The Jackson Fire Department issued a memo on social media, while the City itself is still developing a full policy. The Department’s memo encourages employees not to: publicly discuss issues that might be detrimental to the Department or that might conflict with the duties and ethics of a firefighter; to air personal grievances; and clarify that their opinions are their own and not those of the Department.

The rise of social media outlets like Facebook, LinkedIn, and Twitter presents an important communication opportunity for public entities and their constituents. However, the use of social media needs to be carefully planned to avoid pitfalls. Social media is, by definition, an interactive tool intended to create conversations among users and provide a venue for commentary and feedback. For public entities, the tool is useful for broadcasting to a growing internet audience, but allowing feedback and conversation can be a risk. Like the Jackson Fire Department, every government entity will need to have a conversation about the inherent conflict between an individual’s free speech rights and the government’s legitimate right to protect the government service.

Although it is important for public entities to use as many of these communication channels as practicable, the constant need to update and monitor social media outlets drains staff resources.

Public entities must also consider how they will comply with their archiving and public records responsibilities when communicating in an electronic format.

It should be clear to constituents that messages intended for the public agency should be conveyed through the agency’s official website. For example, a public records request or other official query won’t necessarily be recognized via Twitter or Facebook.

These considerations are plaguing the private sector, as well. McDonald’s launched a Twitter campaign last week with the hash tag: “#McDstories.” 

When users co-opted the hash tag to distribute negative stories about McDonald’s, the company rapidly ended the campaign. The company stated in an email to the Silicon Valley Business Journal: "With all social media campaigns, we include contingency plans should the conversation not go as planned. The ability to change midstream helped this small blip from becoming something larger." This is a wise strategy for any entity using social media, public or private.
 

The teacher filed suit against the school district seeking to stop disclosure of the records. Ultimately, the Court of Appeals held the teacher’s suit was valid, but that these particular records should be disclosed because the public interest outweighed the teacher’s right to privacy. The disclosure was mandated to a large degree because a reprimand had been issued. California agencies, however, may disclose personnel disciplinary files whenever the complaint is “substantial” and “there is reasonable cause to believe the complaint is well-founded” regardless of the actual disciplinary outcome.

As a result, California public agencies can begin to implement the best practices seen in similar jurisdictions (including Washington State), where disclosure exemptions are permissive rather than mandatory. When “reverse” public records lawsuits are allowed and an agency believes that a record’s release may be sensitive to a third party, there is generally no bar to an agency informing the third party of its intent to release records (so long as the agency is still acting within appropriate response times and other public records act requirements). For California agencies, unlike Washington, this is the only way to seek court review before disclosure because the agencies themselves are barred from filing lawsuits asking for guidance.
 

“While pending trial back in 2002… my attorney provided me with a statement made by my co-defendant Breena Johnson. I want a copy of that statement.”

Perhaps unsurprisingly, the designated public records officer sought clarification from Levy, because the records officer was neither Levy nor his attorney. Today’s decision again points out that agencies managing public records requests are allowed to seek clarification and don't need to be mind readers.

As the records officer tried to clarify and fulfill the request without heedlessly duplicating responses to a previous request that Levy had made, Levy first denied he had made a previous request. Then Levy acknowledged the previous request.

Finally, after 59 days and several rounds of confounding correspondence, Levy was in possession of the two documents he apparently had sought. For its troubles in interpreting Levy’s request and conscientious attempt to not burden an inmate with the cost of paying for records he already had, the County was rewarded with a public records act lawsuit.

Levy’s lawsuit alleged that the County’s request for clarification was unwarranted and that the 59-day “delay” was unreasonable. The Court of Appeals found that the County’s request for clarification was reasonable and that there was no delay. The County did inadvertently omit one document when it finally understood what Levy was requesting, but realized its oversight and sent out the document one day later.

Although the Court does not break new ground, the decision serves as a reminder about the need for diligence and documentation in responding to public records requests. Snohomish County was able to show the patent ridiculousness of Levy’s lawsuit by demonstrating that it promptly responded to every communication from him and was striving to understand his request. This case is another example of inmates using the Washington PRA for other than the act’s intended purpose of fostering public access to documents. Such cases caused the legislature to restrict the rights of inmates under the PRA.

