2013 Olympia Legislative Update - Open Government Bills Still Alive

Last Friday, February 22, was the first major deadline for legislation to stay under consideration in the Washington State Legislature this session. Bills had to pass out of policy committees by 5 p.m. (except for bills in the House fiscal committees and Senate Ways & Means and Transportation committees where the deadline is March 1).

The following bills are still alive following last Friday’s deadline. Some have been modified, while some remain in their original form.  The next important date for legislation is March 13, 2013, the last day for bills to be considered in their house of origin (full legislative calendar here).

SHB 1198: Training of Public Officials and Public Record Officers
This bill would require the Attorney General to develop and implement training programs for the Public Records Act and Open Public Meetings Act and requires members of governing bodies and elected officials (within 90 days of taking oath) and public records officers (at regular intervals) to complete the training courses.

SHB 1037: Cost Recovery Mechanism for Public Records Requests
This bill would authorize an agency to charge a fee to recover the cost of furnishing a public record, including an electronic record, where the request is for a commercial purpose and not otherwise exempted. However, an agency would be prohibited from assessing the fee if the requestor is a member of news media, a nonprofit organization, an educational institution, or certain other persons and entities entitled to obtain the requested information or exempted by the bill.

SHB 1128: Injunctions and Time Limitations on Public Records Requests
This bill would authorize an agency to seek an injunction against public records requests if certain conditions are met.  These conditions include harassing or retaliatory requests, requests that create an undue burden, safety threats arising from requests, or requests that would assist criminal activity. An agency would also be able to limit the number of hours it devotes to responding to public records requests, if the agency makes certain documents publicly available and meets other conditions.

HB 1203: Exempting Personal Information Relating to Children
This bill would add a new exemption to the Public Records Act for personal information contained in any file maintained by the Department of Early Learning for a child enrolled in a licensed child care.

SHB 1418/HB 1763: Hours of Availability for Smaller Local Agencies
No action was taken on HB 1763. However, SHB 1418 would allow public agencies that do not maintain office hours for a minimum of 30 hours per week to post directions about how to make public records requests. This bill would also establish the date of receipt of a public records request as the date of such smaller agency’s next regularly scheduled meeting and requires the agency to respond to a request at the next regularly scheduled meeting.

SB 5171/ HB 1299/ HB 1298: Sunshine Committee Recommendations
No action was taken on HB 1299. However, SB 5171 and HB 1298 would add language to the Public Records Act clarifying the exemption for sexual assault victim information and exempting information contained in a local or regionally maintained gang database. SB 5171 also repeals the exemption for data on closed medical malpractice claims that may reveal the identity of a claimant, health care provider, health care facility, insuring entity, or self-insurer.

SB 5169: More Sunshine Committee Recommendations

This bill would implement certain recommendations of the Sunshine Committee including clarifications on the personal information exemption and public access to applications for some executive positions.

The following bills failed to make the cutoff and are considered “dead.” However, a bill may be resurrected if it finds its way onto another bill with a broad enough title (although unlikely).

HB 1197: Public Comment on Proposed Action
This bill would have required the governing body of a public agency to allow for public comment on any proposed action.

HB 1714: Recordings of Executive Sessions
This bill would have authorized governing bodies to record closed executive session meetings and exempted the recordings from disclosure under the Public Records Act. A court would be authorized, upon finding that a public agency intentionally violated the Open Public Meetings Act, to order recording of closed executive sessions for two years.

HB 1019: Identification of Public Records Requestors
This bill would have amended the Public Records Act to make records available for inspection and copying only to an identified person.

SB 5436/HB 1449: Specific Prosecution and Defense Documents
These bills would have provided an exemption to the Public Records Act for victim impact statements and other documents and materials provided by defendants or their attorneys during communications regarding plea agreements and sentencing recommendations.

SB 5170/HB 1297: More Sunshine Committee Recommendations
These bills would have clarified what information resulting from background checks of a guardian ad litem may and may not be disclosed to the parties in a parent-child termination action.

