Public Records for "Commercial Purposes"? Washington Court of Appeals Addresses Another Dispute - Rejects Union's Constitutional Privacy Argument

Earlier this year, Division II of the Washington Court of Appeals determined that the Freedom Foundation’s public records request for names and contact information of home healthcare workers was not a request for “commercial purposes.” SEIU Healthcare 775NW v. Dep’t of Soc. & Health Servs., 193 Wn. App. 377, 377 P.3d 214, review denied, 186 Wn.2d 1016 (2016). This week, the Court addressed a similar dispute over the Foundation’s request for names of childcare providers in Washington’s “Family, Friends and Neighbors” program and their “state contact” information. SEIU Local 925 v. Freedom Found., No. 48522-2-II (Dec. 20, 2016).

Washington’s Public Records Act, chapter 42.56 RCW (“PRA”), prohibits disclosure of “lists of individuals requested for commercial purposes.” RCW 42.56.070(9). The Foundation claimed that its purpose was to notify childcare providers of their right to refrain from union membership and fee payments. SEIU countered that the Foundation’s fundraising materials specifically mention its use of the lists of provider names. Largely reiterating its prior holdings, the Court held that the Foundation’s purpose was not a commercial one because the Foundation does not intend to general revenue or financial benefit from the direct use of the information. Financial benefit garnered from mentioning the provider information to publicize the Foundation’s work was too attenuated to be a direct use.
 
Also in line with its prior decision, the Court rejected SEIU’s “linkage argument” – that information can become non-disclosable if it could somehow lead to other private information being tracked down from other sources. While property addresses might be the same as the locations where children live or receive childcare, the Foundation’s request did not seek the names and addresses of any specific children. The Court would not look to what information could be discovered beyond the four corners of the records requested to determine if an exemption applied.
 
The Court next considered SEIU’s argument that the privacy protections in article I, section 7 of the Washington constitution prohibited the release of the requested information. The Court rejected this claim, finding that (1) SEIU did not meet its burden of proving that a person’s name and contact information were historically treated as “private affairs” under the constitution; (2) representations by a state agency that information would be kept confidential did not give constitutional protection to such information; (3) the situation was not analogous to the home privacy issues implicated by warrantless searches of a home; and (4) the PRA provided “valid authority of law” to obtain information provided to participate in a public program. The trial court therefore did not err by denying a permanent injunction on the basis of SEIU’s constitutional and statutory arguments.
 

No Expectation of Privacy in Digital File Downloaded to Publically-Accessible Folder through File-Sharing Software

The California Court of Appeals has upheld a Napa County court decision finding that a child pornographer had no reasonable expectation of privacy in files that were publically-accessible, despite his having taken measures to obfuscate them.

After the trial court denied his motion to suppress evidence, defendant Richard Evensen pleaded guilty to various sex crimes. This evidence had been obtained through software tools known as "RoundUp" that targets peer-to-peer-file-sharing networks to identify Internet Protocol ("IP") addresses associated with known digital files of child pornography. RoundUp is only available to law enforcement officials. A public website identified one such IP address to be registered with Comcast, which, upon execution of a search warrant, revealed the subscriber of the IP address to be Evensen's mother. A second search warrant was then executed, leading to further inculpatory evidence. Upon Evensen's arrest, further evidence of wrongdoing was also found.

In his motion to suppress, Evensen argued that the software tools used by the police violated his Fourth Amendment rights. The trial court rejected this and the appellate court affirmed.

According to the court, while computer users "generally have an objectively reasonable expectation of privacy in the contents of their personal computers," there are certain exceptions. One such exception is in the contents of a file that has been downloaded to a publically accessible folder through file-sharing software. Although Evensen argued that he took several measures to ensure the privacy of his computer files by changing his file sharing software's default setting to prevent others from accessing his shared public folders, the court noted that these measures still left his files occasionally open to the public (depending on how often he moved his files from his "shared" folder to his "private folder"). Had his files been completely private, they would not have been identified by "RoundUp." Therefore, he had no reasonable expectation of privacy.