Prior to October 2006, the Council reserved the beginning of Council meetings for the public to speak on topics not on the meeting agenda. This segment of the meeting devoted to non-agenda items was televised. In October 2006, the Council unanimously voted to change the Council meeting format to move the segment on non-agenda items to the end of the Council meeting and to not televise that segment. Members of the public were still allowed to address the Council regarding items on the agenda during the regular Council meeting, which continued to be televised.

In 2009 the Council voted again to alter the format of the Council meetings by terminating the segment on non-agenda items. In its place, the Council began holding monthly meetings at different locations in the community where member of the public could discuss issues not included on the Council meeting agenda.

Following the 2009 format change, Lee Smith and Donna Gagnon-Smith sued the Council claiming that the rule changes were intended to limit their free speech rights under the First Amendment of the Constitution. The Smiths regularly spoke before the Council on non-agenda items and even one Council member admitted that one of the reasons for changing the format of the Council meetings was to “turn off the cameras” for “a couple” that spoke before the Council “all the time.”

The Federal District Court of Connecticut reviewed the actions of the Council under the rules governing limited public forums. The Ninth Circuit has similarly held that city council meetings are limited public forums. White v. City of Norwalk, 900 F.2d 1421, 1425 (9th Cir. 1990). In a limited public forum, a governmental entity may impose restrictions on speech that are reasonable and viewpoint neutral. Applying this test, the Connecticut court held that the Council was entitled to restrict public comments at Council meetings to topics on the agenda, because an individual’s viewpoint does not affect whether they are permitted to speak. The court also held that the fact that the Council may have been motivated to institute the format change to restrict the Smiths’ speech is irrelevant, because the rule actually passed by the Council was viewpoint neutral. See Hill v. Colorado, 530 U.S. 703 (2000). Therefore, the court held that the Smiths had not suffered a deprivation of their First Amendment right to freedom of speech and dismissed the action.

In response to FOIA requests, DOJ began an electronic search of its files encompassing the dates of Justice Kagan’s tenure as Solicitor General. The search identified 1400 pages. After review, DOJ concluded that 86 pages were responsive to the requests under FOIA.

DOJ released 45 of the 86 pages, and withheld 41 pages under two theories: first, that they were not “agency records,” and second, that they fell under the “work product privilege” (exemption 5 to FOIA). DOJ released a log (often referred to as a “Vaughn Index”) providing its reasoning for every withheld or redacted document.

Plaintiffs challenged: 1) the adequacy of the initial search; 2) the determination that the 41 pages were not “agency records;” 3) the claim of attorney work product on six redacted documents; and 4) the claim concerning the deliberative process privilege.

1. Adequacy of the Search. The Court concluded that DOJ’s search of its paper, electronic, and email files was adequate, and that plaintiffs’ conjecture that there should be additional records was insufficient to justify a different conclusion. See, Weisberg v. Department of Justice, 705 F.2d 1344 (D.C. Cir. 1983); Iturralde v. Comptroller of the Currency, 315 F.3d 311 (D.C. Cir. 2003) (agency’s search must be reasonably calculated to uncover all relevant documents, measured by the search methods and not by the results of the search).
    
2. Agency records. In rejecting the Plaintiffs request for the Solicitor General’s correspondence about her nomination to the Supreme Court, the D.C. Circuit Court found the correspondence “was not relied upon by the [Office of Solicitor General] in carrying out its business, but rather was used for a purely personal objective…the documents were personal, not attributable to the agency, and therefore were not “agency records.”
    
3. Exemption 5 to FOIA, and the “Work Product Privilege.” Exemption 5 to FOIA allows an agency to withhold records that would be privileged from discovery during litigation. This exemption incorporates the work product doctrine and the deliberative process privilege. Department of the Interior v. Klamath Water Users Protective Association, 532 U.S. 1 (2001). Applying Exemption 5 and the attorney work product doctrine, the court rejected plaintiffs’ argument that a specific claim is necessary to invoke the doctrine. Instead, an objectively reasonable belief that litigation is a real possibility triggers the privilege. The Court did not reach the deliberative process question.

For reference to Washington’s PRA exemptions for attorney-client and other privileges that may give rise to exemptions from disclosure, see WA Court of Appeals Decision in Zink v. City of Mesa Has Many Public Records Act Lessons for Municipalities.
 

The document being sought was a seating chart of the County’s Building and Planning Department where the names of the new occupants (one of whom was the son of a County Commissioner) had allegedly been placed on the seating chart some time before the employment selection process was even completed. The date that the seating chart was first created was therefore crucial. But the County made no effort to look for the document on the hard drive of the old computer just recently used by the person who had generated the chart. The Court held that a search of the digital hard drive on the old computer was mandatory in these circumstances.

