From $37 to $339,000: Why the Price of Public Records Requests Varies So Much

The laws about public records differ from one government to the next and are further complicated by some technologies, like police body cameras. 

By Liz Farmer from Governing.com

In 2015, the editor of a newspaper in Florida filed a public records request with the Broward County Sheriff's Office asking for the email of every employee during a five-month period to be searched for specific gay slurs.

In response, the South Florida Gay News received a $339,000 bill.

The office said fulfilling the request would take four years and require hiring a dedicated staffer. The exorbitant charge set off a year-long legal battle that attracted the Associated Press and its lofty resources. To show how arbitrary the number was, the AP and South Florida Gay News filed a similar request to the sheriff's office in other Florida counties. They were quoted fees ranging from as little as $37 to more than $44,000.

Local and state laws regarding what constitutes the public’s domain are about as uniform as a patchwork quilt. And technology -- or a lack thereof -- further contributes to the increasing cost variance between jurisdictions.

New IT software, for the governments that can afford it, has certainly sped up the time it takes to fulfill requests and thus lowered the price of information. But in some cases, technology can complicate matters. This issue is particularly heightened when privacy concerns require time-consuming redaction work.

Take the emerging issue of police body cameras. People caught on video in homes or hospitals have a reasonable expectation of privacy, so faces need to be blurred or redacted -- a process that some say requires a painstaking number of manhours. The New York City Police Department made news last year for charging a local TV station $36,000 for access to 190 hours of body camera footage.

Partially in an attempt to avoid the labor, some governments have limited the public’s access to police videos. So far, jurisdictions in 21 states have passed laws regarding body camera footage -- most of them restricting it. The state of South Carolina has exempted the footage from public records requests altogether.

After receiving an imposing public records request for footage, the Seattle Police Department decided to hold a hackathon. The winner created software that automated some of the redaction process and now the police department uploads redacted body camera clips to YouTube for anyone to see.

Meanwhile, watchdog groups and media organizations that push for more transparency argue that redaction technology has evolved in recent years. Companies like MotionDSP are retooling their software to work faster, while companies like PRI Management will redact videos for agencies either for a per-video or annual fee.

Body cameras are a new technology, so inconsistency is understandable. Emails, on the other hand, aren't so new and yet the cost of fulfilling a records request for them still varies greatly.

According to Frederic Smalkin Jr., a Baltimore City Law Department attorney, new software has easily cut down on the e-discovery process in his agency by half. Meanwhile, Andy Wilson, CEO of the data management company Logikcull, said he regularly speaks with governments that are still printing out emails and redacting by hand.

As new types of electronic records pop up -- like text messages and Snapchats -- governments will have to consider whether they apply to the public domain. The landscape will likely continue to be inconsistent from one jurisdiction to the next. But in the meantime, Adam Marshall of the Reporters Committee for Freedom of the Press, thinks governments could be doing better.

“The tools already exist for these types of records requests to be complied with,” he said. “The agencies need to be thinking about ensuring compliance with existing law when they adopt new technology.”

 

No Right of Access to Security Video Footage Revealing Security Capacity for Surveillance System

Republished with permission from the International Municipal Lawyers Association (IMLA) with Washington Law commentary from Lee Marchisio, Foster Pepper

 

Gilleran v. Township of Bloomfield, No. a-15-15 (Sup. Ct. N.J. Nov. 22, 2016)

Denial of access to town's video security tape footage permissible under [New Jersey's] Open Public Records Act ("OPRA") security exemption because footage contained critical information about operating system and vulnerabilities; however, court noted there may be a common law cause of action for releasing portions of footage.

Seeking to determine whether certain people had entered the Township's municipal building, Plaintiff Patricia Gilleran requested five days' worth of footage from one of Bloomfield's stationary security cameras. A clerk for the Township asked that the request be narrowed to a shorter time period, noting that five days of security camera footage was quite voluminous. Accordingly, Gilleran reduced her request to one day of footage and was later informed that her request had been denied under OPRA's exemption for security information.

