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

In Burt v. Department of Corrections, __Wn.2d __, __P.3d__ (May 13, 2010, Case No. 80998-4), a plurality of the Washington Supreme Court ruled that a prison inmate was a necessary party to a public records injunction lawsuit filed against the Department of Corrections by corrections officers whose records had been requested by the inmate. Justice Sanders wrote a concurring opinion that the inmate was an indispensible party and agreeing that the injunction must be vacated to allow the trial court to conduct additional proceedings with the inmate as a party.

The Public Records Act, Chapter 42.56 RCW, allows people named in requested public records to seek an injunction barring the release of public records if “such examination [of public records] would clearly not be in the public interest and would substantially and irreparably damage any person, or would substantially and irreparably damage vital governmental functions….”RCW 42.56.540. In late 2004, an inmate requested documents from the Department of Corrections that included employees’ “photographs, addresses, incomes, retirement and disability information, administrative grievances or internal investigations, and any other related document.”  The DOC employees filed suit against DOC seeking an injunction barring the records’ release. DOC openly agreed with the employees’ before the trial court.

The Court (and Justice Sanders) both questioned the trial court’s ability to hold an appropriate adversarial proceeding that would protect public policy favoring disclosure, particularly when the only parties present, DOC and its employees, both argued against disclosure. The dissent asserted that requiring the record requester’s participation is incorrect because a records requester is not automatically prejudiced by not participating in injunction proceedings, for example the balance of necessary joinder factors would be different in cases where the agency argued against an injunction.

Going forward, public agencies faced with a records-release injunction lawsuit should give careful consideration to ensuring the requester’s participation in that lawsuit to prevent duplicative hearings or unnecessary appeals that may result in attorney fees being paid to the requester.

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Update 7/5

What does this mean for other PRA cases?  If you have a case at the penalty stage, I'd probably seek a stay because unless the Court adopts the identical test,  if you do it now you'll just have to do it again later.

Original Post

The Washington State Supreme Court has withdrawn its January Opinion in the long-running Yousoufian v. Office of Ron Sims case.  In that Opinion, the Supreme Court had ruled that the $124,000 Public Records Act penalty award against King County was too small.  The Opinion adopted 16 factors trial courts should use to set penalty amounts.  For more details on the Opinion, see this MRSC article.

King County had moved to have the Opinion withdrawn after it was revealed that the Opinion author, Justice Richard Sanders, had a pending appeal in a Public Records Act case, where he was relying on his Yousoufian Opinion to argue that his judgment against the State should be increased.  In light of the recent U.S. Supreme Court holding in Caperton v. Massey that a West Virginia Supreme Court Justice's decision not to recuse himself violated due process, this result is not surprising. 

Here is an article in the Seattle Times on the Supreme Court's ruling.  Here is a post on the Supreme Court Blog about the order. 

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