Not only had the County not searched for electronic records that were requested where those electronic records could easily have been searched, but the County later refused to answer interrogatories about its actions in the PRA lawsuit eventually brought by the Neighborhood Alliance. In perhaps the most far reaching part of its decision, the Supreme Court held that a PRA lawsuit is like any other, and the defendant agency must respond to reasonable discovery requests, including interrogatories and depositions, unless it is first able to secure a protective order from the court.

In other parts of the case, the Supreme Court held that (1) the remedial penalties of the PRA are triggered when the agency fails to disclose and produce records, and any later release of the documents only serves to stop the clock, but not eliminate, the daily penalties; (2) no causation is required to prevail in a PRA lawsuit – subsequent events and subsequent disclosure do not affect the wrongfulness of the agency’s initial failure to disclose the documents; (3) when the trial court finds that the PRA has been violated, daily penalties are mandatory, and only the amount is subject to the trial court’s discretion; (4) the fact that the requestor of documents may already have a copy of the documents does not relieve an agency of the obligation to produce those same documents in response to the request; and (5) there is always an obligation to “disclose” the existence of requested documents, even if there is an exemption from an obligation to “produce” the documents.
 

Ken Bricker is a former contractor who owned a home at which he did his own electrical work. An L&I inspector issued a citation related to the work. Bricker appealed, and sent a letter to the inspector, in which the Public Records Act (PRA) was not mentioned, asking for “a copy of all permits issued and copies of inspections and correction requests by all inspectors at that residence.” The L&I inspector filed the letter, assuming that the records would be made available during the contested hearing over the citation.

Bricker then made several attempts to obtain the records, including telephone calls to L&I personnel who did not recall the calls. It turned out that there were somewhere between 3 and 16 responsive records. Bricker both overturned the citation and won the PRA trial where he was originally awarded penalties totaling over $500,000.00. But the trial court later reconsidered, and broke the documents into two groups, the original 16 records and 3 other records that were duplicates, except for signatures. The trial court awarded $90/day for the first group and $15/day for the second group, stating that the PRA was about accountability, but absent bad faith, the PRA is not meant as compensation for damages.

Bricker appealed the trial court’s reconsideration, which changed the award from a per-document per-day award to a per-group per-day award, reducing the award to just under $30,000.00 plus attorney fees. L&I cross-appealed the high-end award, claiming out that, absent bad faith and with less culpability that in a prior case in which a $45/day penalty was found appropriate, the high end range (the maximum penalty is $100 per day) was an abuse of discretion.

The Court of Appeals affirmed the trial court on both issues.. With respect to the L&I claim that the high per day penalty was error, because there was no bad faith, the Court of Appeals noted that Bricker’s request for documents was clear, the agency made no response even after Bricker followed up on his request, and the L&I inspector had received no PRA training and made no inquiries about how to handle Bricker’s request for information.

On the other hand, in response to Bricker’s appeal, the Court held that it is not an abuse of discretion for a trial court to decline to award penalties for each document per day. Pointing out that other courts, including Yousoufian, had upheld awards based on categories of related documents, this Court approved the trial court’s effort to assess different penalties for different groups of documents, to which (as a group) different Yousoufian factors applied.

In response to a request for records, the League claimed that it was not a public agency subject to the New Jersey Open Public Records Act (OPRA). The trial court and Court of Appeals agreed with the League. On August 23, 2011, the New Jersey Supreme Court unanimously reversed the lower courts and found that the League was a public agency. Fair Share Housing Center, Inc. v. New Jersey State League of Municipalities, No. 066228. The court distinguished the term “public body” under that state’s Open Public Meetings Act (OPMA), from the term “public agency,” which it found far more encompassing under the OPRA. In contrast to Washington State court decisions, the fact that the New Jersey League was found not to engage in “governmental functions” was not relevant to the inquiry. See the discussion of West v. Washington State Association of Counties (2011) and Telford v. Thurston County Board of Commissioners (1999) in the posting of June 2, 2011: “Washington Association of County Officials Subject to Open Public Meetings Act.” One of the factors considered by Washington courts in determining whether an entity is an “agency” or the “functional equivalent” of an agency and subject to the Washington Public Disclosure Laws is whether the entity performs a governmental function.
 

