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

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in last week’s decision from Washington’s Court of Appeals (Division I) in Mahmoud v. Snohomish County, No. 70757-4-I (unpublished).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. 

Division II disagreed with Tobin.  Division II first addressed the case in Johnson v. State Department of Corrections, 164 Wn. App. 769 (2011).  After noting that Tobin did not address the potential applicability of the two-year “catch-all” limitations period in RCW 4.16.130, the Johnson court observed that “it would be an absurd result to contemplate that, in light of two arguably applicable statutes of limitations, the legislature intended no time limitation for PRA actions involving single-document production.”  Id at 777.  The Johnson court did not ultimately determine which limitations period applied because the action had been filed more than two years after the agency response and was therefore barred by the catch-all limitations period in any event. 

In Bartz v. State Department of Corrections Public Disclosure Unit, 173 Wn. App. 522 (2013), Division II was required to resolve this issue.  Bartz involved a single production of records that occurred more than one year, but less than two years, prior to the lawsuit.  Following its reasoning in Johnson, the Bartz court explained that it “would also be absurd to conclude that the legislature intended to create a more lenient statute of limitations for one category of PRA requests.”  Id. at 537.  Expressly rejecting Tobin, the Bartz court concluded that the legislature intended the PRA’s one-year statute of limitations to apply to requests completed by a single production of records.  The court declined to follow a literal reading of the statute because doing so would lead to absurd results.  Despite the apparent conflict between the Courts of Appeals, the Supreme Court denied review in BartzSee 177 Wn.2d 1024 (2013).

With Division I’s recent decision in Mahmoud, the courts appear to be trending toward the one-year limitations period for single productions.  One of the plaintiff’s public records requests in  Mahmoud involved a single production that was later followed by a letter confirming that no other responsive documents existed.  The plaintiff argued that this production was incomplete and therefore could not trigger the limitations period.  The court disagreed, quoting language from Bartz and Johnson that it would be an absurd result to conclude that the legislature intended no statute of limitations for PRA actions involving a single production of documents.  Opinion at 14-15; see also id. at 18.  Regardless of whether the court considered the single production itself or the confirming letter to be the trigger, the one-year period expired at least seven months before the plaintiff’s suit was filed.  Id. at 15. 

Division I’s decision in Mahmoud suggests that the court has reconsidered its position on the statute of limitations in RCW 42.56.550.  At minimum, it raises doubt as to the continuing precedential value of Tobin.  The court cited Tobin as contrary authority in a footnote, but did not elaborate further.  Of passing interest is that Chief Judge Michael Spearman, who concurred in Mahmoud, was also a concurring judge in Tobin.  At present, no motion to publish the opinion or petition for review to the Supreme Court has been filed.  Those deadlines are November 17 and 26, respectively. 

 

Case Law Update: "fullest assistance," redactions for effective law enforcement, disclosure of non-agency phone logs

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. 

In Haines‑Marchel v. Department of Corrections, the requestor sought internal investigation documents from the Clallam Bay Corrections Center.  Relying on those documents, prison officials placed an inmate on “dry cell watch” in order to monitor the inmate for suspected contraband.  The documents detailed allegations by three separate named inmate informants.  Citing an exemption for sensitive information contained in law enforcement records, RCW 42.56.240(1), the Department released the documents but redacted the informants’ names and identifying numbers, the details of their allegations, and all information about their reliability as informants.  Division II of the Court of Appeals agreed with these redactions, holding that releasing this investigative record information would undermine effective law enforcement at correction centers.  Informants identified in the documents could be subject to retaliation and future informants would be “chilled” against providing information to Department officials.  Similarly, the Department properly redacted pre‑printed material in the documents because those materials detailed the Department’s methods of investigation.  Releasing this intelligence information would aid inmates in crafting and disguising false or deceptive accusations.  However, the Court also held that other information was improperly redacted.  The accused inmate’s name and assigned number, the specific rule he allegedly violated, and the investigating officer’s signature in the documents were not similarly exempt. 

