee. 

Here are more details from the Washington Policy Blog.  And here's a post from the Open Records blog giving the issue some national attention.

The vote was influenced by several factors, including that only 8 of the 13 members were present; and, a concern that some legislative records may have constitutional protections. The matter will be on the Committee's July agenda. 

Here are two earlier blog posts on this subject:

Sunshine Committee considers clearing the clouds over the capitol

How the Legislature has exempted itself from the Public Records Act

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

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

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

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

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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 
   

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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. 

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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.  

Original Post

As of Friday afternoon, April 10, 2009, the Seattle City Council and Mayor have decided not to hold closed-door budget meetings, according to this Seattle Times article.

This is a change from the City's earlier decision to hold close-door meetings, which was criticized by the Seattle Times in this article and editorial as possibly violating the Open Public Meetings Act. 

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UPDATE

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.

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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. 

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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.
 

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Arkansas:

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. 

California :

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.

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The title of this article says it all "Openness is basic to democracy." 

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UPDATE 1

ProPublica, an investigative journalist site, has collected links to all of the States' recovery sites.   

San Francisco has started its own recovery site. 

Finally, a private entity has launched "Recovery.org" to track stimulus spending. 

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.

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Federal government:

U.S. Attorney General Eric Holder has recently issued this memorandum for the implementation of President Obama's January 21 FOIA directions.  All of President Obama's efforts are nicely highlighted in this editorial in The Daily News, from Longview, Washington. 

A recent study of freedom of information laws throughout the world found that the United States has one of the highest ranked freedom of information laws in the world.  This was before President Obama's recent initiatives.

California:

In a recent article, the Sacramento Bee, reported on the open government issues that arise from a mayor using "volunteer" private help.  The article notes that under California law, it is "unclear about whether the emails, text messages, voicemails and other writings produced on non-City equipment and property are public records."

Under Washington law, every record that (1) is related to the conduct of government and (2) is "prepared, owned, used, or retained" by a government is a public record. RCW 42.56.010(2).  Thus records related to the conduct of government that are located on non-public agency equipment will be still be public records as long as the records are used by the agency. 

Maryland:

The Maryland general assembly (its lower house) has just passed new legislation that purports to subject the Maryland legislature to the state's public records and open meetings laws. According to at least one legislator, however, the changes actually make the legislature more opaque. For public records, the new legislation would exempt all emails to and from legislators.  Under current law, some of these emails may have to be disclosed.  For meetings, legislation allows party caucuses, budget meetings between party leaders and lunch meetings with the governor to remain private. These exceptions authorized by the new law may allow legislators to make important decisions outside of the public eye. 

In Washington, the laws permit even greater legislative secrecy.  As noted in this post, the Washington Legislature has defined "public records" to exclude all of a legislator's records. Likewise, the Legislature has excluded itself from the definition of "public agency" in the Open Public Meetings Act, meaning that none of its meetings are subject to that law.

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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.

Click here for the full article on the MRSC website.

Here are links to other open government articles by Foster Pepper available on the MRSC website:

January 2009 Open Government Advisor:
Supreme Court Reverses the LARGEST Court-Assessed Public Records Act Penalty in Washington State History – Because it was TOO SMALL: What Agencies can Learn

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
 

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As noted by Brad Shannon in this Olympian article  the Sunshine Committee took testimony on a proposal by Committee chair and elected Seattle City Attorney Tom Carr to remove the "exemption" that makes many legislative records exempt from disclosure.  The Committee hopes to vote on a proposal at the next meeting.  See the post below for more on the exemption.  The article quotes Foster Pepper Public Disclosure Team chair Ramsey Ramerman, who is also a member of the Sunshine Committee. 

Here are editorials from the  Tacoma News Tribune and the Olympian on the exemption. 

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Update 3

As noted by the Seattle Times, SSB 5130 -- the prisoner injunction bill -- is now law.  It passed the Legislature and was signed by Governor Gregoire Friday, the last day of Sunshine Week.  Because the law contains an "emergency" clause, it became effective immediately upon being signed. 

Update 2

As hinted at by Greg Overstreet over at Og-Blog, the Olympian's position in Friday's editorial in support of the prisoner access bill is different from the Olympian's position in an editorial this summer.  In that earlier editorial, the Olympian opposed the Attorney General's efforts to deny prisoner access to the PRA. But last summer, the the Attorney General was arguing for a complete bar on access for prisoners, while SSB 5130 only allows jurisdictions to deny access if they first prove the prisoner is abusing the PRA. In short, the issues are different and the Olympian's current position reflects a more balanced approach to the issue.

Here's an AP article on the bill that again highlights the challenges the Department of Corrections faces because of Parmelee's abuse..

Updated 1

Here is the February 27 editorial from the Olympian supporting the prisoner access bill.  

It's unusual for a newspaper's editorial board to support legislation limiting access to public records. But we find ourself in that position on  Senate Bill  5130  and House Bill 1181.

Original Post

As noted in these two articles from the Seattle Times and the Seattle Weekly, pending legislation  - SSB 5130 - that would allow courts to bar prisoners from making public records requests is making its way through the House and Senate in Olympia.  The bill, which seems to have momentum, would only apply to prisoners who are using the Public Records Act to harass public employees.

Prisoners may have many legitimate reasons to seek public records, and the legislation is not aimed at barring legitimate requests.  But some prisoners, most notoriously Allan Parmelee — doing 17 years for firebombing two attorneys’ cars – have developed a cottage industry of making requests in hopes of tripping up agencies and intimidating public employees.  Here’s an ABA article describing his exploits and abuse of the PRA.  A Google search for "Parmelee" and "public records" will provide many more details. 

