Washington Appellate Court Addresses, Again, PRA Statute Of Limitations For Single Production Responses - Is The Air Clearing?

In 2005, the Washington Legislature amended the Public Records Act to shorten the statute of limitations from five years to one year.  See Laws of 2005, ch. 483, § 5; former RCW 42.17.410.  Actions for judicial review under RCW 42.56.550 now “must be filed within one year of the agency’s claim of exemption or the last production of a record on a partial or installment basis.”  RCW 42.56.550(6).  Since this amendment, however, appellate courts have given the statute inconsistent treatment in cases involving single productions where no exemptions were claimed by the agency.  This issue most recently arose in last week’s decision from Washington’s Court of Appeals (Division I) in Mahmoud v. Snohomish County, No. 70757-4-I (unpublished).  There, the court held that the one-year statute of limitations barred all of the requestor’s claims. 

Division I previously addressed this statute in Tobin v. Worden, 156 Wn. App. 507 (2010).  In that case, the court held that the one-year limitations period is triggered only by a claim of exemption or the agency’s “last partial production” – meaning the production of a record that is “part of a larger set of requested records.”  Id. at 514 (quoting RCW 42.56.080).  Because the production in Tobin involved no exemption and the production of a single document, the court held that the one-year statute of limitations did not apply. 

Division II disagreed with Tobin.  Division II first addressed the case in Johnson v. State Department of Corrections, 164 Wn. App. 769 (2011).  After noting that Tobin did not address the potential applicability of the two-year “catch-all” limitations period in RCW 4.16.130, the Johnson court observed that “it would be an absurd result to contemplate that, in light of two arguably applicable statutes of limitations, the legislature intended no time limitation for PRA actions involving single-document production.”  Id at 777.  The Johnson court did not ultimately determine which limitations period applied because the action had been filed more than two years after the agency response and was therefore barred by the catch-all limitations period in any event. 

In Bartz v. State Department of Corrections Public Disclosure Unit, 173 Wn. App. 522 (2013), Division II was required to resolve this issue.  Bartz involved a single production of records that occurred more than one year, but less than two years, prior to the lawsuit.  Following its reasoning in Johnson, the Bartz court explained that it “would also be absurd to conclude that the legislature intended to create a more lenient statute of limitations for one category of PRA requests.”  Id. at 537.  Expressly rejecting Tobin, the Bartz court concluded that the legislature intended the PRA’s one-year statute of limitations to apply to requests completed by a single production of records.  The court declined to follow a literal reading of the statute because doing so would lead to absurd results.  Despite the apparent conflict between the Courts of Appeals, the Supreme Court denied review in BartzSee 177 Wn.2d 1024 (2013).

With Division I’s recent decision in Mahmoud, the courts appear to be trending toward the one-year limitations period for single productions.  One of the plaintiff’s public records requests in  Mahmoud involved a single production that was later followed by a letter confirming that no other responsive documents existed.  The plaintiff argued that this production was incomplete and therefore could not trigger the limitations period.  The court disagreed, quoting language from Bartz and Johnson that it would be an absurd result to conclude that the legislature intended no statute of limitations for PRA actions involving a single production of documents.  Opinion at 14-15; see also id. at 18.  Regardless of whether the court considered the single production itself or the confirming letter to be the trigger, the one-year period expired at least seven months before the plaintiff’s suit was filed.  Id. at 15. 

Division I’s decision in Mahmoud suggests that the court has reconsidered its position on the statute of limitations in RCW 42.56.550.  At minimum, it raises doubt as to the continuing precedential value of Tobin.  The court cited Tobin as contrary authority in a footnote, but did not elaborate further.  Of passing interest is that Chief Judge Michael Spearman, who concurred in Mahmoud, was also a concurring judge in Tobin.  At present, no motion to publish the opinion or petition for review to the Supreme Court has been filed.  Those deadlines are November 17 and 26, respectively. 

 

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.  