Last week in Nissen v. Pierce County, Division II held that text messages sent and received from a government employee’s private cell phone are public records if they relate to government business.  Similarly, portions of call logs that track a government employee’s private, non‑agency cell phone could be public records for those calls that relate to government business.  The more difficult question was whether the agency “prepared, owned, used or retained” the phone logs.  Unlike the text messages, which were prepared and used by the employee as a government official, the cell phone logs were created by a private cellular provider and delivered to the employee in his private capacity.  Accordingly, the call logs might not be “used” or “retained” by the agency even though the phone itself was used for government purposes.  The Court remanded for the trial court to determine this question after developing the record.  Arguably, the Court avoided a fundamental issue that could have been resolved as a matter of law: “we do not reach the question of whether [the employee’s] personal cellular phone call logs became ‘public records’ when he delivered them to the prosecutor’s office for the agency to redact.”  

 

Court Agrees -- A Special Meeting is Not a Regular Meeting

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.
 

The Little Things Matter: Public Records Suit Dismissed for Failure to Properly Serve County Auditor

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.
 

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

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.

The Sheriff’s Office did not respond in writing and did not produce documents in response to Germeau’s letter. Several months later, after receiving records from other sources, Germeau believed his original request to the Sherriff’s Office had been ignored, and he had not received all pertinent records. Germeau then filed a complaint against the Sherriff’s Office and the County alleging violations of the PRA.

First, the Court of Appeals reversed the district court’s finding that Germeau lacked standing to bring the PRA action against the County. The Court of Appeals held that Germeau, as a representative the Guild, had a sufficient “personal stake” in the outcome of the suit to have standing on behalf of the Guild members he represents.

However, Germeau’s victory was short lived, as the Court ultimately upheld the district court’s dismissal of the lawsuit. The Court found that Germeau had failed to provide fair notice of a PRA request, and that nothing in the August letter put the County on notice that Germeau was requesting records under the PRA. Instead, the letter appeared to request documents in connection with the Sherriff’s Office’s internal investigation of Borcherding under the Guild’s collective bargaining agreement, not the PRA. Consequently, the Court of Appeals upheld summary judgment for the County and Sherriff’s Office, finding that the agencies had not violated the PRA.

This case provides several helpful takeaways for both agencies and requestors:

  • Just as an attorney may have standing to bring a PRA claim on behalf of a client, similarly a union representative or the union itself has a sufficient standing to bring a PRA claim on behalf of a union member.
  • While the fair notice rule doesn’t require a requestor to specifically cite to the PRA, the language of the request must be sufficiently clear so that the agency understands that a request for public records has been made.
  • For requestors: Clearly state that your correspondence is a request for public records. Whenever possible, use an agency’s official public records request form.
  • For agencies: Seek clarification from requestors if there is uncertainty about whether correspondence might be a request for public records.

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

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.

Ecology conceded that withholding some of the documents violated Washington’s Public Records Act. However, the trial court concluded that only one group of records existed for penalty calculation purposes and that a separate penalty would not be applied to each separate production date. The Court of Appeals upheld the trial court’s reasoning and rejected Double H.’s argument that multiple production installments require multiple penalty groups (which, not surprisingly, would have substantially increased the overall penalty awarded).

The Court of Appeals applied an abuse of discretion standard and reviewed whether the trial court’s decision was manifestly unreasonable or based on untenable grounds. It expressly recognized that nothing in the PRA, and nothing in the Washington State court cases interpreting the PRA, requires trial courts to create penalty groups in a specific fashion. 

In summarizing its holding, the Court of Appeals stated that selecting a same-subject group for penalty purposes (rather than a group based upon production dates) encourages agencies not to withhold records until fully assembled and promotes early record production. While this decision does not necessarily prevent a trial court from applying a separate penalty to each record production, it does provide trial courts the flexibility to consider a public agency’s attempt to provide responses in a timely manner when records and information first become available.

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

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.

Bricker then made several attempts to obtain the records, including telephone calls to L&I personnel who did not recall the calls. It turned out that there were somewhere between 3 and 16 responsive records. Bricker both overturned the citation and won the PRA trial where he was originally awarded penalties totaling over $500,000.00. But the trial court later reconsidered, and broke the documents into two groups, the original 16 records and 3 other records that were duplicates, except for signatures. The trial court awarded $90/day for the first group and $15/day for the second group, stating that the PRA was about accountability, but absent bad faith, the PRA is not meant as compensation for damages.

