Local Open Government Blog : Open Government Law : Foster Pepper Law Firm : Northwest, Seattle, Spokane, Portland Lawyer & Attorney

The FCC released the National Broadband Plan today, setting out ambitious goals for how the federal government conducts business in cyberspace. The Plan targets several concrete goals, including

• 100 million homes with affordable access to 100 megabit per second internet access.
• At least one institutional (e.g., hospital or university) connection at one gigabit per second in every community. 

Closer to open local government’s home, the Plan’s “Civic Engagement” chapter may raise the bar for municipalities in providing access to records and officials. Although the Plan is directed to the federal government, citizens are likely to expect the same level of service from all government agencies, including their local city hall.

Some Plan recommendations that could make their way to local government requirements in the next few years include:

• All responses to Freedom of Information Act (FOIA) requests should be made available online (rather than delivered only to the requester), in part to cut down on time and money spent processing multiple similar requests.
• All government meetings, hearings, and town halls, should be broadcast online.
• Government should accelerate the adoption of social media technologies given the success stories to date, e.g. 37 million views of H1N1 flu-related media feeds.

Given the potential impacts of the Plan (and technological innovation generally) local government stakeholders would be well-advised to educate themselves about broadband technology and its impact on citizen interaction with their government leaders.

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In a recent unpublished decision, a Washington State Court of Appeals addressed a Public Records Act request from the Neighborhood Alliance of Spokane County for records of the County’s Building and Planning Department. Neighborhood Alliance of Spokane County v. County of Spokane, No. 27184-6 (C.A. Wa., Div. III, August 11, 2009).

While an unpublished decision, the Court’s analysis does provide some guidance for a government’s review of electronic records in response to a public record request. First, the Court looked to federal court decisions under the Freedom of Information Act (FOIA) to guide the the standard for judicial review of the government agency’s response to a request.

“The adequacy of the agency’s search is judged by a standard of reasonableness, construing the facts in the light most favorable to the requestor.”

And,

“the agency must show that it ‘made a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested.’”

Applying that standard to Spokane County’s efforts, the Court found that the County had examined one computer, but had not examined an older hard drive used by the author of the subject document. “The County failed to conduct an adequate search for the complete electronic information log showing the date the” record was created.

Also of interest is the Court’s determination that under the Public Records Act, similar to FOIA, the scope of discovery in records litigation is limited to whether a complete disclosure has been made by the agency in response to a request for information. The Court rejected the broad discovery requests for other documents and information to the County that “went far beyond the issue of whether a reasonably adequate search for documents had taken place.”

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Here is an interesting editorial in the Wall Street Journal:  "Why Palin Quit Death by a Thousand FOIAs" The editorial highlights that public records laws can be abused to paralyze a government agency or a public office holder:

This situation developed because Alaska's transparency laws allow anyone to file Freedom of Information Act requests. While normally useful, in the hands of political opponents FOIA requests can become a means to bog down a target in a bureaucratic quagmire, thanks to the need to comb through records and respond by a strict timetable. ... Since Ms. Palin returned to Alaska after the 2008 campaign, some 150 FOIA requests have been filed and her office has been targeted for investigation by everyone from the FBI to the Alaska legislature.”

As bad as this may sound, at least Alaska law -- like the law in most states -- allows the state to charge for search time after giving each requester a taxpayer-subsidized five hours a month for free, which serves as a disincentive to anyone seeking to abuse the law by making large requests. Agencies in Washington, however, cannot charge for search time, which makes the Public Records Act an even more powerful weapon in this state for persons who may want to target an agency or official. And while the vast majority of requesters act in good faith, even one person can paralyze a city or other agency.

(Note, the editorial also highlights the numerous ethics complaints that have led to a half-million dollar attorney-fee bill, which also played a big factor in Palin’s decision to resign.)

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When the U.S. Forest Service was considering whether to fire whistle-blower Glen Ith back in 2007, its ethics chief was keenly aware that his emails on the topic were public records, subject to discover.  His solution?  Instruct all recipients to destroy the emails:

This information is for your eyes only.  Please destroy after reading.  It's not protected by privilege and is subject to discovery.

Melvin Y. Shibuya
Chief, Labor/Employee Relations Branch

He repeated similar warnings in subsequent emails. 

Here is a link to an article that includes these excerpts from those emails.

Justice has prevailed, at least sort of.  Mr. Ith died of a heart attack while on administrative leave, after his job was "downsized" but his widow was recently awarded all of her litigation cost.  