Failure to Conduct a Reasonable Search Supports a Finding of Bad Faith Under the PRA

In Francis v. Washington State Department of Corrections, Division II of the Court of Appeals held that the Department acted in bad faith by not conducting a reasonable search in response to an inmate public records request, awarding both penalties and costs.  This is the second time in the past month that Division II has addressed the 2011 amendments to RCW 42.56.565, which now prohibits an award of PRA penalties to an inmate unless the responding agency acted in bad faith.  See Gronquist v. Dep’t of Corrections (Oct. 29, 2013).

Unlike Gronquist, however, here the court found that DOC acted in bad faith.  In particular, the court noted (1) a delayed response by the agency, (2) lack of strict compliance with PRA procedural requirements, (3) lack of proper training and supervision, (4) negligence or gross negligence, and (5) sufficient clarity in Francis’s request. In responding to the request, DOC spent no more than 15 minutes searching for the documents, which the court described as “almost a rubber-stamp situation.”  Despite these findings, the court also found no recklessness or intentional noncompliance, no intentional hiding or misrepresentation, and no deceit on DOC’s part.

DOC’s primary argument was that bad faith, which is not defined in the PRA, requires some intentional, wrongful act.  The court disagreed.  After reviewing PRA and non-PRA cases discussing bad faith,  as well as federal FOIA cases, the court determined that DOC’s proposed standard was untenable.  The court also looked to legislative intent and the underlying purposes of the PRA in concluding that bad faith should be given a broader reading. While bad faith would not apply where an agency simply made a mistake in a record search or followed a legal position that is subsequently reversed, it would be liable if it failed “to carry out a record search consistently with its proper policies and within the broad canopy of reasonableness.”  

After the court of appeals affirmed the trial court’s determination of bad faith and its award of $4,495 in penalties, the court reversed the trial court’s refusal to award costs.  Explaining that RCW 42.56.550(4) is a mandatory cost-shifting provision, the court held that Francis should have been awarded his costs as the prevailing party.  The court also awarded Francis his costs on appeal.

No PRA Penalties for Prisoners Absent Bad Faith; Prison Video Surveillance Properly Withheld

In Gronquist v. State of Washington, Department of Corrections, Division II of the Court of Appeals held that RCW 42.56.565(1) prohibits an award of PRA penalties to a prison inmate serving a criminal sentence absent a showing of bad faith by the agency who denied the request. 

Prison inmate Gronquist had requested several records from the Department of Corrections, including certain surveillance videos of the prison where he was incarcerated.  DOC withheld the surveillance videos as exempt investigative records essential to effective law enforcement under RCW 42.56.240.  DOC also inadvertently failed to disclose one page in a 96-page production of documents, which it later provided to Gronquist upon discovery of the error.  The trial court awarded penalties of $15 per day ($260 total) to Gronquist, but found no bad faith on DOC’s part.  Gronquist appealed on several grounds.

Although neither party advanced the argument, the court rejected Gronquist’s appeal of the PRA penalties on the ground that RCW 42.56.565(1) barred any penalties to a prison inmate absent a showing of bad faith.  Because the trial court found no bad faith by DOC, Gronquist was not entitled to any PRA penalties, although the penalties were ultimately left intact because DOC had not cross-appealed the award.  The court also confirmed that the statute applied to Gronquist’s lawsuit because “final judgment” (broadly defined to include exhaustion of appellate review) had not been entered when the statute took effect in 2011. 

With respect to the prison surveillance videos, the court observed that such videos fall squarely within the core definitions of “law enforcement” under RCW 42.56.240.  The court further held that DOC met its burden of showing that the nondisclosure was “essential to effective law enforcement” by submitting the affidavit of DOC’s Director of Prisons, who explained that providing inmates access to surveillance videos would allow them to exploit weaknesses in the surveillance system.  The court concluded that the videos were properly withheld as exempt from disclosure under the Public Records Act.

In the remainder of the opinion, which was unpublished, the court rejected Gronquist’s other arguments as insufficiently supported, abandoned on appeal, or moot.  The court also reiterated prior cases stating that the PRA does not require public agencies to research or explain public records, or to create records that do not exist.  