Bricker appealed the trial court’s reconsideration, which changed the award from a per-document per-day award to a per-group per-day award, reducing the award to just under $30,000.00 plus attorney fees. L&I cross-appealed the high-end award, claiming out that, absent bad faith and with less culpability that in a prior case in which a $45/day penalty was found appropriate, the high end range (the maximum penalty is $100 per day) was an abuse of discretion.

The Court of Appeals affirmed the trial court on both issues.. With respect to the L&I claim that the high per day penalty was error, because there was no bad faith, the Court of Appeals noted that Bricker’s request for documents was clear, the agency made no response even after Bricker followed up on his request, and the L&I inspector had received no PRA training and made no inquiries about how to handle Bricker’s request for information.

On the other hand, in response to Bricker’s appeal, the Court held that it is not an abuse of discretion for a trial court to decline to award penalties for each document per day. Pointing out that other courts, including Yousoufian, had upheld awards based on categories of related documents, this Court approved the trial court’s effort to assess different penalties for different groups of documents, to which (as a group) different Yousoufian factors applied.

Inadvertent Destruction of Records Prior to Request Not Violation of Washington Public Records Act

In early 2008, a public records request was made to the Washington Department of Natural Resources for emails of a DNR official over the prior 2 years. While over 9,200 pages of emails and attachments were produced, emails from 2006 were not available as a result of DNR’s upgrade to its email system in late 2006. DNR engaged outside consultants to search for those records. However, the records could not be recovered. In response to a claim of violation of the Washington Public Records Act (PRA), the Court of Appeals found that DNR’s “destruction” of the emails did not violate the law (August 23, 2011).

The court distinguished cases in which records were destroyed after a request had been made. See Yacobellis v. City of Bellingham, 55 Wn. App. 706 (1989). Rather, the court found that DNR had not delayed in its efforts to produce available records and that it had no responsibility to create or produce a record that was now non-existent. See Building Indus. Ass’n of Wash. v. McCarthy, 152 Wn. App. 720, 734 (2009).

The court did, however , (by a 2 to 1 vote) determine that DNR’s failure to timely acknowledge a PRA request within 5 business days constituted an automatic violation of the PRA. That DNR responded and produced records before a lawsuit was commenced was not controlling. The court remanded the matter to the trial court to consider an award of attorney fees and penalty under former RCW 42.56.550(4).
 

Court Rejects Arizona School District Effort to Restrict Repeated Records Requests

The Arizona Court of Appeals has dismissed an elementary school District’s suit to limit repeated public records requests. Congress Elementary School District No. 17 of Yavapai County v. Warren, 2011 WL 1206192 (Ariz.App. Div. 1, 2011).

This case was in response to multiple requests between 2002 and 2010 to the District from four persons. The requests required the District’s employees to spend more than 417 hours to review nearly 9,000 pages of documents. The District claimed that responding to these requests diverted key staff from teaching and classroom duties.

In 2010, the District filed suit in Arizona superior court against the requestors claiming that the aggregate effect of the requests constituted a public nuisance under Arizona law and an abuse of the public records statute. The District sought an injunction that would prohibit the requestors from filing additional requests without first obtaining permission from a superior court judge. The District argued that this type of injunction has previously been ordered by the courts against repeat filers of frivolous lawsuits. Notably, the District did not claim that any of the prior requests were frivolous or sought records not covered by the Arizona public record statute.

The requestors claimed that such an injunction would violate their rights to free speech, petition for redress, and access to public records under Arizona law. The requestors also argued that issuing such an injunction would reverse the statutory presumption favoring production of public records.

The superior court ruled that there was “no statutory basis for it to impose ‘a judicial screening process for multiple or even unreasonable public record requests’ or to order relief targeting possible future requests” and dismissed the suit. The Court of Appeals affirmed. With respect to the District’s analogy to injunction against repeat filers of frivolous suits, the court found that the District had failed to show that any of the past requests were frivolous. With respect to the District’s public nuisance claim, the court held that a public nuisance suit can only be sustained if the requests “unreasonably interfered with the public health, safety, peace, comfort or convenience” and that the District had failed to make this showing. In addition to winning a dismissal of the District’s claim, the requestors were awarded reasonable attorney fees.