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Update 6/6

As reported by the Huffington Post, President Obama has now included a provision in a war-funding bill that would protect the detainee abuse photos from disclosure. 

Update 6/2

McLatchy Reports: "Why'd Obama switch on detainee photos? Maliki went ballistic."  While fear of foreign uprisings may not be an exemption under FOIA, maybe it should be.

Update 5/19

A federal appeals court has now affirmed the position of President Obama that White House Office of Administration is not subject to the Freedom of Information Act, reasoning that the entity only implements administrative decisions and does not form policy.

Update 5/16

Here is some more food for thought on the President's reasons for not releasing the photos.

Update 5/15

As noted in this article, "Like Bush, Obama White House Chooses Secrecy for Key Office," President Obama is continuing the Bush-era policy of exempting the White House Office of Administration from the Freedom of Information Act.  The article ends by reminding reader's of one of the President's campaign promises on openness:

"More and more, the real business of our democracy isn't done in town halls or public meetings or even in the open halls of Congress," he told an Iowa audience in 2007. "Decisions are made in closed-door meetings, or with the silent stroke of the President's pen, or because some lobbyist got some Congressman to slip his pet project into a bill during the dead of night. We have to take the blinders off the White House."

President Obama has now reversed his position on the release of the additional photographs showing the prisoner abuse at Abu Ghraib.  When the first batch of photos were released in 2004, it caused world-wide outrage.  This article analyzes and deconstructs the six reasons  President Obama seems to be relying on for this change. 

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The Department of Justice posts summaries of all FOIA decisions on a monthly basis.  Here is the post for April 2009. Here are earlier posts for March, February and January 2009.

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Update May 31, 2009

U.S. Attorney General Eric Holder’s Memorandum For Heads of Executive Departments and Agencies provides a nice summary of what the presumption of openness means.  The Attorney General identifies three ingredients:

1. Only assert an exemption if nondisclosure serves the exemption’s public purpose.

2. When possible, redact exempt information rather than withhold an entire document.

3. Never assert an exemption merely to hide mistakes or because of abstract concerns.

Here is what the memo actual states:

             First, an agency should not withhold information simply because it may do so legally. I strongly encourage agencies to make discretionary disclosures of information. An agency should not withhold records merely because it can demonstrate, as a technical matter, that the records fall within the scope of a FOIA exemption.

             Second, whenever an agency determines that it cannot make full disclosure of a requested record, it must consider whether it can make partial disclosure. Agencies should always be mindful that the FOIA requires them to take reasonable steps to segregate and release nonexempt information. Even if some parts of a record must be withheld, other parts either may not be covered by a statutory exemption, or may be covered only in a technical sense unrelated to the actual impact of disclosure.

             At the same time, the disclosure obligation under the FOIA is not absolute. The Act provides exemptions to protect, for example, national security, personal privacy, privileged records, and law enforcement interests. But as the President stated in his memorandum, "The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears."
 

ORIGINAL POST

One way to tell a good public records law from a bad law is that a good law starts with a presumption that all records are open and then defines exceptions.  A bad law will presume the opposite and instead define what records have to be disclosed. 

Washington law has always included the presumption of disclosure.  Here is a story about South Dakota, which just amended its public records law to include the presumption of disclosure. 

Washington law codifies this presumption in two provisions of the Public Records Act:

RCW 42.56.550(1) provides "The burden of proof shall be on the agency to establish that refusal to permit public inspection and copying is in accordance with a statute that exempts or prohibits disclosure in whole or in part of specific information or records."

RCW 42.56.030 then heightens the burden an agency will have to meet before it can withhold a record by providing that the Act "shall be liberally construed and its exemptions narrowly construed" to promote the Act's stated purpose of allowing the public to stay informed about government.   

The result of these two provisions is that an agency must disclose any public record, unless it can prove that under a narrow interpretation of a statutory exemption, the record is exempt from disclosure. 

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Here is an editorial on the "torture memos" from the Olympian written by the editor of this blog, Ramsey Ramerman.  It was inspired by George Will's recent statement on ABC's This Week:  "The problem with transparency is that it’s transparent for the terrorists as well.”

Update 5/13:  Here's the Og-Blog's take on the editorial.  As it correctly notes, President Obama's administration has not been as transparent as many had hoped, particularly with regards to the Federal Reserve and the AIG bailout. 

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