The nomination of Solicitor General Elena Kagan to the Supreme Court prompted document requests to the Department of Justice (DOJ). The D.C. District Court recently upheld a DOJ determination that records from the office of the Solicitor General were exempt from disclosure under the Freedom of Information Act (FOIA). The records either were privileged or were not “agency records” subject to disclosure. Media Research Center v. U.S. Department of Justice and Judicial Watch v. U.S. Department of Justice, 2011 WL 4852224 (Oct. 13, 2011).

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

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

Continue Reading Supreme Court Nominee: US Solicitor General’s Communications Exempt under FOIA

In another of a series of prisoner Public Records Act (PRA) requests in the State of Washington, a Court of Appeals has affirmed the trial court’s denial of a prisoner’s claims that (1) he should be able to review documents to see if there are none, and (2) he should be able to have the medical records of his victim. Simpson v. Okanogan County (unpublished opinion). (See previous 2011 blogs relating to prisoner related public records requests posted on January 20 and January 28.)

In his request from prison, Simpson asked for the records on his case from the prosecutor’s office, including the medical records of his victim. In addition, he asked for the personnel file of the elected Okanogan County prosecuting attorney; and, for the records of any insurance obtained by the County for the prosecutor. In response, the County provided Simpson with his criminal file. But, the County withheld the medical records of his victim; stated that the County had no personnel file for the elected prosecutor; and, that it had no documents relating to insurance for the prosecutor. When Simpson sued to challenge both the withholding of medical records and the denial of documents, the trial court granted summary judgment to the County, and the Court of Appeals affirmed.

Continue Reading Yes, We Have No Documents: WA Court of Appeals Affirms Denial of Prisoner’s PRA Claims

The March 30 edition of the New York Times reports that a research group in Michigan has made a public records request of the University of Michigan, Michigan State University and Wayne State University for any e-mails involving the Wisconsin labor turmoil, including any e-mails with reference to Rachel Maddow – the MSNBC talk show host.

Greg Schulz, the director of academic freedom for the American Association of University Professors is quoted as asserting “We think this will have a chilling effect on academic freedom. We’ve never seen FOIA requests used like this before.”

Continue Reading Clash of Principles: Academic Freedom v. Freedom of Information

The King County Council recently took action to ensure that the County’s use of social media, including Twitter and Facebook, complies with the County’s obligations under various King County and Washington public record laws, including Chapter 2.14 K.C.C. and Chapters 40.14 and 42.56 RCW.

A number of County agencies are beginning to use online social media to engage and communicate with the public.  For example, Metro Transit uses its Twitter page to update commuters on the status of various bus routes – a tool that was especially important during the recent November snow storm. In light of the growing use of Facebook, King County Elections now uses its Facebook page to encourage young voter registration and to educate King County residents about the County’s mail-in ballot system. The King County Council wants to ensure that public posts on these and other County social media sites comply with public record laws.

Continue Reading King County Council Acts to Address Social Media and Public Record Laws

On Wednesday April 23 the State Archivist circulated a reminder that digital photocopiers contain hard drives with images of scanned records. These must be treated as public records, and all applicable federal, state and local rules must be followed, including those rules mandating the protection of confidential information. The archivist suggested that the hard drives on photocopiers should be erased before the copiers are traded in. A link to a CBS news story regarding records on digital copiers owned by public entities that was circulated by the archivist can be found here.

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.

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.

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.

Continue Reading Washington Appellate Court Rules that Destruction of Informational-Only Emails Pursuant to a Records Retention Policy Does not Violate the Public Records Act