The court distinguished cases in which records were destroyed after a request had been made. See Yacobellis v. City of Bellingham, 55 Wn. App. 706 (1989). Rather, the court found that DNR had not delayed in its efforts to produce available records and that it had no responsibility to create or produce a record that was now non-existent. See Building Indus. Ass’n of Wash. v. McCarthy, 152 Wn. App. 720, 734 (2009).

The court did, however , (by a 2 to 1 vote) determine that DNR’s failure to timely acknowledge a PRA request within 5 business days constituted an automatic violation of the PRA. That DNR responded and produced records before a lawsuit was commenced was not controlling. The court remanded the matter to the trial court to consider an award of attorney fees and penalty under former RCW 42.56.550(4).
 

The case was brought by a citizen who alleged that a police officer sexually and physically assaulted her during the course of a traffic stop. Investigations were conducted by the cities of Puyallup (criminal) and Mercer Island (internal investigation).  Each investigation found the claims to be unsubstantiated.  The case garnered media attention, and several journalists and news organizations, in addition to the complainant herself, made public records requests for the investigative reports.  The cities of Puyallup and Mercer Island informed the requestors that the documents would be produced absent an injunction, which the Police Guild and the implicated officer sought (though not before at least one of the reports had been released and information published by some media sources).

Subsequent records requests and demands for injunctions led to in camera review of the documents by a Kitsap County Superior Court judge, who determined that the reports should be withheld under the investigative report exception to the PRA, RCW 42.56.240(1).  Injunctions were also sought against requestors in Pierce County Superior Court.  That court determined that the Puyallup report could be withheld from disclosure under the personal information exemption to the PRA, former RCW 42.56.230(2) and privacy concerns under RCW 42.56.050.  Injunctions enjoining disclosure of the reports were granted in King County Superior Court on the same grounds.

The Supreme Court accepted direct review.  The lead opinion (4 justices) overturned the King and Pierce County decisions, which had determined that the reports could be withheld in their entirety based on privacy concerns under the PRA’s personal information exemption.  Personal information is not defined in the PRA, but has been defined by the Supreme Court as “information relating to or affecting a particular individual, information associated with private concerns or information that is public and not general.”  Bellevue John Does 1-11 v. Bellevue Sch. Dist. No. 405, 164 Wn.2d 199, 211, 189 P.3d 139 (2008).  The Court rejected the trial courts’ determination that the reports should be withheld in their entirety, and instead instructed the agencies to produce the records, but redact identifying information (i.e. the officer’s name, social security number or other identifying data) in order to protect personal privacy interests.  The Court compared the unsubstantiated allegations against police officers with the Bellevue John Does case, where the Court found the names of public school teachers who are the subject of unsubstantiated allegations of sexual misconduct are exempt from disclosure, but the underlying investigative reports (with names redacted) were subject to release.  The Court also addressed the investigative records exemption to the PRA, RCW 42.56.240(1) (raised in the Kitsap County Superior Court case), and found it inapplicable, as the records are not essential to effective law enforcement.  Disclosure of the records (without identifying information) was justified by the public’s “legitimate interest” in knowing how the allegations of misconduct were investigated. Opinion at 18-22; see also RCW 42.56.050.

In contrast, the concurrence/dissent (4 justices) asserted that the entire record should be released, including the officer’s name.  Justice Madsen wrote that an officer’s name does not need to be redacted in an investigation or complaint against a police officer for sexual misconduct, because such allegations “in no way involve the details of one’s personal and private life.” Concurrence/dissent at 1.  “Public records relating to alleged misconduct of public servants and who government agents investigate such allegations are quintessential examples of the kind of information that the PRA opens to scrutiny.  The public has the right to know… .” Concurrence/dissent at 2.  That opinion would hold that the exemptions raised by the Police Guild and the officer did not justify nondisclosure.

Finally, Justice Johnson wrote a lone dissent finding that the two investigative reports “fit squarely” within the PRA exemption for investigative records, thus should not be disclosed at all. He found the lead opinion to be inconsistent with Bellevue John Does.

The practical result of these decisions is that disclosure outweighs privacy concerns in the arena of public employees’ misconduct. Investigative records detailing claims of misconduct must be released and available to the public. This will likely apply across the board to all public sector employees, and will not be limited solely to law enforcement or education. Even if allegations are unsubstantiated, the record must be released, though with redaction of names or personal identifying information.

