Anti-SLAPP Statute Held Inapplicable to PRA Injunction Actions that Do Not Primarily Seek to Limit Protected Activities

In a much‑anticipated Public Records Act case, the Washington Court of Appeals, Division I, held in Egan v. City of Seattle that PRA requests do not constitute constitutionally protected speech subject to the protections of the state’s anti‑SLAPP statute. 

James Egan submitted a Public Records Act request for certain internal investigation records, including 36 “dash‑cam” videos, from the Seattle Police Department. The City of Seattle withheld 35 of those videos, claiming that a specific provision of the state’s privacy statute (RCW 9.73.090(1)(c)) prohibited the City from releasing the videos until final disposition of a pending lawsuit arising from the recorded events. 

Egan disputed that the exemption applied and threatened to sue. Under the PRA’s injunction statute, RCW 42.56.540, the City moved to enjoin release of the videos and for declaratory judgment that the records were exempt from disclosure. Egan then filed a motion to strike under Washington’s anti‑SLAPP statute, RCW 4.24.525, arguing that the City sought to chill his right to public participation and petition with its injunction action. 

The anti‑SLAPP statute helps to protect a defendant’s exercise of First Amendment rights by providing a damages remedy for retaliatory litigation, otherwise known as “strategic lawsuits against public participation.” In order to prevail on an anti‑SLAPP motion, a defendant must first establish by a preponderance of the evidence that the claim is based on an action involving public participation or petition. Egan argued that the anti‑SLAPP statute applied because the City moved to enjoin Egan’s PRA request based on his “threat” to sue. 

The Court disagreed. The right to access public records is purely statutory. It is not granted by the state or federal constitutions or compelled by the First Amendment. Here, the City’s injunction action was not based on Egan’s threat to sue (protected speech), but instead it was based on the parties’ underlying controversy about whether the privacy statute applied as an exemption to Egan’s PRA request. Because the purpose of City’s injunction action was to determine an underlying controversy, as opposed to suppressing Egan’s right to sue under the PRA, the Court held that the anti‑SLAPP statute did not apply.  

First Amendment Permits Limit on Comments at City Council Meetings to Agenda

A Federal District Court in Connecticut recently ruled that the Middletown Common Council did not violate the First Amendment when it passed a resolution limiting speech during televised Council meetings to items on the agenda. Smith v. City of Middletown, 2011 WL 3859738 (D.Conn. 2011).

Prior to October 2006, the Council reserved the beginning of Council meetings for the public to speak on topics not on the meeting agenda. This segment of the meeting devoted to non-agenda items was televised. In October 2006, the Council unanimously voted to change the Council meeting format to move the segment on non-agenda items to the end of the Council meeting and to not televise that segment. Members of the public were still allowed to address the Council regarding items on the agenda during the regular Council meeting, which continued to be televised.

In 2009 the Council voted again to alter the format of the Council meetings by terminating the segment on non-agenda items. In its place, the Council began holding monthly meetings at different locations in the community where member of the public could discuss issues not included on the Council meeting agenda.

Following the 2009 format change, Lee Smith and Donna Gagnon-Smith sued the Council claiming that the rule changes were intended to limit their free speech rights under the First Amendment of the Constitution. The Smiths regularly spoke before the Council on non-agenda items and even one Council member admitted that one of the reasons for changing the format of the Council meetings was to “turn off the cameras” for “a couple” that spoke before the Council “all the time.”

The Federal District Court of Connecticut reviewed the actions of the Council under the rules governing limited public forums. The Ninth Circuit has similarly held that city council meetings are limited public forums. White v. City of Norwalk, 900 F.2d 1421, 1425 (9th Cir. 1990). In a limited public forum, a governmental entity may impose restrictions on speech that are reasonable and viewpoint neutral. Applying this test, the Connecticut court held that the Council was entitled to restrict public comments at Council meetings to topics on the agenda, because an individual’s viewpoint does not affect whether they are permitted to speak. The court also held that the fact that the Council may have been motivated to institute the format change to restrict the Smiths’ speech is irrelevant, because the rule actually passed by the Council was viewpoint neutral. See Hill v. Colorado, 530 U.S. 703 (2000). Therefore, the court held that the Smiths had not suffered a deprivation of their First Amendment right to freedom of speech and dismissed the action.

