In 2010, Michael Mockovak was found guilty of soliciting and attempting to murder his business partner, among other charges. While incarcerated, Mockovak filed suit under the Washington Public Records Act, chapter 42.56 RCW (“PRA”), against King County and the King County Prosecuting Attorney’s Office, seeking all documents referring to the immigration status of an informant, Kultin, who helped secure Mockovak’s conviction. Although records were disclosed, many were heavily redacted to protect attorney work product. The agencies also withheld Kultin’s National Crime Information Center (“NCIC”) Report, arguing they were barred from disclosing it by federal statute. In affirming the trial court’s decision in favor of the agencies, the Washington Court of Appeals addressed a number of discovery and PRA issues. Mockovak v. King County, No. 74459-3-I (Dec. 19, 2016).

The PRA Does Not Override Federal Touhy Regulations.  Mockovak’s convictions arose out of a joint federal-state investigation conducted by the Puget Sound Safe Streets Violent Crimes Task Force. The task force included both federal and state law enforcement officers specially appointed to federal positions. Mockovak argued that certain task force documents became subject to the PRA when task force member Carver (also a Seattle Police Department detective) “used” the documents, citing the Washington Supreme Court decision in Concerned Ratepayers Association v. Public Utility District No. 1 of Clark County, 138 Wn.2d 950, 983 P.2d 635 (1999). While the appellate court agreed the task force documents likely qualified as public records under the PRA, that alone did not require disclosure. Because the documents were created by and belonged to a federal agency, the PRA did not permit a Washington state agency to release them in contravention of the federal agency’s regulations. Federal agencies are statutorily authorized to adopt regulations – known as Touhy regulations – governing agency administration, including use and disclosure of records. See 5 U.S.C. § 301.

Continue Reading Attempted Murder For Hire And Public Records

Kevin Anderson, a noncustodial parent, sought child support records from the Department of Social and Health Services, Division of Child Support (DCS). Dissatisfied with DCS’s response partially denying his request, he sued under the Washington Public Records Act, chapter 42.56 RCW (PRA). On November 15, 2016, a Washington Court of Appeals rejected Anderson’s claims.

Child support records may be subject to public disclosure, but foremost the records are “private and confidential.” RCW 26.23.120(1). Records may only be disclosed “under appropriate circumstances” as authorized in the statute. RCW 26.23.120(2). Here, DCS provided records and information about Anderson’s own child support case, but redacted information about the mother and child. The Court held that DCS’s disclosures to Anderson, with redactions, were appropriate. The law limiting disclosure of child support records was an “other statute” under the PRA and therefore a proper basis for the redactions. The Court also referred to the Legislature’s direction that juvenile justice records “shall be confidential and shall be released only” under specific statutory authority. See RCW 13.50.100(2).

The Court further held that emails between the DCS support enforcement officer and the prosecuting attorney’s office were protected as attorney-client communications, and were properly withheld from disclosure. The case is Anderson v. Department of Social and Health Services.

In Adams v. Washington State Department of Corrections, Division II of the Court of Appeals held that for purposes of penalty calculation for agencies that do not comply with PRA requests under RCW 42.56.565(1), an agency will be punished for “bad faith” if it fails to engage “in any serious independent analysis of the exempt status of documents.” The Court of Appeals affirmed the findings of the trial court that found that the DOC’s justification for withholding a prisoner’s state and federal rap sheets was insufficient, and that the DOC engaged in “bad faith” under the PRA by failing to.

In this case, Adams, a prisoner, submitted a public records request to the DOC for his inmate central file—a collection of documents that contained, among other items, an offender’s criminal history obtained from both state and federal authorities, otherwise known as “rap sheets.” The DOC refused to produce portions of the rap sheets requested, some of which were obtained from ACCESS, a federal database, arguing that the records were exempt from disclosure under RCW 4.56.070(1) and federal laws. The DOC also argued that non-conviction criminal history information was for law enforcement use only, and therefore exempted from disclosure.