Taxpayers have spent well over $100,000 to subsidize Parmelee’s public records business so Parmelee can intimidate and harass.  This type of abuse in no way typifies your average user of the Public Records Act, but it is not unique. Abusive requests hurt transparency by diverting resources.  Toby Nixon, the President of the Coalition for Open Government, notes another risk to transparency, arguing:

"If we don't give the DOC and possibly other agencies the ability to deal with Allan Parmelee, it ends up poisoning the situation for everyone else," Nixon said.

Transparency is not served by the abuse of the PRA.  But as drafted, the PRA can easily be abused, particularly if someone is interested in harassing a government agency or public employees.  The prisoner-injunction legislation is narrowly tailored to address one of the abuses without limiting transparency under the PRA. 

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This recent Olympia editorial highlights the fact that Legislators’ emails are not subject to the Public Records Act.

But there is no simple “legislative exemption” in the PRA. Instead, you have to look at two statutes. 

It starts with the definition of “public record” in RCW 42.56.010(2). That definition provides that “public records means legislative records as defined in RCW 40.14.100.” 

The definition of “legislative record” in RCW 40.14.100 then expressly excludes “reports or correspondence made or received by or in any way under the personal control of the individual members of the legislature.” In other words, records held by individual legislators, including their emails, are not “legislative records” and thus not “public records.”

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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.    

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 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. 

Washington State has had an Open Government Ombudsman position since 2004, when the position was created by Attorney General Rob McKenna. 

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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.

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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.

UPDATE

Greg Overstreet over at Og-Blog provides a different perspective, at least implying that allowing agencies to sue might discourage requesters from making requests.

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.
 

ORIGINAL POST

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. 

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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).

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UPDATE 3/6

Here is the March 18 Sunshine Committee agenda:

Public Records Exemptions Accountability Committee

Special Meeting

Conference Room 148

2425 Bristol Court S.W., Olympia, WA

March 18, 2009, 9:00 a.m. – 1:00 p.m.

1)      Call to Order

2)      Adoption of agenda for March 18, 2009.

3)      Review and approval of November 12, 2008 meeting minutes.

4)      Discussion of bills pending in Legislature - Senate Bills 5294,5295, 5995, House Bill 2087

5)      Possible modifications to Exemptions Criteria Worksheet and Schedule of Review.

        – Committee discussion

        -- Possible vote

6)      Bylaws – Possible amendments to Article V: Meetings and Article VI: Citizen Input.

7)      RCW 42.56.230(1) -- Personal information in files for students in public schools, patients or clients of public institutions or public health agencies, or welfare programs.

RCW 42.56.230(2) -- Personal information in files on employees, appointees, or elected officials if disclosure would violate their right to privacy.

RCW 42.56.250(3) – Address, phone numbers, email addresses, SSNs, etc., of public employees or volunteers held by public agencies.

--Discussion on the formation of a subcommittee to study privacy exemptions, to implement motion approved at the November 12, 2008 meeting.

8)      RCW 42.56.010(2) Legislative Records

--Public comment.
--Committee discussion.

9)      RCW 42.56.330(7) – Personally identifying information of persons who use transponders and other technology to facilitate payment of tolls.

-- Staff  presentation.

--Public comment.

-- Committee discussion.

10)     RCW 42.56.330 (8)  -- Personally identifying information on an ID card that contains a chip to facilitate border crossing.
--Staff  Presentation.

--Public comment.
--Committee discussion.

11)     RCW 42.56.330(2) – Residential addresses and phone numbers in public utility records

RCW 42.56.335– Law enforcement access to customer records held by a public utility district or municipality owned electrical utility.

--Staff Presentation.

--Public comment.
--Committee discussion.

12)     RCW 42.56.330(6) – Information obtained by governmental agencies and collected by the use of a motor carrier intelligent transportation system or comparable information equipment.

--Staff presentation.

--Public comment.

--Committee discussion.

13)     RCW 42.56.330(1) – Valuable commercial information, trade secrets, etc., supplied to the Utilities Transportation Commission

RCW 80.04.095 – Utility records filed with the Utilities Transportation Commission containing valuable commercial information. 

--Staff presentation.

--Public comment.

--Committee discussion.

14)     Adjourn.

Original Post

The next Sunshine Committee meeting is set for Wednesday, March 18, 2009.  We will post the agenda once it's available. 

It will be from 9 a.m. - 1 p.m. at the Attorney General's Bristol Court Building:

2425 Bristol Court SW
Conference Room 148
Olympia, Washington

Here is the Sunshine Committee's 2008 Report to the Legislature.

Legislation with the Sunshine Committee's unanimous recommendations, SSB 5295 , was voted out of committee.  Its sibling bill with the non-unanimous recommendations, SB 5294, (both sponsored by committee member Senator Adam Kline) did not move from committee. 

The Sunshine Committee itself is facing possible extinction.  SSB 5994 would eliminate the Committee in June 2010, while SSB 5588 would suspend the committee until 2011.  Another bill that would have immediately terminated the committee, SB 5119, is not moving forward.

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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.  

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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. 

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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

Other bills

These are bills that do not appear likely to make it out of committee or will not make significant changes to the law.

HB 1105.  Work Product
HB 1106.  Agency Injunctions
HB 1107.  Insurance for PRA disputes
HB 1316.  Enjoining harassing requesters
HB 1317.  New exemption of personnel records of criminal justice employees
SB 5249.  Unpaid costs
SB 5250.  Increase amount agencies can charge for copies
SB 5251.  Recover full copying costs
SB 5293.  In-camera review of exempt records
SB 5294.  Non-unanimous Sunshine Committee recommendations

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