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.

Continue Reading 2013 Olympia Legislative Update – Open Government Bills Still Alive

The Washington Court of Appeals, in an unpublished opinion dated June 7, 2011, has once again remanded the Zink v. City of Mesa case back to the trial court.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.”

Continue Reading The Saga of Zink v. City of Mesa Continues – Washington Court of Appeals Remands Again

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).

Continue Reading Washington Property Tax Assessment Audit Data Not Subject to Public Disclosure

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.

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.

Continue Reading iPads Saving Cities Paper Costs – But at What Cost?

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.  

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.

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.

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.