People v. Evensen, No. A145162 (Cal. Ct. App. Oct. 27, 2016)

Copyright (c) 2016 International Municipal Lawyers Association (IMLA) - Republished with permission

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.”

Court Of Appeals Reverses Large Public Records Act Penalty Imposed On University Of Washington

In Bichindaritz v. University of Washington, Division One of the Court of Appeals reversed a $723,290.50 penalty and $102,958.03 attorney fee award for violations of the Public Records Act by the University of Washington.  The trial court had concluded that the University’s production of documents to the requestor, a former employee who had sued the University, was not in good faith and that the University waited too long to produce records it had already assembled but had not yet reviewed.  The University appealed.

In particular, the University challenged the trial court’s conclusion that as soon as the University had assembled the responsive documents, they were ready to be produced to the requestor.  The Court of Appeals agreed with the University, explaining that the Public Records Act requires that responses to records requests be made “promptly,” but also expressly recognizes that an agency may need additional time to determine whether any part of the information requested is exempt.  See RCW 42.56.520.  As the court summarized:

By the time Bichindaritz closed her 2009 request in February 2011, the University had assembled about 25,000 pages but had reviewed only about half of them for exemptions.  It was unreasonable to expect the University to produce the remaining 12,000 pages the same day Bichindaritz reopened her request simply because it had already assembled those documents.

Opinion at 7 (emphasis in original).

The Court of Appeals also rejected the requestor’s argument that the University’s violation could be sustained on the basis that the University “repeatedly missed production deadlines.”  The court observed that the Public Records Act demands only that an agency provide reasonable estimates for production—not necessarily that an agency comply with its own self-imposed deadlines.  “The question is whether the agency ‘was acting diligently in responding to the request in a reasonable and thorough manner.’”  Opinion at 9 (citing the recent decision in Hobbs v. State).  Here, the requestor did not argue – and the record did not indicate – that the University was less than diligent in completing its review and redaction of the final records for production.  Concluding that the University had not violated the Public Records Act, the Court of Appeals reversed the trial court’s imposition of penalties and attorney fees.
 

Water District Wins Anti-Harassment Order Against Public Records Requestor, But Still Found to Violate Washington Public Records Act

Belfair Water District is a small water district with approximately 1,200 customers located near Bremerton. The District is the latest public agency to face civil penalties for violations of the Washington Public Records Act. Judge rules against Belfair Water District in public records dispute, Steven Gardner, Kitsap Sun, August 6, 2011. The litigated requests began in 2009 when Greg Waggett asked for copies of the District’s insurance policy and current budget.  Around the same time, Bonnie Pope, another requestor, requested copies of District commissioners’ expense reimbursement records. These were apparently the first public record requests handled by District staff.

Following these initial requests, Waggett began submitting increasingly burdensome requests to the District. According to the District, responding to these requests began to take up significant portions of district staff time and, ultimately, became so burdensome that two district employees quit their District jobs.

According to the District, Waggett also began to harass District staff. This harassment led the District Manager, Dave Tipton, to seek an anti-harassment order against Waggett. A court issued an anti-harassment order against Waggett for one year.

A year later, a hearing was held to determine whether the anti-harassment order should be renewed. The judge ultimately declined to renew the order citing the fact that Waggett had not violated the order in the previous year. Following this decision, Waggett’s attorney used the hearing to submit additional public record requests to the District. Waggett’s attorney handed Tipton public record requests in the courtroom and even had the judge acknowledge this in the official hearing record. Tipton would later argue that he never “accepted” these requests.