Gilleran commenced action against the Township by filing a claim with its Law Division to access the requested footage under OPRA and a common law right-of-access claim, noting that the camera was in plain sight and surveying a public area. In her complaint, Gilleran requested that the court order the footage either be released or redacted pursuant to OPRA's security exemptions.

The Township, despite having never viewed the entirety of the recordings, contended that the footage fell within OPRA's security exception because it would allow a viewer to ascertain the actual area being surveyed by the camera. Since the cameras were strategically placed and contained within smoked glass, it was not immediately obvious to the general public as to what the cameras were surveying, despite their location in a publically viewable area. As a result, Bloomfield contended, allowing members of the public to obtain this security camera footage would defeat the original purpose of the security camera. Further, the area potentially surveyed was used not only by public employees, but also by members of the police department, confidential informants and victims of domestic violence whose identities needed to remain anonymous.

Gilleran responded that none of the OPRA security exceptions warranted a blanket prohibition, particularly given the Act's purpose (to grant public access to public records), and urged the court to require Bloomfield to examine the footage in order to determine whether portions of the video contained a security risk. Further, she reiterated, the cameras were publically viewable and had captured nothing that an individual physically present at the same location could also see. She also argued that since the Town had not actually viewed the tapes in their entirety, they had not effectively demonstrated that there was a security risk that warranted the OPRA exemption.

The trial court found Bloomfield in violation of OPRA. The Township appealed and the appellate court upheld the decision of the trial court.

The New Jersey Supreme Court reversed the decision of the appellate court, concluding that OPRA's exception, while not a blanket exception, nonetheless exempts local governments from releasing of video footage that reveal security capacity for security surveillance systems protecting public buildings. It also found the compelled release of security footage to be at odds with the legislative intent of New Jersey's OPRA statute. The court noted, however, that despite OPRA's security exceptions, there still may be a common law right-to-access claim that balances the interests of both parties and allows for citizens to obtain certain sections of surveillance footage. As a result, the case was remanded to be decided under the unresolved common law claim.

Patricia Gilleran v. Township of Bloomfield (A-15-15) (076114)

Washington Law Commentary

The Washington State Public Records Act provides a similar exemption for surveillance systems protecting public buildings: "As Division One of our court has held, 'Intelligence information provided by video surveillance systems ... falls squarely within the core definitions of 'law enforcement,' thereby exempting surveillance video recordings from disclosure under RCW 42.56.240(1).'" Gronquist v. State, 177 Wn. App. 389, 400–01, 313 P.3d 416 (2013) (quoting Fischer v. Wash. State Dep’t of Corr., 160 Wn. App. 722, 727–28, 254 P.3d 824 (2011), review denied, 172 Wn.2d 1001, 257 P.3d 666 (2011)). This portion of the law enforcement exemption "only applies to the [investigative, law enforcement, and penology] agencies enumerated in the statute." Does v. King Cty., 192 Wn. App. 10, 27–28, 366 P.3d 936 (2015). The agency must demonstrate that nondisclosure "is essential to effective law enforcement or for the protection of any person’s right to privacy." RCW 42.56.240(1); Sargent v. Seattle Police Dep’t, 179 Wn.2d 376, 395, 314 P.3d 1093 (2013). Washington courts have not extensively reviewed the separate "security" exemption statute, RCW 42.56.420. However, any agency or third party seeking nondisclosure under the security exemption statute’s terrorism provision must show that public disclosure "would have a substantial likelihood of threatening public safety." RCW 42.56.420(1); Does, 192 Wn. App. at 29.

Text Messages on Private Devices Subject to Washington Public Records Act

On August 27, 2015, the Washington Supreme Court affirmed lower courts in holding “that text messages sent and received by a public employee in the employee's official capacity are public records of the employer, even if the employee uses a private cell phone.” Nissen v. Pierce County

The case arose when a sheriff’s detective sent requests to Pierce County for records related to the County Prosecutor. One request was for cellular telephone records for the Prosecutor’s personal phone. There was no dispute that the Prosecutor personally bought the phone, pays for its monthly service, and sometimes uses it in the course of his job.