The Record Counts: Properly Asserting and Explaining PRA Exemptions Before and During Litigation

In Gronquist v. Washington State Department of Licensing, the Washington Court of Appeals, Division II, held that the Department of Licensing improperly redacted several items from a business license application prior to disclosure. Citing RCW 42.56.070(1), Licensing argued that the home address, home telephone number, business telephone number, income information, employee information, banking information, and marital status information from a business license application were all exempt from disclosure under three “other statutes” incorporated into the PRA, among other exemptions.

The Court of Appeals disagreed. First, the redacted information was not protected tax information under Department of Revenue statutes. RCW 82.32.330 (return or tax information) did not apply to the redacted information because the statue, in fact, authorizes Revenue to disclose “tax information that is maintained by another Washington state or local governmental agency….” Because Licensing (another agency) held the application, the information was not protected tax information under the Revenue statute. Although the PRA itself also exempts personal tax information collected in connection with an assessment or tax, this exemption did not apply because business license applications do not provide financial information for tax purposes.

Second, Employment Security Department statutes also did not exempt the redacted information. RCW 50.13.020 (employer information or records) did not exempt the applicant’s marital status information because the Employment Security statute exempts only information “obtained by” Employment Security, and the PRA itself limits the scope of this statute to records “maintained by” Employment Security, RCW 42.56.410. Here, Licensing, and not Employment Security, maintained and obtained the business license application. Additionally, the Employment Security statute did not apply because the applicant, operating as a sole proprietorship, was not an “employer.”

Third, under a similar line of reasoning, the Court held that Department of Labor and Industries statutes did not apply. RCW 51.16.070 (employment information) did not exempt information in the application because the applicant was a sole proprietorship, did not have employees, and was not an “employing unit” under the statute.

The Court also held that Licensing failed to provide Gronquist with a proper and timely explanation for its redactions under RCW 42.56.210(3), initially and throughout every stage of litigation. First, Licensing failed to provide any explanation for the redactions in its initial production. Second, the explanation provided by Licensing after Gronquist filed this lawsuit failed to specify what information had been redacted, which exemptions applied to each redaction, or how those exemptions applied. Third, Licensing’s second explanation submitted in connection with in camera review also failed to link specific exemptions to specific redacted items. Finally, on appeal Licensing relied on different exemptions and only sought to explain some of the redactions.

The Court also noted that Licensing took eight business days to respond to Gronquist’s request, making its initial response three days late. Licensing argued that it received Gronquist’s letter on July 31, 2009, that its letter response to Gronquist was dated that same day, and that Gronquist did not controvert these facts in the record. Rejecting these arguments, the Court noted that Licensing submitted a declaration of one of its senior administrators stating that the office received Gronquist’s request “[o]n or about July 21, 2009.”

Although the PRA does not authorize a freestanding penalty for an agency’s failure to provide explanations for withholding records, failure to explain amounts to a “silent withholding” that may aggravate the penalty for wrongfully withholding a record. The Court recommended that these were proper considerations for determining the penalty amount on remand in order to “discourage improper denial of access to public records.”

Under the PRA, Non-Physicians are Peers of Physicians

Responding to complaints about Dr. Cornu-Labat, Quincy Valley Hospital conducted two ad hoc investigations concerning separate allegations of intoxication and incompetency to practice medicine.  The ad hoc investigations failed to uncover enough evidence to substantiate either claim.  However, hospital administrators “remained concerned” for the Doctor, placed him on paid administrative leave, and referred him to the Washington Physicians Health Program.  After Dr. Cornu-Labat refused to visit WPHP, which precluded WPHP from issuing a recommendation on his fitness to practice medicine, the Hospital fired him. 

Dr. Cornu-Labat filed separate Public Records Act requests for documents relating to both investigations.  The Hospital denied the first request, claiming the Hospital was not an agency subject to the PRA and that the records relating to the intoxication investigation were “investigative” and exempt under RCW 42.56.240.  His second, third, and fourth requests sought documents from both investigations, and the Hospital eventually denied those requests under PRA exemptions specific to the healthcare industry. 