Click here for a recent Seattle Times article on the decision.

The decision by the Court of Appeals is not published, and therefore is not binding precedent. However, it does provide legal framework for similar claims arising out of a PRA judgment. In addition, the Court awarded further attorney fees to Yousoufian arising from his successful appeal.
 

In late June, the Court denied a request for review of a lower court ruling.  That decision left in place a 2010 appellate court decision which held that formal citizen complaints against police officers were public records and could be released under New Mexico's Inspection of Public Records Act (“IPRA”).  Cox v. New Mexico Dept. of Public Safety, 148 N.M. 934, 242 P.3d 501 (N.M. App. 2010). The New Mexico Department of Public Safety sought to withhold the records, claiming that the citizen complaints fell under an IPRA exemption for "matters of opinion in personnel files" because the records relate to an officer’s job performance.  However, the New Mexico Court of Appeals found the exemption inapplicable, finding that citizen complaints necessarily arise from an officer's role as a public servant, not the employment relationship with a public agency.  The appellate court noted that internal investigation reports and employer opinions generated as a result of citizen complaints remain exempt under as “matters of opinion in personnel files.”  However, the complaints themselves cannot be withheld.  242 P.3d at 507-08.  The court commented that though the Department of Public Safety “is the keeper of the information contained in the citizen complaints, the information continues to belong to the citizen who made the complaint.”  Id. at 507. Even if the allegations or complaints are untrue, it is not a basis for withholding information from the public.  Id.

A similar debate is ongoing in Seattle, as noted in our earlier blog post.  The Seattle City Attorney’s office recently appealed an arbitration decision that ordered the Seattle Police Department to stop releasing the names of officers found to have engaged in misconduct. Washington’s Public Records Act provides a strongly worded mandate for broad disclosure of public records. Exemptions are narrowly construed.  See Yakima v. Yakima Herald Republic, 170 Wn.2d 755, 791, 246 P.3d 768 (2011).  The City of Seattle argued that the arbitrator’s decision violates the PRA, as there is no applicable exemption that would allow withholding the names.  The Seattle Police Guild argued that the “law-enforcement” exemption applies which prevents law enforcement or investigative records from public inspection and copying.  See RCW 4.56.240.  The case is currently pending in King County Superior Court.

“Name release” disputes arise regularly in many contexts, particularly education.  In a 2008 Washington case, Bellevue John Does 1-11 v. Bellevue School District 405, 164 Wn.2d 199, 189 P.3d 139 (2008), the Washington Supreme Court held that the identities of public school teachers accused of sexual misconduct may be disclosed to the public when the misconduct is substantiated or the teachers’ conduct resulted in some form of discipline, even if only a reprimand.  164 Wn.2d. at 205.  In contrast, the names of teachers who are the subject of unsubstantiated allegations are exempt from disclosure under the PRA.  Id. at 212.
 

In Pierce, a prisoner sought certain records from the city. Des Moines did not respond with a five-day letter as required by RCW 42.56.520, but responded “more than five business days” later. Des Moines disclosed the records prior to the prisoner lawsuit but “several weeks” after the prisoner had submitted a “Tort Claim” for damages. The “Tort Claim” was submitted several months after the prisoner’s request was submitted; the prisoner claimed that his letters and calls were ignored in that intervening period.

Several months after the records were disclosed, Pierce filed a lawsuit against Des Moines. The complaint alleged that Des Moines was liable “for failing to turn over public requested records in a reasonable amount of time.” On motion for summary judgment, the city successfully argued to the trial court that Pierce could not be a “prevailing party” entitled to daily penalties and attorney’s fees under RCW 42.56.550, because his lawsuit was not reasonably necessary to force disclosure of the records. In reversing the trial court, the Court of Appeals stated as a matter of statutory construction there is a second way in which a requestor can be deemed to be a “prevailing party.” RCW 42.56.550(4) provides, in pertinent part:

(4) Any person who prevails against an agency in any action in the courts seeking the right to inspect or copy any public record or the right to receive a response to a public record request within a reasonable amount of time shall be awarded all costs, including reasonable attorney fees, incurred in connection with such legal action. In addition, it shall be within the discretion of the court to award such person an amount not to exceed one hundred dollars for each day that he or she was denied the right to inspect or copy said public record.

(Emphasis supplied.)