The Court’s unanimous decision required the Prosecutor to obtain a transcript of the content of all the text messages at issue, review them, and produce any that are public records to the County. “The County must then review those messages just as it would any other public record-and apply any applicable exemptions, redact information if necessary, and produce the records and any exemption log.”

The Court provided public officials a method to submit an affidavit to separate personal from public messages:

“Where an employee withholds personal records from the employer, he or she must submit an affidavit with facts sufficient to show the information is not a "public record" under the PRA. So long as the affidavits give the requester and the trial court a sufficient factual basis to determine that withheld material is indeed nonresponsive, the agency has performed an adequate search under the PRA. When done in good faith, this procedure allows an agency to fulfill its responsibility to search for and disclose public records without unnecessarily treading on the constitutional rights of its employees.”

The Nissen case reemphasizes the need for public officer and employee vigilance in managing information on personal communication devices. While convenient, the use of private devices for official business creates substantial expense to a public agency in responding to requests for public records.

Washington Court Holds Ballots Secret and Not Subject to Public Disclosure

The Washington Constitution, Article VI, Section 6 states: “The Legislature shall provide for such method of voting as will secure to every elector absolute secrecy in preparing and depositing his ballot.” This provision was central to a Washington Court of Appeals decision on July 13, 2015, rejecting a public records act request for “copies of electronic or digital image files” of ballots. White v. Skagit County and Island County, ___ Wn. App. ___, No. 72028-7 (Jul. 13, 2015).

Following the 2013 Washington general election, Timothy White sent public records requests for all ballots to all counties in the state. The counties denied the requests and White sued. The Washington Public Records Act does not expressly exempt ballots from disclosure. It does, however, include an “other statute” provision that incorporates exemptions to disclosure that are based on laws outside of the Act. The court applied the “other statute” exemption in light of the comprehensive statutory scheme restricting access to ballots. The court concluded that the exemption “is necessary to protect the ‘vital government function’ of secret ballot elections.” Two weeks earlier, a different division of the Court of Appeals reached the same conclusion in White v. Clark County, ___ Wn. App. ___, No. 46081-5-2 (June 30, 2015).

Of further note, the court rejected White’s claim that Skagit County should be penalized for failing to respond to his request for “the original metadata and Properties of the electronic or digital files requested.” The court concluded that it was not unreasonable for the county to ask for an explanation of the electronic files requested. The Court of Appeals agreed with the trial court that “White’s failure to respond to the request for clarification excused the County from trying to explain more specifically why the ‘metadata and Properties’ were exempt.”

Hillary Clinton Defends Use of Personal E-mail

On March 2, 2015, The New York Times reported that Hilary Clinton, during her tenure as Secretary of State, may have violated federal regulations by using her personal e-mail to conduct government business. The report says that Clinton aides took no measures to preserve the personal emails on the department servers, which is required by the Federal Records Act.

Read more at: http://www.king5.com/story/news/politics/2015/03/03/hillary-clinton-emails/24299925/
 

Washington Supreme Court Orders Attorney Fees And Costs To Requester For Agency's Violation Of PRA's "Brief Explanation" Requirement

The Public Records Act (PRA) requires that when an agency withholds or redacts records, its response “shall include a statement of the specific exemption authorizing the withholding of the record (or part) and a brief explanation of how the exemption applies to the record withheld.”  RCW 42.56.210(3).  In a 5-4 decision, the Washington Supreme Court held in City of Lakewood v. Koenig that an agency’s violation of this requirement entitles the requester to attorney fees and costs, regardless of whether the records were properly withheld.