The Grant County Superior Court held that the peer review exemption cited by the Hospital did not apply because under RCW 4.24.250 (and RCW 42.56.360) peer review committees must be regularly constituted and consist of professional peers.  The ad hoc investigations here included non-physicians. 

The Washington Supreme Court reversed and held that the plain language of RCW 4.24.250 extended the exemption to committee records of non-physician staff sitting on the committee.  RCW 42.56.360 did not narrow the scope of “peer review committee” for the purposes of exempting records from disclosure under RCW 4.24.250.  Because other peer review statutes allow officers, directors, and employees to sit on review committees, the Hospital’s ad hoc investigations qualified as peer review committees even though non-physicians participated. 

The Court remanded on this issue to determine whether the investigations were a function of regularly constituted committees or whether the investigations were conducted by ad hoc committees not entitled to the exemptions under RCW 4.24.250.  The Court also remanded to determine whether the records sought embodied the proceedings of a formal meeting of the Hospital board (or its staff or agents) concerning the Doctor’s clinical privileges and therefore exempt from disclosure under RCW 70.44.062(1)).  If the records were generated during a general investigation into Dr. Cornu-Labat’s alleged misconduct, then this exemption would not apply. 

Finally, the Court rejected the Hospital’s argument that the confidentiality provision of Dr. Cornu-Labat’s employment contract precluded the Doctor from requesting hospital records involving members of its medical staff.  The Doctor’s identity and his employment contract were irrelevant “because the PRA states that agencies may not inquire into the identity of the requestor or the reason for the request.”  Employment contracts “cannot override the PRA.”  

Production on a "Partial or Installment Basis" Also Means Just One Production

Does a single production constitute production on an installment basis and trigger the PRA’s statute of limitations?  Divisions I and II of the Washington Court of Appeals disagree. 

In Bartz v. Department of Corrections, Division II of the Court of Appeals held that the PRA’s one-year statute of limitations runs even if the agency delivers only one production.  In other words, a single production also means “the last production… on a partial or installment basis.”  A plain reading of the statute might suggest otherwise.  “Actions under this section must be filed within one year of the agency’s claim of exemption or the last production of a record on a partial or installment basis.”  RCW 42.56.550(6). 

Division II reasoned that a literal reading would lead to an absurd result, namely: “a more lenient statute of limitations for one category of PRA requests” after the Legislature shortened the statute from five years to one in 2005. 

Yet, Division I concluded just that.  In Tobin v. Worden, 156 Wn. App. 507 (2010), Division I held that the one-year statute does not apply unless the agency claims an exemption or produces records on installment.  There, the agency did not claim an exemption and produced only a single document.  Because a single production could not be an installment, Division I concluded that the statute did not apply.  

Pace of PRA Legislation Mirrors PRA Requests

As the Legislature hits full stride, open government initiatives and reforms continue to make headlines and receive editorial ink.

The Tacoma News Tribune reports that newly sworn-in Attorney General Bob Ferguson wants to reinstate a full time open-government ombudsman in the Attorney General’s Office. The Tribune also notes his support for HB 1198, requiring training for public officials and employees on public records and open meetings.

Citing a potential Gold Bar bankruptcy stemming from public records act requests and lawsuits, public officials lobbied for HB 1128, which allows an agency to seek an injunction against requesters who seek to harass or intimidate the agency or its employees, the Everett Herald reports. The bill also allows agencies to limit employee hours spent compiling responses to PRA requests if those agencies provide several types of records online.

The Olympian offers a different perspective on HB1128. Citing the continuing “assault” on the Public Records Act, the Olympian’s editorial board finds the attempted tradeoff between agency efficiency and openness “unsatisfactory.”

Citing the Public Disclosure Commission’s role as election watchdog, the Walla Walla Union-Bulletin editorial board offered its support to Rep. Jim Moeller’s effort bolster PDC funding. HB 1005 would require annual fees from political committees, politicians and lobbyists who file with the PDC. Proponents expect about $600,000 a year in additional revenue for the agency.
 

