In a recent opinion, the Washington Attorney General concluded that governing bodies of public agencies may conduct their meetings exclusively by telephone conference call, so long as the call is open to the public under Washington’s Open Public Meetings Act, ch. 42.30 RCW (OPMA). AGO 2017 No. 4.

To comply with the OPMA, the Opinion suggests: “one or more specific locations can be designated as the meeting place; notification of the meeting place(s) and time can be provided in the manner outlined in RCW 42.30.075; the agenda can be posted online if required by RCW 42.30.077; and a speaker phone can be provided at the designated meeting place(s) to enable those attending to hear the public discussions and to provide testimony.” While other states (such as California and New York) specify standards for “remote” communication meetings, Washington does not. But according to the Attorney General, the absence of express standards is not controlling.

The AGO concludes by noting “a member of the public could conceivably bring legal action” under the OPMA, but that a successful challenge would be “unlikely.” AGO 2017 No. 4 cited to an earlier opinion (AGO 2014 No. 7), as well as judicial decisions from Maryland and Michigan in support of its position.

Arthur West filed suit under Washington’s Open Public Meetings Act, ch. 42.30 RCW (“OPMA”), against the Pierce County Council and individual Council members based on a series of e-mails between members of the Council and the Pierce County Prosecuting Attorney’s Office. In West v. Pierce County Council, No. 48182-1-II (February 22, 2017), Division II of the Washington Court of Appeals reversed the superior court and held that West had standing to pursue his claims.

RCW 42.30.120 and .130 permit “any person” to bring a lawsuit for sanctions or an injunction based on a violation of the OPMA. Adopting the analysis of Division I of the Court of Appeals in last year’s West v. Seattle Port Commission, 194 Wn. App. 821, 380 P.3d 82 (2016), Division II held that West qualified as “any person” under the plain language of the OPMA. It also determined that this interpretation of the OPMA’s standing requirements did not conflict with the Washington Supreme Court’s decision in Kirk v. Pierce County Fire Protection District No. 21, 95 Wn.2d 769, 630 P.3d 930 (1981).

Although the court held that West had standing to sue, it affirmed dismissal of his OPMA claim on the merits. In an unpublished portion of the opinion, the appellate court agreed with the superior court’s conclusion that no OPMA violation had occurred through the series of e-mail communications, as there was no evidence that the Council members collectively intended to engage in a meeting to transact official agency business.

Immigration judges are career civil-service employees in the Department of Justice’s executive office. The judges preside over matters such as deportation, exclusion, removal and rescission proceedings for non-citizens charged with immigration law violations. The American Immigration Lawyers Association submitted a request under the federal Freedom of Information Act (FOIA) for records about complaints filed against immigration judges. The Department of Justice disclosed thousands of pages of records, but redacted (1) information that disclosed the identity of individual judges, and (2) information that was determined to be non-responsive to the specific request regarding judicial conduct. The U.S. Court of Appeals for the District of Columbia found that the Department of Justice erred with respect to both categories of redactions. American Immigration Lawyers Association v. Executive Office for Immigration Review, 830 F.3d 667 (D.C. Cir. 2016). The Court concluded that the government’s across-the-board approach to redacting immigration judges’ names was improper and remanded the case for rehearing with a more particularized inquiry into the propriety of redacting individual judge’s names. With respect to redactions based on non-responsiveness, the Court found no basis in FOIA for such redactions. The government was without authority to redact information within the records on the basis of non-responsiveness when no statutory exemption shielded the information from disclosure.

A public employee’s right to privacy was analyzed in some detail by the Pennsylvania Supreme Court in a decision entered October 18, 2016. Pa. State Educ. Ass’n v. Commonwealth. See 41 IER Cases 1310 (Pa. 2016). The Court considered the history of that state’s Right to Know Law (RTKL) as well as federal and state constitutional protections. The court’s deep dig into the privacy issues extends back to 1890 and a regularly cited law review article, Samuel D. Warren and Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890). There, Warren and Brandeis stated that all citizens have the “right to immunity of the person,” the “right to be let alone,” and the “right to one’s personality.” Sometimes referred to as the “right of informational privacy,” the Pennsylvania Supreme Court applied such a right to the home addresses of public school employees. Although the Court struggled with the argument that the RTKL changed the analysis, a majority of the Court determined that the constitutional right to privacy must be considered in any balancing of claims for public records disclosure under the RTKL. As to employee’s home addresses, the Court found no basis to overcome the constitutionally protected privacy interest.

Continue Reading Pennsylvania Supreme Court: Public School Employees Have Constitutional Right to Privacy in Their Home Addresses

The Washington State Court of Appeals recently held that the First and Fourth Amendments of the United States Constitution and Article I, Section 7 of the Washington State Constitution, do not afford an individual privacy interest in public records contained in an elected official’s private email account.

Arthur West submitted a public records request to the City of Puyallup for communications received or posted through City Council Member Steve Vermillion’s private website and email account that related to matters of City governance. Vermillion had used the account during his election campaign and occasionally received emails from constituents and the City, which he forwarded to his City account when an official response was warranted. In response to the request, Vermillion and the City declined to provide records located in Vermillion’s private email account. West sued to compel disclosure under the Public Records Act. West v. Vermillion, No. 48601-6-II (Wash Ct. App., Nov. 8, 2016. The Superior Court ruled in favor of West and ordered Vermillion, under penalty of perjury, to produce records within the scope of the request.

