Hard Times for Hard Drives: The Washington Supreme Court Addresses the Public Records Act in the Digital Age
Once again the Washington Supreme Court will be called upon to evaluate the reach of the Public Records Act (“PRA”) in the digital age. On Thursday, January 27, 2011, the Court entertained oral argument in Neighborhood Alliance of Spokane County v. County of Spokane, No. 84108-0, a case involving Spokane County’s failure to produce missing electronic records ostensibly stored (then erased) off the hard drive of an old, retired County computer.
In 2005, Alliance, a nonprofit government accountability group, made several public records requests seeking documents they believed would expose alleged nepotism in County hiring processes. In response to Alliance’s request, County officials checked the hard drives of the computers its employees were currently using, but did not search computers that were no longer in use (no matter how recently the computers had been retired). The hard drive of a particular computer that may have held the requested information was wiped clean and thereafter, despite Alliance’s outstanding records request, the retired computer was not searched. The parties disagreed as to whether the record did exist on the hard drive, whether the County conducted a proper search, whether the County violated the PRA, and if so, the appropriate level of penalties. The Court of Appeals held that the County did violate the PRA by failing to conduct a “reasonably adequate” search for the complete electronic information requested, and remanded the case to the trial court to determine the resulting penalties, costs and fees.
As reported by the Spokesman-Review, the Supreme Court will revisit these issues in depth. In particular, the Justices will be asked to decide what constitutes a “reasonable” search of such electronic records in a world where computers are constantly upgraded, replaced and repurposed. Must agencies regularly search old computers? All electronic storage systems? How soon can a hard drive be wiped?The Court will also face the issue of the financial burden on the County. For example, the case raises the question of whether $100 daily penalties should keep accruing or whether the clock should have stopped running on any penalties at the time the hard drive was wiped clean.
Neighorhood Alliance comes on the heels of a another Washington State case addressing the intersection of electronic discovery and the PRA. See O’Neill v. City of Shoreline, 240 P.3d 1149 (2010) (holding that metadata is subject to disclosure as a public record). We’re likely to see more cases on this topic as agencies attempt to determine their responsibilities under the Act as they incorporate new practices and technologies in the digital age.