The Saga of Zink v. City of Mesa Continues - Washington Court of Appeals Remands Again

The Washington Court of Appeals, in an unpublished opinion dated June 7, 2011, has once again remanded the Zink v. City of Mesa case back to the trial court. This time the remand is for the purpose of entering new findings on the amount and rationale for penalties imposed on the City of Mesa for violating Washington’s Public Records Act (PRA).

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

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

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

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

Washington Property Tax Assessment Audit Data Not Subject to Public Disclosure

The Washington State Department of Revenue (DOR) uses a “ratio audit” to evaluate the property value of real and personal property in each of Washington’s 39 counties. The valuation of property in each of the counties is then compared against a total valuation of property in the state. The ratio audits are used by DOR to equalize yearly property taxes, and also to assist in calculating each county’s state school levy.

A former King County assessor and his daughter separately requested the disclosure of DOR’s tax ratio audits from King County. The tax ratio audit data would disclose tax information about the private properties subject to audit. King County and DOR rejected the requests under the state’s Public Records Act, chapter 42.56 RCW (PRA) Two separate actions to compel disclosure followed. The trial court dismissed each of the actions. The Court of Appeals reached the merits of the cases, notwithstanding that both of the appeals from the trial court actions were procedurally defective. The Court of Appeals affirmed the dismissal of the PRA suits.
Harley H. Hoppe & Associates, App/cross-res. v. King County, Res/cross-app (May 23, 2011).

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

Washington Supreme Court Finds Metadata is a Public Record

In a public records case with significant implications for government management and storage of electronic data, the Washington Supreme Court ruled on October 7, 2010 that metadata, the “hidden information about electronic documents created by software programs,” can be a public record and subject to disclosure under that State’s Public Records Act, Chapter 42.56 RCW. For Washington local governments and public agencies, the Court’s decision in O'Neill v. City Of Shoreline, Case No. 82397-9 (Oct. 7, 2010), puts public records officers and other employees on notice that e-mails and other electronic documents may need to be maintained in their original electronic forms to preserve metadata; paper copies will no longer be sufficient for preservation and may not be responsive to some requests. In a footnote, the Court pointed out that regulations on document retention recently promulgated by the State Archivist now require preservation of e-mail metadata. WAC 434-662-150.

Beyond the issue of metadata as public record, the Court also tangled with the issue of electronic government records on a public employee’s personal computer. The document that gave rise to this case was a single e-mail forwarded to the Deputy Mayor of the City of Shoreline as a blind carbon copy. After the e-mail’s contents were discussed at a City Council meeting, a citizen requested a copy of the e-mail. The City provided a paper copy of the e-mail. Later, the citizen requested metadata for the complete e-mail thread but the Deputy Mayor said she had already deleted the e-mail. But the Court ruled that since the Deputy Mayor had used her personal computer for City business, it is appropriate for the City to search her hard drive in attempt to locate the deleted metadata. If the City refuses to inspect the hard drive, then the Supreme Court indicated the trial court should find a Public Records Act violation. No direction was given as to what would happen if the Deputy Mayor (no longer in office) does not consent to the search.

Although this was a 5-4 decision, the dissent does not question that metadata associated with an electronic document may be a public record. This is not surprising given the liberal construction accorded the broad definition of “public records” and “writings” in RCW 42.56.010. See RCW 42.56.030 (“This chapter shall be liberally construed and its exemptions narrowly construed….”) Instead, the dissent questions a more basic point as to whether materials on a public employee’s private computer, metadata or otherwise, are public at all since they are not “retained by any state or local agency.” The dissent also questions how the majority can condition the City’s compliance with the Public Records Act on “an impermissible search or inspection” because obtaining records from an employee’s personal computer would be “highly offensive to a reasonable person” which would bar the requester from obtaining the record under RCW 42.56.050.

Although the Court’s two factions may disagree on the limits to which an agency must go to obtain public records from a personal computer and whether public work on private computers is public, the clear direction from the entire Court is that metadata falls within the category of materials that can be public records. Local governments will need to evaluate how they manage and store electronic data to ensure they are properly preserving and producing metadata as part of their public records.