Metadata: You [Only] Get What You Ask For

In an unpublished opinion, Division II affirmed a trial court’s grant of summary judgment against George Nervik, a 45-time Public Records Act requestor of Department of Licensing emails and attachments. The Court held that some of Mr. Nervik’s claims were time-barred by the PRA’s one-year statute of limitations and that several of his other claims were not properly preserved for appeal. However, the bulk of the opinion is devoted to Mr. Nervik’s purported request for email metadata.

Metadata associated with a public record is subject to disclosure under the PRA. But, a government agency is not required to provide metadata unless the metadata is specifically requested. Requesting emails or records in electronic format does not automatically lead to a request for metadata. Moreover, agencies have discretion in formatting records and need not provide records in electronic format. Here, Mr. Nervik requested that emails “should be in Outlook .pst format only together with all attachments....” Although .pst files presumably contain metadata, the Court held that this “mere format request” was not a specific request for metadata. In other words, requesting records in a format that contains metadata is not a request for that metadata. The Court ruled that the Department properly produced some records in hard copy for redaction and others in electronic format without metadata. Therefore, the Department was entitled to summary judgment on Mr. Nervik’s claim that it failed to disclose public records by not providing metadata.
 

PRA Inquiries into Washington State's "Shadow Governments"

Arthur West continues his efforts to provide Washington’s appellate courts with the opportunity to define the scope and breadth of the Public Records Act. Rather than keep all the fun for itself, the Supreme Court graciously shared the opportunity to decide Mr. West’s latest appeal with Division II, transferring Mr. West’s request for direct review to the lower court. Division II affirmed the trial court in an unpublished opinion, West v. Gregoire, No. 42779-6-II (Sep. 11, 2012).

Apparently interested in reviewing documents relating to the Washington State Association of Counties, Mr. West submitted a memo to the Governor with the title “RE: ATTENDANCE AT SECRET SHADOW GOVERNMENT EVEN, AKA (WSAC 2009 ANNUAL CONFERENCE).” (Emphasis in Original). The Governor’s office did not immediately recognize that the memo contained a request for public records, an error Mr. West pointed out two weeks after submitting the memo. The Governor’s office offered to provide an estimate of response time within two days, but Mr. West stated that he had a litigation deadline six days away. The Governor’s office emailed him 57 pages of responsive documents the next day, then provided an additional 299 pages of documents two weeks later.

The Governor’s office withheld, under a claim of executive privilege, a document authored by one of the Governor’s Executive Policy Advisors. Mr. West sued under the PRA. After an in-camera review, the trial court concluded that the document contained no advice to the Governor and was thus subject to disclosure regardless of whether executive privilege exists in Washington. The Governor’s office disclosed the document that day.

The trial court awarded Mr. West $25/day in statutory penalties, excluding 22 days which the trial court concluded was a reasonable period for the Governor’s office to respond. West petitioned the Supreme Court for direct review of the penalty, and the Governor’s office cross-appealed. The Supreme Court transferred the case to Division II, which affirmed on all points. The court concluded that the statutory language providing that the prevailing requester is entitled to a statutory penalty “for each day that he or she was denied the right to inspect or copy said public record” necessarily included a reasonable time period for the government to respond to a request. That is, the government does not “deny” the right to inspect a record during the time reasonably necessary to gather responsive documents.

Both parties appealed the award of a $25/day penalty. Division 2 concluded that under the list of mitigating and aggravating factors contained in the Yousoufian V case, the amount was not "manifestly unreasonable" and affirmed.

Clarity is Key: Court Confirms Fair Notice Requirement of PRA Requests

A recent case decided by Division II of the Washington State Court of Appeals confirms that agencies must receive fair notice of a request for public records. In other words, a request must have sufficient clarity to be recognizable as a request for information under the Public Records Act. The Court also determined that a union representative had adequate standing to file a public records lawsuit on behalf of a union member.