Continue Reading Agency’s Failure to Engage in “Any Serious Independent Analysis” of Validity of Exemption Status Supports a Finding of Bad Faith Under the PRA

In 2005, the Washington Legislature amended the Public Records Act to shorten the statute of limitations from five years to one year.  See Laws of 2005, ch. 483, § 5; former RCW 42.17.410.  Actions for judicial review under RCW 42.56.550 now “must be filed within one year of the agency’s claim of exemption or the last production of a record on a partial or installment basis.”  RCW 42.56.550(6).  Since this amendment, however, appellate courts have given the statute inconsistent treatment in cases involving single productions where no exemptions were claimed by the agency.  This issue most recently arose in last week’s decision from Washington’s Court of Appeals (Division I) in Mahmoud v. Snohomish County, No. 70757-4-I (unpublished).  There, the court held that the one-year statute of limitations barred all of the requestor’s claims.

Division I previously addressed this statute in Tobin v. Worden, 156 Wn. App. 507 (2010).  In that case, the court held that the one-year limitations period is triggered only by a claim of exemption or the agency’s “last partial production” – meaning the production of a record that is “part of a larger set of requested records.”  Id. at 514 (quoting RCW 42.56.080).  Because the production in Tobin involved no exemption and the production of a single document, the court held that the one-year statute of limitations did not apply.

Continue Reading Washington Appellate Court Addresses, Again, PRA Statute Of Limitations For Single Production Responses – Is The Air Clearing?

The Washington Court of Appeals issued three notable Public Records Act decisions in the past few days.  In Andrews v. Washington State Patrol, Division III held that an agency that fails to comply with self‑imposed disclosure deadlines does not violate the PRA if the agency acts diligently to produce the requested records.  The specific records request was complex, seeking audio recordings of third‑party telephone conversations protected by attorney‑client privilege.  In order to preserve confidentiality, the State Patrol developed a method to identify responsive records from over six months of recordings without actually listening to the recorded conversations.  In the process, the State Patrol missed self‑imposed disclosure deadline estimates without notifying the requestor that it needed additional time to compile the records.  Facing 1,000 additional public records requests at the time, the Patrol ultimately disclosed the records in less than 90 days.  The Court held that the PRA’s requirement that agencies provide a “reasonable” estimated response date is not a requirement for an “exact” estimate and that the Patrol’s failure to meet its self‑imposed deadlines or to notify the requestor that additional time was needed did not violate the PRA’s “fullest assistance” provision.

Continue Reading Case Law Update: “fullest assistance,” redactions for effective law enforcement, disclosure of non-agency phone logs

In an unpublished opinion, Center for Justice v. Arlington School District, No. 627263-1-I (Sep. 4, 2012), a Washington Court of Appeals affirmed a trial court’s conclusion that a school district’s “special meetings” were not “regular meetings” because they did not occur in accordance with a schedule declared by statute or rule. The school district regularly held bi-monthly “business meetings,” which were properly noticed as “regular meetings” under the OPMA. It often held what it called “study sessions” just prior to the regularly scheduled business meetings, following the OPMA notice requirements for “special meetings.” The Center for Justice (CFJ) argued that, because of their frequency, the study sessions should have been noticed as regular meetings. Noting that the OPMA did not define “regular meetings” for agencies other than those of the state, the court interpreted the statute as anticipating two types of meetings: those with dates fixed by rule or law (regular meetings), and all others (special and emergency meetings). Because the dates of the study sessions were not fixed by rule or law, they were not regular meetings and the District’s use of the “special meeting” notice provisions was proper.

The District had conceded violations of the OPMA relating to 21 executive sessions it had commenced without first opening a meeting. The trial court granted judgment to CFJ and awarded its attorney fees, reduced by a “degree of success” it calculated by dividing 21 sessions by 144 total alleged violations, or a 14.6% success rate. The appellate court concluded that because CFJ had alleged multiple violations for each session, the trial court had committed an arithmetic error—essentially dividing the number of rotten apples by the total number of allegedly rotten apple seeds—to produce a meaningless “percentage.” The court remanded for a re-calculation of the fee award.

The appellate court also awarded attorney fees to CFJ on appeal for establishing that the trial court had erred in its fee calculation. Although the District prevailed on the remainder of CFJ’s claims, because CFJ’s appeal was not frivolous, the District received no fee award.
 