The decision in O’Neill on public metadata access is the first such case in Washington and the holding is similar to that of the Arizona Supreme Court in 2009.

Some helpful links on metadata and local government records management:

A good primer on metadata and the law.

Washington State Archives Records Management for Local Governments (including newly adopted retention schedules).

The Sedona Guidelines: Best Practices & Commentary for Managing Information and Records in the Electronic Age (no cost registration required).

Ohio Supreme Court Allows Disclosure of "Uncharged-Suspect" Records

On July 20, 2010, the Ohio Supreme Court expanded access to public records formerly protected from disclosure under the “uncharged-suspect” exemption to Ohio’s Public Records Act. The court held that the exemption applies only to portions of records that, if released, could reveal a suspect’s identity. The records in question were not “inextricably intertwined” with the suspect’s identity, so the court ordered disclosure after identifying information was redacted.

The decision was not, however, unanimous. The dissent stated concern that the ruling will weaken the uncharged suspect exemption, impose an onerous burden on trial courts by requiring additional review of portions of records, and create an unworkable redaction standard that may not actually protect suspects’ identities.

How does Washington compare? Like Ohio’s Act, Washington’s Public Records Act exempts certain types of investigative, law enforcement and crime victim information from public inspection. Similarly, the Washington Supreme Court does not support a blanket investigative records exemption, finding that in some scenarios, the trial court should determine on a case-by-case basis whether nondisclosure of all or parts of a requested record is essential to effective law enforcement or for the protection of privacy rights.

iPads Saving Cities Paper Costs - But at What Cost?

A recent article in USA Today is headlined “iPads Saving Cities Paper Costs.” The story focused on the cost savings that may result from the use of iPads for internal as well as external communications of cities. The difficulty, as noted by a spokesperson for the Virginia Coalition for Open Government, is the communications on iPads (or iPhones and similar devices) do not necessarily create a record. The Coalition spokesperson was quoted by USA Today as identifying a critical issue in many states, including Washington: “Records generated are subject to disclosure, but we don’t have a mechanism for getting those records from an iPad.”

The State of Washington, like many states, broadly defines public records. The conduct of government business, whether by letter, email, text or other electronic message, may constitute a public record and governments are responsible for maintaining policies to assure public access to such records. One approach to record management is a requirement that a copy of messages relating to government business be sent to a government server.

The Washington State Office of the Secretary of State, applying that state’s Public Records Act, reminds Washington’s governments that the conduct of government business using iPads or iPhones does give rise to a public record of that communication and is to be kept consistent with the government’s record retention policy.

For additional assistance in this regard, see the Secretary of State website at:
http://www.sos.wa.gov/archives/RecordsManagement/ and recordsmanagement@sos.wa.gov.

FOX Business News Focuses on Public Record Access in Bell, CA Salary Scandal

On The Willis Report (FOX NEWS, July 29, 2010), a regular FOX Business News broadcast, host Gerri Willis reviewed some of the issues surrounding efforts to gather information about the salary of public officials in Bell, California. Gerri interviewed Steve DiJulio, a Foster Pepper lawyer and regular contributor to this blog. Steve discussed that many cities, before the Bell scandal, publicly posted salary information on their websites. He also discussed the process for gaining access to salary information of public officers and employees. Watch the interview here.  

Public Records Requests May be Answered by Posting to the Internet

In order to preserve taxpayer resources the legislature has revised the Public Records Act, Chapter 42.56 RCW, to allow agencies to refer records requesters to documents available on its website.  Under current law, an agency that receives a public records request must respond within five days by either (1) providing the requested records, (2) denying the request, or (3) providing the requester with a reasonable time estimate for fulfilling his or her request. Effective June 10, SB 6367 provides agencies with a fourth option.  If the record is available on the agency website, then the agency may provide a link to the specific records requested.  However, if the requester notifies the agency the agency that he or she cannot access the records via the internet, then the agency must provide copies to the requester or allow the requester to view copies using an agency computer.   A copy of the session law can be found here.