In Germeau v. Mason County, Case No. 41293-4-II, 2012 WL 621468 (Feb. 28, 2012), Richard Germeau, a representative of the Sherriff’s Office Employees Guild (“Guild”), commenced representation of Guild member Detective Sergeant Martin Borcherding, who had been involved in an off-duty domestic dispute.

Germeau was an experienced public records requestor, having made several past requests using the official Mason County Public Records Request Form. Despite his familiarity with the form, Germeau instead drafted a letter to the Sherriff’s Office seeking information and documents pertaining to any pending investigation of Borcherding. The letter did not specify that it was a public records request, and instead emphasized that Germeau, on behalf of the Guild, would be representing Borcherding during the internal investigative and discipline processes.

The Sheriff’s Office did not respond in writing and did not produce documents in response to Germeau’s letter. Several months later, after receiving records from other sources, Germeau believed his original request to the Sherriff’s Office had been ignored, and he had not received all pertinent records. Germeau then filed a complaint against the Sherriff’s Office and the County alleging violations of the PRA.

First, the Court of Appeals reversed the district court’s finding that Germeau lacked standing to bring the PRA action against the County. The Court of Appeals held that Germeau, as a representative the Guild, had a sufficient “personal stake” in the outcome of the suit to have standing on behalf of the Guild members he represents.

However, Germeau’s victory was short lived, as the Court ultimately upheld the district court’s dismissal of the lawsuit. The Court found that Germeau had failed to provide fair notice of a PRA request, and that nothing in the August letter put the County on notice that Germeau was requesting records under the PRA. Instead, the letter appeared to request documents in connection with the Sherriff’s Office’s internal investigation of Borcherding under the Guild’s collective bargaining agreement, not the PRA. Consequently, the Court of Appeals upheld summary judgment for the County and Sherriff’s Office, finding that the agencies had not violated the PRA.

This case provides several helpful takeaways for both agencies and requestors:

  • Just as an attorney may have standing to bring a PRA claim on behalf of a client, similarly a union representative or the union itself has a sufficient standing to bring a PRA claim on behalf of a union member.
  • While the fair notice rule doesn’t require a requestor to specifically cite to the PRA, the language of the request must be sufficiently clear so that the agency understands that a request for public records has been made.
  • For requestors: Clearly state that your correspondence is a request for public records. Whenever possible, use an agency’s official public records request form.
  • For agencies: Seek clarification from requestors if there is uncertainty about whether correspondence might be a request for public records.

Washington Court Ruling Encourages Installment Responses to Records Requests

In Double H, L.P. v. Washington Department of Ecology, No. 29918-0-III, 2012 WL 593213 (Feb. 23, 2012), the Washington Court of Appeals, Division III, was called upon to decide whether the trial court abused its discretion in grouping two public records requests as one request for purposes of deciding the number of days for which a penalty under RCW 42.56.550(4) would be awarded. The trial court decided that the requestor’s two requests, which sought only records related to an Ecology investigation of Double H, should be grouped as a single request for purposes of penalties. The trial court also declined to penalize Ecology for producing the requested documents (totaling about 3,000 pages) in installments, and declined to award penalties for the groups requested separately. This court affirmed, holding that these determinations were discretionary with the trial court and that the trial court had not abused its discretion.

Double H requested records related to a DOE investigation of it, in August 2009. Ecology sent the mandatory five-day letter, estimating that the responsive records would be produced the week of September 10, 2009. In fact, although production began with an installment provided on September 24, 2009, two other sets of responsive records were produced later. In January 2010, Double H renewed its request, to catch records not in existence in August 2009, and Ecology estimated that these would be produced the week of March 19. However, the first installment of responsive records was produced a month later, and the final installment was not produced until January 2011. Ecology stipulated that the penalty period was 683 days.

The court noted that the “PRA embodies two mandates in determining a penalty amount. First, a penalty is mandatory when a requesting party is improperly denied access to a public record under the PRA.” The court added, “Second, a penalty shall be awarded for each day records are wrongfully withheld.” But, as Ecology argued (and the Court agreed), “beyond these mandates, establishing the penalty amount is within the sound discretion of the trial court.”