In an unpublished opinion, the Washington Court of Appeals affirmed the dismissal of a public records suit due to the requester’s failure to properly serve the Pierce County Auditor. The requester, Larry Day, requested records from the Pierce County Prosecuting Attorney’s office relating to its prosecution of Day. The Prosecuting Attorney’s Office withheld a number of documents as attorney work product. Day subsequently filed a complaint under the Public Records Act naming the Prosecuting Attorney’s Office as the defendant. Day also served a copy of the complaint on the Prosecuting Attorney’s Office. Day did not serve any other public official or department. The Prosecuting Attorney’s Office appeared and filed a Motion for Summary Judgment arguing that Day’s service was improper. The trial court agreed and dismissed Day’s suit.

Counties can be sued under Washington law, but to properly serve a county, the plaintiff must serve the County Auditor or the Deputy Auditor. RCW 36.01.010; RCW 4.28.080(1). In contrast, a county department can only be sued if the law creating the department permits such a suit. Roth v. Drainage Improvement Dist. No. 5, 64 Wn. 2d 586, 588 (1964). Pierce County never designated the Prosecuting Attorney’s Office as an entity capable of being sued. Thus, to effectively serve his suit, Day was required to serve the Pierce County Auditor or the Auditor’s Deputy. Day did not and that mistake proved fatal to his suit.

Moreover, because Day failed to re-file and properly serve the Pierce County Auditor after his original suit was dismissed, the Court of Appeals held that the one year statute of limitations under the Public Records Act had run.
 

A recent case decided by Division II of the Washington State Court of Appeals confirms that agencies must receive fair notice of a request for public records. In other words, a request must have sufficient clarity to be recognizable as a request for information under the Public Records Act. The Court also determined that a union representative had adequate standing to file a public records lawsuit on behalf of a union member.

In Germeau v. Mason County, Case No. 41293-4-II, 2012 WL 621468 (Feb. 28, 2012), Richard Germeau, a representative of the Sherriff’s Office Employees Guild (“Guild”), commenced representation of Guild member Detective Sergeant Martin Borcherding, who had been involved in an off-duty domestic dispute.

Germeau was an experienced public records requestor, having made several past requests using the official Mason County Public Records Request Form. Despite his familiarity with the form, Germeau instead drafted a letter to the Sherriff’s Office seeking information and documents pertaining to any pending investigation of Borcherding. The letter did not specify that it was a public records request, and instead emphasized that Germeau, on behalf of the Guild, would be representing Borcherding during the internal investigative and discipline processes.

Continue Reading Clarity is Key: Court Confirms Fair Notice Requirement of PRA Requests

In Double H. L.P. v. Washington Department of Ecology (No. 29918-0-III), Division III of the Washington Court of Appeals clarifies that a court is not required to impose separate penalties on each improper public records response. Instead, a single penalty may be applied to a series of responses when they relate to the same subject matter.

The Department of Ecology received an initial records request from Double H. L.P. regarding Ecology’s investigation of illegal hazardous waster disposal on Double H’s farm. Double H. later followed up with a “refresher” request for records created after the date of the initial request. Ecology responded by producing records on nine different occasions and posting an exemption log that identified certain records withheld from production under various exemption claims.

Continue Reading Are Penalties Applied Separately to Each Public Records Response? It Depends.

Division II of the Washington Court of Appeals has upheld a trial court’s decision to group documents into two categories, thereby lowering the penalties against the Washington Dept. of Labor and Industries (L&I) from over to $500,000 to approximately $30,000. Bricker v. Washington State Department of Labor & Industries, __ Wn.App. __, 2011 WL 4357760 (September 20, 2011).

Ken Bricker is a former contractor who owned a home at which he did his own electrical work. An L&I inspector issued a citation related to the work. Bricker appealed, and sent a letter to the inspector, in which the Public Records Act (PRA) was not mentioned, asking for “a copy of all permits issued and copies of inspections and correction requests by all inspectors at that residence.” The L&I inspector filed the letter, assuming that the records would be made available during the contested hearing over the citation.

Continue Reading Grouping Documents and Lowering Penalties upon Reconsideration is Upheld by the Washington Court of Appeals