In this case, David Koenig had requested records from the City of Lakewood relating to certain police officer incidents.  In its response, the city redacted, among other things, driver’s license numbers from the records, citing to various statutory provisions without additional explanation.  In a majority opinion written by Justice Steven González, the court found that the city’s response violated the PRA because the city either failed to cite a specific exemption or failed to explain how the particular statute applied to the redacted driver’s license numbers in the specific records produced.  As a result, “the burden was shifted to the requester to sift through the statutes cited by the city and parse out possible exemption claims.”  Opinion at 7-8.  Because the PRA provides that costs and reasonable attorney fees shall be awarded to a requester for vindicating “the right to receive a response,” the court held that Koenig was entitled to his attorney fees and costs, including those on appeal.  Id. at 10-12. 

In explaining its decision, the court observed that the level of detail an agency needs to provide will depend on both the nature of the exemption and the nature of the document or information.  For example, if it is clear on the face of a record what type of information has been redacted and that this type of information is categorically exempt, citing to a specific statutory provision may be sufficient.  But for other exemptions, including the “other” statute exemptions that the city cited, “additional explanation is necessary to determine whether the exemption is properly invoked.”  Id. at 8.

In a dissenting opinion joined by three other justices, Chief Justice Barbara Madsen asserted that the majority’s decision imposed an additional burden on agencies to provide enough explanation to prove its claimed exemptions are correct, which the PRA does not require.  The dissent distinguished the facts in Sanders v. State, 169 Wn.2d 827 (2010), observing that, here, “the city explained what information it actually withheld—driver’s license numbers—and it explained why—the cited statutes.”  Dissenting Opinion at 2.  While the dissent acknowledged that attorney fees may be warranted if an agency fails to identify a record or give its reason for withholding, the dissent would have held that attorney fees are not independently warranted if the agency has identified the record and given its reason for redacting or withholding the record.
 

No PRA Penalties for Prisoners Absent Bad Faith; Prison Video Surveillance Properly Withheld

In Gronquist v. State of Washington, Department of Corrections, Division II of the Court of Appeals held that RCW 42.56.565(1) prohibits an award of PRA penalties to a prison inmate serving a criminal sentence absent a showing of bad faith by the agency who denied the request. 

Prison inmate Gronquist had requested several records from the Department of Corrections, including certain surveillance videos of the prison where he was incarcerated.  DOC withheld the surveillance videos as exempt investigative records essential to effective law enforcement under RCW 42.56.240.  DOC also inadvertently failed to disclose one page in a 96-page production of documents, which it later provided to Gronquist upon discovery of the error.  The trial court awarded penalties of $15 per day ($260 total) to Gronquist, but found no bad faith on DOC’s part.  Gronquist appealed on several grounds.

Although neither party advanced the argument, the court rejected Gronquist’s appeal of the PRA penalties on the ground that RCW 42.56.565(1) barred any penalties to a prison inmate absent a showing of bad faith.  Because the trial court found no bad faith by DOC, Gronquist was not entitled to any PRA penalties, although the penalties were ultimately left intact because DOC had not cross-appealed the award.  The court also confirmed that the statute applied to Gronquist’s lawsuit because “final judgment” (broadly defined to include exhaustion of appellate review) had not been entered when the statute took effect in 2011. 

With respect to the prison surveillance videos, the court observed that such videos fall squarely within the core definitions of “law enforcement” under RCW 42.56.240.  The court further held that DOC met its burden of showing that the nondisclosure was “essential to effective law enforcement” by submitting the affidavit of DOC’s Director of Prisons, who explained that providing inmates access to surveillance videos would allow them to exploit weaknesses in the surveillance system.  The court concluded that the videos were properly withheld as exempt from disclosure under the Public Records Act.

In the remainder of the opinion, which was unpublished, the court rejected Gronquist’s other arguments as insufficiently supported, abandoned on appeal, or moot.  The court also reiterated prior cases stating that the PRA does not require public agencies to research or explain public records, or to create records that do not exist.