Medical Privacy should always be considered in responding to Public Records Act requests

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


Sunshine Committee Issues its Annual Report to the Legislature

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.

Sunshine Committee on Governor's List For Possible Elimination

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.

Washington State Archives Publishes Records Management Advice Regarding Blogs, Wikis, Facebook and Twitter

The Washington State Archives recently published a records management advice sheet entitled “Electronic Records Management: Blogs, Wikis, Facebook, Twitter & Managing Public Records” that provides guidance to state and local government agencies regarding the retention of public records of posts to social networking websites such as blogs, wikis, Facebook, and Twitter. 

The advice sheet provides five (5) factors for agencies to consider when managing the retention of public records created or received through social networking sites. These factors include determining whether the posts are public records (yes, if the posts are made or received in connection with the transaction of the agency’s public business). Determining whether the posts are simply copies of records that the agency is already retaining or whether the posts are primary records. Determining how long the posts will be retained and how the agency will retain the posts (especially if the posts are maintained by a third-party vendor). Finally, determining which business activities are appropriate for social networking, particularly if the agency is unable to manage the creation, receipt, and retention of the posts as public records.

Supreme Court of Arizona Holds Metadata is a Public Record

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. 

Disclosure + Internet = Threat to Democracy?

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. 

"Death by a Thousand FOIAs"

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.)

Should Elected Officials Use Blogs and Web 2.0 Sites?

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"



Open Government in the News: Washington State

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

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. 


Open Government Ombudsman's Opinions Recorded on AG's New Blog "Unredacted"

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

The Presumption of Openness

Update May 31, 2009

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

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

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

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

Here is what the memo actual states:

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

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

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


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

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

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

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

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

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

Courts and public records laws


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.


Reaching a balance on attorney-fee awards

In North Carolina, as in many states, attorney-fee awards to requesters who are forced to file a lawsuit to obtain records are discretionary.  New legislation, however, would make the award of attorney fees mandatory, except when the agency relies on legal advice to justify its decision to withhold the records.  The same legislation would require mandatory mediation prior to a lawsuit.

Washington's Public Records Act already mandates a penalty that includes attorney fees and a daily award.  RCW 42.56.550(4).  But there is no exception for reliance on legal advice -- or reliance on a prior court order.  As a result, governments are required to pay penalties from their public funds even when those governments act in good faith reliance on legal advice or on a court order.

For example, in West v. Thurston County, 144 Wn. App. 573, 183 P.3d 346 (2008), the County relied on a prior court order in another case providing that the same attorney-fee bills were work product when it told a requester those bills were exempt as work product pursuant to RCW 42.56.290.  After the lawsuit was filed, however, the Legislature amended the Public Records Act to clarify that attorney-fee bills were in fact subject to disclosure.  RCW 42.56.904.  As a result, the Court of Appeals ruled that the County had erred in withholding those records, and remanded for penalties – penalties that will be paid by the taxpayers of Thurston County.

Open Government Around the County for the Week of March 30


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.


Open Government Around the Country for the Week of March 22

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.


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

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


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

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


How the Legislature has exempted itself from the Public Records Act.

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.”


Kansas Law Mandates Review of All Exemptions to State's Public Records Law

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.    

Release a Public Record, Get Sued for Violating Federal Law

As AmLaw Daily reports, disgraced former Detroit Mayor Kwame Kilpatrick has filed suit against the telecom company that stored his infamous text messages that were deemed to be public records and directly lead to the former mayor spending 99 days in jail for perjury. 

This lawsuit follows a Ninth Circuit decision upholding a civil rights lawsuit by a police officer who sued the city he worked for after his text messages sent from his city-issued phone were released, even though the text messages were "public records."  Quon v. Arch Wireless, 529 F.3d 892 (9th Cir. 2008). 

The key fact in the Quon case was that the City had created a reasonable expectation of privacy by failing to monitor text messages or limit personal use.  If a public agency allows the personal use of text messages, or even emails, the agency must make sure employees know those messages will be monitored to ensure the employees do not have a reasonable expectation of privacy in those messages.