This case provides further support for the principle that significant search burden alone is not sufficient to deny an otherwise legitimate public records request. This case highlights the necessity of all public entities to maintain searchable record management systems and clear record maintenance policies. In light of the high costs that can be associated with responding to extremely broad requests, taking these proactive steps can be well worth the investment.

In Washington, a 2009 amendment to the Public Records Act, RCW 42.56.565, provides a statutory basis for enjoining repeated public records requests from prison inmates, but no such statutory basis exist for enjoining repeated requests from other citizens. Some local agencies in Washington have been successful in securing court orders similar to the order denied in the Arizona case. But, such orders only followed after repeated findings by the courts of frivolous actions or other demonstration of abuse of the court process, even for public records access. Also see the discussion of the unpublished decision in Phillips v. Valley Com., posted in this blog at http://www.localopengovernment.com/2010/12/articles/washington-court-of-appeals-upholds-sanctions-against-disgruntled-employee-for-repeated-frivolous-public-records-requests/.
 

Yes, We Have No Documents: WA Court of Appeals Affirms Denial of Prisoner's PRA Claims

In another of a series of prisoner Public Records Act (PRA) requests in the State of Washington, a Court of Appeals has affirmed the trial court’s denial of a prisoner’s claims that (1) he should be able to review documents to see if there are none, and (2) he should be able to have the medical records of his victim. Simpson v. Okanogan County (unpublished opinion). (See previous 2011 blogs relating to prisoner related public records requests posted on January 20 and January 28.)

In his request from prison, Simpson asked for the records on his case from the prosecutor’s office, including the medical records of his victim. In addition, he asked for the personnel file of the elected Okanogan County prosecuting attorney; and, for the records of any insurance obtained by the County for the prosecutor. In response, the County provided Simpson with his criminal file. But, the County withheld the medical records of his victim; stated that the County had no personnel file for the elected prosecutor; and, that it had no documents relating to insurance for the prosecutor. When Simpson sued to challenge both the withholding of medical records and the denial of documents, the trial court granted summary judgment to the County, and the Court of Appeals affirmed.

Although this is an unpublished opinion, the Simpson decision cites useful Washington precedent related to the two issues noted above:

(1) A declaration that, “Yes, we have no documents,” is conclusive.

“An affidavit stating that a record does not exist is dispositive on a PRA claim; there is no right to personally inspect records to confirm that no record exists. Sperr v. City of Spokane, 123 Wn. App. 132, 136-137, 96 P.3d 1012 (2004).”

(2) Health care records are generally exempt from disclosure under the PRA.

“The exemption for patient health care records is assessed in accordance with the standards of chapter 70.02 RCW, which is incorporated into the PRA by RCW 42.56.360(2). Prison Legal News, Inc. v. Dep’t of Corrections, 154 Wn.2d 628, 644, 115 P.3d 316 (2005). In turn, RCW 70.02.020(1) generally prohibits disclosure of health care information without the patient’s consent. In turn ‘health care information’ is defined in relevant part by RCW 70.02.010(7) as ‘any information . . . that identifies or can readily be associated with the identity of a patient.’ . . . Mr. Simpson knew very well whose information he was requesting – the only health care information that was relevant to his criminal case. Blacking out his victim’s name would not disassociate the records from a particular known person.”
 

Birth Dates of Public Employees Protected from Disclosure by Texas Supreme Court

The Dallas Morning News sought payroll data from the State of Texas. The Texas Comptroller responded with detailed information, including name, age, race, sex, date of initial employment and pay rates. But the Comptroller withheld the employees’ birth dates. The Comptroller then asked for the opinion of the Texas Attorney General, who concluded that the date of birth information could be disclosed.

An action commenced and the trial court and Court of Appeals agreed with the Attorney General. On December 3, 2010, the Supreme Court reversed, holding “a disclosure of state employee birth dates would constitute a clearly unwarranted invasion of personal privacy and therefore exempted from disclosure” under the Texas public disclosure law.

In its consideration, the Supreme Court made specific reference to the public harm caused by identity theft and that the availability of birth dates may facilitate identity theft. The Texas Supreme Court noted other decisions, particularly court decisions under the Federal Freedom of Information Act, that “birth dates implicate substantial privacy interests.”