U.S. Supreme Court Hears Oral Arguments from State of Washington

The U.S. Supreme Court heard oral argument on April 28, 2010 in the case of Doe v. Reed [Sam Reed, Washington State's Secretary of State].  As we have previously blogged, the case addresses whether public release of referendum petition signatories under Washington’s Public Records Act violates First Amendment rights.  The justices sharply questioned the plaintiff's attorney, who sought to prevent release of the names of people who signed a referendum petition to require a public vote to overturn Washington’s “everything but marriage act.”  A Seattle Times article on the oral arguments including a public transcript is available here

U.S. Supreme Court Will Hear Oral Argument Tomorrow From State of Washington

Tomorrow (April 28, 2010), the U.S. Supreme Court will hear oral argument in the case of Doe v. Reed – addressing the question of whether the release of the names of referendum petition signatories pursuant to Washington’s Public Records Act violates First Amendment rights.

The case involves the attempt to seek release of the names of people who signed a referendum petition to require a public vote to overturn the legislature’s enactment of Washington’s “everything but marriage act.”  The Secretary of State was poised to release the names, when a group named “Protect Marriage Washington” and two individual signatories to the referendum petition (John Doe #1 and #2) sought a preliminary injunction in Federal District Court to stop the release.  The District enjoined the release finding that it would impinge on First Amendment rights.  The Ninth Circuit heard expedited review of that ruling and reversed the decision on October 15, 2009 – before the election. Doe v. Reed, 586 F.3d 671 (9th Cir. 2009).  Four days later, however, the U.S. Supreme Court stayed the Ninth Circuit ruling, reinstated the District Court’s preliminary injunction and accepted review. Doe v. Reed, No. 09-559.

The Washington Attorney General  will argue the case tomorrow on behalf of the State’s Secretary of State,  and urge the Supreme Court to affirm the Ninth Circuit ruling.  The State’s position is that when people sign a referendum petition to substitute their view for that of the Governor and Legislature, they are engaging in a public legislative process and have no expectation of privacy when they sign such a referendum petition. 

Disclosure + Internet = Threat to Democracy?

Update 8/3

Here's an update from the Open Records Blog -- a great blog that tracks state public records issues nation wide -- on the R-71 controversy.  The Post also provides Tim Eyman's perspective on the issue. 

Update 7/30

As noted by the Seattle Times, a Federal Judge has issued an injunction prohibiting the State from releasing the names of the persons who signed the R-71 petition.  According to the Times:

Judge Settle . . . gave what appears to be a nod to the strength of the referendum backers' case, writing that they "have sufficiently demonstrated a reasonable likelihood of success on the merits" of their First Amendment claim, and "a reasonable likelihood of irreparable harm if the names are released."

Here is an editorial from the Yakima Herald on this ruling:  "Open records means just that -- so release the names on R-71"

Update 6/11

The Secretary of State's office has weighed in on this debate on its blog, "From Our Corner."  The post summarizes of Elections Director Nick Handy's position and captures the conflicts this issue raises:

State Elections Director Nick Handy notes the the state has long been committed to open records and transparency in government, but says he’s unhappy with the thought of the petition process being used as a weapon to dampen voters’ participation in their constitutional right of petition.

***

“Nobody is comfortable with releasing personal information in situations like this, but it is part of transparency in government,” Handy says. “We hope people will keep their cool.”

Almost everyone would agree that information on campaign donations should be public, and it is.  Likewise, almost everyone would agree that information about how an individual voter voted should be private, and it is.  Signing a petition seems to fall somewhere in between, but under current law, no privacy exists. 

Original Post 6/10

In this Seattle Times article, the author puts the spotlight on a new trend of publicizing the names of persons who sign petitions for initiatives and referenda.  The stated goal of this tactic is to foster conversations between those who sign a petition and their friends and family who oppose the initiative or referendum.  Critics say the real goal is to intimidate potential signers who don't want to be publicly associated with a controversial issue.  The article quotes the president of a special interest group as noting:

"They are using the public-disclosure laws to punish people for participating in the democratic process — a core right."

As the Internet brings the prospect of a more transparent government, this state and other governments will face new questions about privacy and fairness that weren't implicated when most public access was to pieces of paper.