Continue Reading Private Account But Public Records: Public Records Located in City Council Member’s Private Email Account Are Not Protected From Disclosure By the State and Federal Constitutions

The California Court of Appeals has upheld a Napa County court decision finding that a child pornographer had no reasonable expectation of privacy in files that were publically-accessible, despite his having taken measures to obfuscate them.

After the trial court denied his motion to suppress evidence, defendant Richard Evensen pleaded guilty to various sex crimes. This evidence had been obtained through software tools known as “RoundUp” that targets peer-to-peer-file-sharing networks to identify Internet Protocol (“IP”) addresses associated with known digital files of child pornography. RoundUp is only available to law enforcement officials. A public website identified one such IP address to be registered with Comcast, which, upon execution of a search warrant, revealed the subscriber of the IP address to be Evensen’s mother. A second search warrant was then executed, leading to further inculpatory evidence. Upon Evensen’s arrest, further evidence of wrongdoing was also found.

Continue Reading No Expectation of Privacy in Digital File Downloaded to Publically-Accessible Folder through File-Sharing Software

Plaintiff Arthur West filed suit under Washington State’s Open Public Meetings Act, ch. 42.30 RCW (“OPMA”), against the Port of Seattle and Port of Tacoma for excluding West and the public from a series of meetings held between the two ports in 2014. In West v. Seattle Port Commission, et al., No. 73014-2-I (July 5, 2016), the Washington Court of Appeals held that West had standing to pursue his claims under the OPMA, but also held that the Federal Shipping Act of 1984, 46 U.S.C. §§ 40101-41309, preempted application of the OPMA to the ports’ meetings. The Court therefore affirmed dismissal of West’s claims.

Standing Under the OPMA
In holding that West had standing to bring suit, the Court first emphasized that the standing requirements in the OPMA are very broad, allowing “[a]ny person” to bring an enforcement action for violation of the Act. See RCW 42.30.120, .130. It also rejected application of federal standing requirements in this context, explaining that federal case law on standing does not automatically apply to Washington courts interpreting Washington law. The Court of Appeals concluded that the ports had failed to show that West lacked standing in this case.

Continue Reading Federal Shipping Act Preemption and Standing Addressed by Washington Court of Appeals Under State’s Open Public Meetings Act

In White v. City of Lakewood, No. 47079-9-II (May 25, 2016), Division II of the Washington Court of Appeals applied a form of “mailbox rule” to the state Public Records Act (PRA) in defining when records have been “produced” sufficient to trigger the PRA’s one-year statute of limitations. Additionally, the Court reiterated that the statute of limitations is not triggered by an invalid claim of exemption.

White filed three public records requests with the City of Lakewood for documents pertaining to a search warrant. The city withheld responsive records pursuant to the categorical exemption for open and active police investigations under RCW 42.56.240 and Newman v. King County, 133 Wn.2d 565, 947 P.2d 712 (1997), although it later produced certain documents. White filed suit challenging the city’s response to all three requests.

Continue Reading Washington Court Of Appeals Determines When Records Have Been “Produced” Under Public Records Act To Trigger Statute Of Limitations

In Doe v. Washington State Patrol, the Washington Supreme Court held that the state’s community notification statute concerning registered sex offenders is not an “other statute” exemption under the Washington Public Records Act (PRA).

The requester in Doe sought records pertaining to level I registered sex offenders (those classified as least likely to reoffend) from the Washington State Patrol and the Washington Association of Sheriffs and Police Chiefs (WASPC). The agencies sent notice of the scheduled disclosure to affected sex offenders, who sued to prevent release. The trial court agreed with the plaintiffs that level I sex offender registration records are exempt from disclosure under the PRA’s “other statute” exemption because the community notification statute, RCW 4.24.550, provided the exclusive mechanism for public disclosure of sex offender records. The “other statute” exemption allows withholding of records where the PRA “or other statute . . . exempts or prohibits disclosure of specific information or records.” RCW 42.56.070(1). The trial court issued an injunction preventing release of the records.

Continue Reading Washington Supreme Court Reviews “Other Statute” Exemption in Ruling on Release of Sex Offender Records Under the Public Records Act

A Washington Court of Appeals recently addressed this question in a case involving a request from the Freedom Foundation to a state agency for lists of names of home healthcare workers and their contact information. The union representing the workers opposed the disclosure. SEIU Healthcare v. DSHS and Freedom Foundation (No. 446797-6-II, April 12, 2016). The State’s Public Records Act (PRA) “shall not be construed as giving authority to any agency . . . to give, sell or provide access to lists of individuals requested for commercial purposes, and agencies . . . shall not do so unless specifically authorized or directed by law.” RCW 42.56.070(9). The union argued this provision prohibited disclosure, and was not just an exemption from disclosure. The Court rejected the argument, finding “the distinction between an exemption and a prohibition largely is immaterial. [Another section of the PRA] does not distinguish between the two, referring to any other statute that ‘exempts or prohibits’ disclosure. . . . We conclude that RCW 42.56.070(9) must be construed in favor of disclosure regardless of whether [RCW 42.56.070(9)] states an exemption or prohibition.”

Continue Reading What is an Agency’s Obligation When a Records Request May Suggest Requester’s “Commercial Purpose”?