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.”

Continue Reading Text Messages on Private Devices Subject to Washington Public Records Act

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.”

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/
 

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.

Continue Reading Washington Supreme Court Orders Attorney Fees And Costs To Requester For Agency’s Violation Of PRA’s “Brief Explanation” Requirement

In Robbins, Geller, Rudman & Dowd, LLP v. State, Division II of the Court of Appeals decided that private parties may assert the Public Records Act exemption in RCW 42.56.270(1) for certain financial, commercial, and proprietary information obtained by public agencies. Private parties may also assert that disclosure would produce a public loss, regardless of the agency’s position on the issue. However, the court declined to address the open question in Washington of the proper standard for an injunction based on an “other statute” exemption under RCW 42.56.070(1).

The law firm of Robbins, Geller, Rudman & Dowd sought to enjoin release of information that the firm submitted to the Washington Attorney General’s Office (“AGO”) as part of its response to a request for qualifications. Although the Court of Appeals held that the law firm could assert the proprietary information exemption under RCW 42.56.270(1), it reversed the trial court’s decision to issue a permanent injunction, finding that the law firm failed to prove that the exemption, or any other exemption, prevented disclosure of the information at issue in response to a public records request.

Continue Reading Court Of Appeals Determines That Public Records Act Exemption For Proprietary Information Obtained By Public Agencies Can Be Asserted By Private Parties

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.

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

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.

Continue Reading The Presumption of Openness

Update (April 22, 2009) — Happy Earth Day

In this editorial, Seattle City Attorney Tom Carr responds to an earlier editorial about his role in the “closed door” meeting controversy.  The two editorials serve to highlight an often overlooked point — the public’s perception of a government’s compliance with open government laws can be more important than the government’s strict compliance with those laws.  One of the primary purposes of open government laws like the Open Public Meetings Act and the Public Records Act is to build public trust.  If the public thinks the government is trying to keep something secret that should be public, it builds distrust.

Continue Reading Seattle Times: “No more closed-door Seattle City Council budget briefings”