Prior published decisions and the model PRA rules issued by the Attorney General had not dealt directly with these points. For example, WAC 44-14-08004(7) states that “A requestor is the ‘prevailing‘ party when he or she obtains a judgment in his or her favor, the suit was reasonably necessary to obtain the record, or a wrongfully withheld record was provided for another reason.” The rule is not, of course, incorrect, but it does not specify that a requestor can “prevail” by showing unreasonable delay in records production.

An earlier case, Daines v. Spokane County, 111 Wn.App. 342, 44 P.3d 909 (2002), held that a requestor who already has records is not a “prevailing party” in an action to require disclosure of those records. But no prior published decision dealt with the question whether an unreasonable delay prior to production of records is actionable and can give rise to statutory penalties and attorney’s fees. See, WA Court of Appeals Decision in Zink v. City of Mesa Has Many Public Records Act Lessons for Municipalities, posted on this blog on July 22, 2011.
 

The primary witness in the underlying criminal case had long evaded a court subpoena and was being held in jail as a material witness until he could be deposed. The prosecutors scheduled a videotaped deposition to preserve the witness testimony, fearing the witness would again disappear. The deposition was held in the Pierce County courthouse so that it would be easier for the jail guards to escort and guard the witness. At the parties’ request, Judge Cayce, the visiting judge from King County, was also present in the otherwise-empty courtroom to make rulings, if necessary, as the deposition proceeded. As it turned out, the witness did actually appear to testify, and the videotaped deposition was never offered nor produced at trial.

The criminal case involved the prosecution of Judge Michael Hecht, a sitting Pierce County Superior Court judge, who was alleged to have both solicited male prostitution and to have threatened one of them if he said anything about the judge’s interactions. Hecht was later convicted by a jury and sentenced by Judge Cayce.

The Tacoma News Tribune argued that, because Judge Cayce presided over the deposition in a Pierce County courtroom, the videotaped deposition became a public court proceeding to which the newspaper and the public had a right of access under the Washington and US Constitutions. The Washington Supreme Court, however, in a 7-2 decision disagreed. The Court held that the fact the deposition was held in a courtroom and that the judge was present to make rulings did not convert a deposition into a courtroom hearing. Depositions are normally closed to the public and never become part of the court record, unless they are used in the trial or relied on in a motion. The fact that the judge was physically present to rule on objections did not alter the fact that this was a deposition and not court testimony.

The Court found that, since the deposition never became part of the court record, it was not subject to disclosure under Article I, Section 10 of Washington’s Constitution that provides “Justice in all cases shall be administered openly and without delay.” Quoting from a prior case, the Court stated: “Article I, section 10 is not relevant to documents that do not become part of the court’s decision.”
 

This is the heart of the opinion issued on June 21, 2011 by the Court of Appeals in Franklin County Sheriff’s Office v. Parmelee. The Court rejected the claim by an inmate of the Washington State Penitentiary in Walla Walla that his identity as an inmate could not be considered by the trial court in ruling on a motion to enjoin him from making any further PRA requests.

The Court of Appeals pointed out that when the legislature passed an amendment to the PRA (RCW 42.56.565) allowing a public agency to seek an injunction against inmates’ abusive use of the PRA process, the identity of the requestor obviously became a core issue in that process. Therefore, the trial court’s finding that it was not permitted to consider the identity of the requestor – in a situation where an injunction is sought against an inmate – was in error.

Parmelee follows previous appellate rulings in Washington, where more restrictive PRA requirements have been applied to prisoners. See, for example, our January 20, 2011 blog posting: “Prisoners Have Public Records Rights – But Not All of Them.”
 

In a previous published case, Division III of the Court of Appeals had overturned the initial trial court decision that found that Mesa had substantially complied with many of the Zink’s public disclosure requests. Zink v. City of Mesa, 140 Wn. App. 328, 166 P.3d 738 (2007). In that case the Court of Appeals had emphatically stated: “We hold that ‘substantial compliance’ is an incorrect standard by which to judge an agency’s compliance with its statutory duties. We further hold that the record does not support the trial court’s determination that the Zinks unlawfully harassed the City officials or that the City met its obligations under the PDA.”

The facts of this case provide some insight into the continuing controversy. As the Court of Appeals took pains to note in both cases, Ms. Zink was both a former council member and mayor of Mesa, who after leaving office became a self-styled “watch dog” over city actions, particularly after the city improperly denied her request for a building permit. By way of additional background, it should also be noted that the 2010 census reports that the City of Mesa (located in Franklin County) has a population of 489.