Following the court hearing, Waggett and Pope sued the water district alleging numerous violations of the Public Records Act (Chapter 42.56 RCW). Waggett and Pope argued that the District summarily denied requests instead of requesting clarifications; refused to accept record requests submitted through certified mail; and failed to respond to the requests submitted to Tipton at the court hearing. In early August, a Mason County Superior Court judge ruled in favor of the requestors and found that the District would be liable for the attorneys fees of the requestors and daily civil penalties. The judge will later determine the total amount due from the District.

This case illustrates that public agencies faced with harassing public record requestors may successfully obtain anti-harassment orders (or, declaratory judgments) to protect staff. Anti-harassment orders could prove to be a valuable tool in preventing requestors from interfering with public business. However, agencies should be aware that obtaining an anti-harassment order against a requestor does not relieve the agency’s obligation to respond to otherwise valid requests submitted by the requester. As this case shows, it is entirely possible that an agency can obtain an anti-harassment order against a requestor and still be found in violation of the Public Records Act.
 

U.S. Supreme Court Considers Whether FOIA Protects Corporate "Personal Privacy"

The U.S. Supreme Court will soon decide whether the Freedom of Information Act (“FOIA”), 5 U.S.C. § 551-559, protects a corporation’s interest in “personal privacy.” In September of 2009, the Third Circuit ruled in favor of AT&T and against the Federal Communications Commission (“FCC”) in finding that FOIA’s law enforcement exemption protects a corporation’s interest in “personal privacy.” AT&T Inc. v. Federal Communications Commission, 582 F.3d 490 (2009). The FCC has appealed the ruling to the U.S. Supreme Court, which heard arguments in the case on January 19, 2011. See Court Weighs Whether Corporations Have Personal Privacy Rights, New York Times, January 19, 2011.

FOIA exempts from mandatory disclosure records collected for law enforcement purposes to the extent disclosure “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C). FOIA does not define personal, but does define person as “an individual, partnership, corporation, association, or public or private organization other than an agency.” 5 U.S.C. § 551(2)

This case arose from a FCC investigation into whether AT&T overcharged the U.S. government for an AT&T program. Under the program, AT&T provided equipment and services to elementary and secondary schools and then billed the U.S. government for program costs. In 2004, AT&T discovered that that it may have overcharged the U.S. government for some services, and voluntarily reported the issue to the FCC’s Enforcement Bureau. The FCC investigated the matter and the issue was ultimately settled.

Following the investigation, CompTel, a trade association representing AT&T competitors, submitted a FOIA request to the FCC seeking records relating to the AT&T investigation. AT&T opposed the disclosure, arguing that the records were collected as part of a law enforcement investigation and the disclosure of the records would constitute an unwarranted invasion of AT&T’s privacy. The FCC rejected AT&T’s argument stating “personal privacy” does not apply to corporations. 

AT&T ultimately appealed the decision to the Third Circuit, which ruled in favor of AT&T.  The Third Circuit held that “FOIA’s text unambiguously indicates that a corporation may have a ‘personal privacy’ interest within the meaning of the [law enforcement exemption].” 582 F.3d at 498. The Third Circuit remanded to determine whether the disclosure of these particular documents would constitute an unwarranted invasion of AT&T’s personal privacy.

The Third Circuit’s opinion noted that the U.S. Supreme Court has never squarely rejected a corporation’s ability to claim a personal privacy interest.  The Supreme Court’s decision in Federal Communications Commission v. AT&T Inc. will test this precedent. 

Supreme Court to Consider Disclosure of Copies of Documents Placed Under Seal by a Court

The Seattle Times reported on the Supreme Court arguments in a dispute between the Yakima Herald-Republic and Yakima County regarding the disclosure of copies of court documents.  The dispute involves the billing records of defense attorneys in a murder case that were placed under seal by a judge.  The judiciary is exempt from the disclosure requirements of the Public Records Act, but in this case the County also has copies of the records, and the newspaper sought disclosure of the records from the County.  At issue is whether copies of documents also located in a sealed court file are subject to disclosure under the Public Records Act. The Seattle Times article is available here.