Upon remand from the 2007 decision, the trial court assessed penalties and attorney fees for violating the Public Records Act totaling $246,000. Both sides then appealed the amount of the penalties and the basis on which they were adopted. In this appeal, the Court of Appeals makes detailed rulings on many of the issues on appeal, but then remands the case back to the trial court again for a new determination of penalties based on the 16-factor test (7 mitigating factors and 9 aggravating factors) set out in the State Supreme Court’s intervening decision in Yousoufian v. Office of Ron Sims, 168 Wn.2d 444, 229 P.3d 735 (2010).

One of the individual rulings in the unpublished decision highlights an important aspect of Washington’s Public Records Act. That is, a government is under no obligation – under the PRA – to produce documents that do not exist. The Zinks sought penalties under the PRA for the failure of the city to produce minutes of meetings that the city was required under a statutory obligation to prepare. But the Court rejected that claim. “Mesa admittedly violated separate statutes requiring it to prepare draft minutes of the Board meetings for public review. RCW 35A.39.010  RCW 42.32.030. But the PRA does not state that an agency’s violation of independent statutory duties to prepare records is a violation of the PRA.”
 

The Court of Appeals in 1999 determined that both WACO and WSAC were subject to the public records portions of the 1971 initiative. Telford v. Thurston County Board of Commissioners, 95 Wn. App. 149, 974 P.2d 886 (1999). Questions remain, however, regarding the application of that law to the Public Records Act and OPMA. See Attorney General Opinion 2002 No. 2, finding the Telford analysis must be applied on a factual basis to determine the specific application of the components of the Public Disclosure Act to any particular entity, such as WSAC. The Telford court considered the following four factors to determine the application of the campaign finance provisions to an entity: 1) the entity’s governmental function; 2) the entity’s government funding; 3) governmental control over the entity; and, 4) the entity’s origin.

On June 1, 2011, the Court of Appeals in West v. WSAC, Court of Appeals No. 39366-2, applied those same factors to determine that WACO was also subject to OPMA. The court recognized that the OPMA portion of the Public Disclosure Act does not define “state agency.” This differs from the campaign finance and public records provisions of the public disclosure laws. “Nevertheless, because we construe the OPMA liberally to reach its intended purpose, we hold that for purposes of the OPMA, a “state agency” may be an association or organization created by or pursuant to statute which serves a statewide public function.” The court relied on the legislature’s formal recognition of WACO in 1959 – at WACO’s own request – in support of its determination that WACO was a public agency subject to the OPMA. Courts in other jurisdictions, however, have reached different results. See our March 31, 2011 blog posting.
 

One of the listed exemptions under the PRA is for “information required of any taxpayer in connection with the assessment or collection of any tax.” RCW 42.56.230(3). The court agreed with the County and with DOR that the specific exemption applied to the requested records relating to individual property’s personal and real property valuations. Publishing such proprietary business information obtained by the DOR in the course of its audit would disadvantage the audited taxpayer. The Court also relied on the reference in RCW 42.56.230(3) to RCW 84.08.210(2) that broadly states that “tax information is confidential and privileged, and except as authorized by this section, neither [DOR] nor any other person may disclose tax information.” The Court of Appeals found that there were no exceptions, applicable to the case, to the general prohibition on disclosure of tax information.
 

The Puyallup School Board faced a rowdy crowd at its May 9 meeting – a vociferous display of support for a local high school Principal who had submitted his resignation. When the time came to vote on whether to accept or reject the Principal’s resignation, shouting and chants from the crowd reportedly disrupted all order at the meeting. The Board President announced an adjournment of the meeting to another location.

But, the Board appears to have overlooked specific requirements of the Open Public Meetings Act. RCW 42.30.050 allows a public body to adjourn a disruptive meeting and reconvene at a new location. However, that new location must be “selected by majority vote of the members.” Thus, not only must there be a vote to move to a new location, but the new location must be publically approved by a majority of the Board. Public notice of the new location is vital and necessary, because the same statute also provides that “Representatives of the press or other news media, except those participating in the disturbance, shall be allowed to attend any session held pursuant to this section.”

Adherence to the procedural requirements of the OPM are critical, as RCW 42.30.060 mandates that actions taken in violation of the OPM are null and void.