This court relied on Yousoufian v. Office of Ron Sims, 152 Wn.2d 421, 98 P.3d 463 (2004) (sometimes referred to as “Yousoufian II”), and Sanders v. State, 169 Wn.2d 827, 864, 240 P.3d 120 (2010), for the proposition that a grouping of records for purposes of calculating the number of records for which a penalty must be assessed must be reasonable, and further the purposes of the PRA. The problem with artificially grouping records according to the dates of installment production, according to the court, is that such grouping ultimately penalizes an agency for producing records in installments. An agency liable for, e.g., $27 per day in penalties for a total failure to produce records for, e.g., 683 days in delayed production of one group of 3,000 records would pay less than an agency that produced those same 3,000 pages in 25 installments over that 683 day period. This result, the court held, would be contrary to the purposes of the PRA.
 

Are Penalties Applied Separately to Each Public Records Response? It Depends.

In Double H. L.P. v. Washington Department of Ecology (No. 29918-0-III), Division III of the Washington Court of Appeals clarifies that a court is not required to impose separate penalties on each improper public records response. Instead, a single penalty may be applied to a series of responses when they relate to the same subject matter.

The Department of Ecology received an initial records request from Double H. L.P. regarding Ecology’s investigation of illegal hazardous waster disposal on Double H’s farm. Double H. later followed up with a “refresher” request for records created after the date of the initial request. Ecology responded by producing records on nine different occasions and posting an exemption log that identified certain records withheld from production under various exemption claims.

Ecology conceded that withholding some of the documents violated Washington’s Public Records Act. However, the trial court concluded that only one group of records existed for penalty calculation purposes and that a separate penalty would not be applied to each separate production date. The Court of Appeals upheld the trial court’s reasoning and rejected Double H.’s argument that multiple production installments require multiple penalty groups (which, not surprisingly, would have substantially increased the overall penalty awarded).

The Court of Appeals applied an abuse of discretion standard and reviewed whether the trial court’s decision was manifestly unreasonable or based on untenable grounds. It expressly recognized that nothing in the PRA, and nothing in the Washington State court cases interpreting the PRA, requires trial courts to create penalty groups in a specific fashion. 

In summarizing its holding, the Court of Appeals stated that selecting a same-subject group for penalty purposes (rather than a group based upon production dates) encourages agencies not to withhold records until fully assembled and promotes early record production. While this decision does not necessarily prevent a trial court from applying a separate penalty to each record production, it does provide trial courts the flexibility to consider a public agency’s attempt to provide responses in a timely manner when records and information first become available.

Clarifying Records Request Clarifications - All Clear? Court of Appeals Rules Confused County was Reasonably Confused

Today’s Washington Court of Appeals decision in Levy v. Snohomish County stems from Inmate Percy Levy’s less-than-clear records request to the County Prosecutor’s office:

“While pending trial back in 2002… my attorney provided me with a statement made by my co-defendant Breena Johnson. I want a copy of that statement.”

Perhaps unsurprisingly, the designated public records officer sought clarification from Levy, because the records officer was neither Levy nor his attorney. Today’s decision again points out that agencies managing public records requests are allowed to seek clarification and don't need to be mind readers.

As the records officer tried to clarify and fulfill the request without heedlessly duplicating responses to a previous request that Levy had made, Levy first denied he had made a previous request. Then Levy acknowledged the previous request.

Finally, after 59 days and several rounds of confounding correspondence, Levy was in possession of the two documents he apparently had sought. For its troubles in interpreting Levy’s request and conscientious attempt to not burden an inmate with the cost of paying for records he already had, the County was rewarded with a public records act lawsuit.

Levy’s lawsuit alleged that the County’s request for clarification was unwarranted and that the 59-day “delay” was unreasonable. The Court of Appeals found that the County’s request for clarification was reasonable and that there was no delay. The County did inadvertently omit one document when it finally understood what Levy was requesting, but realized its oversight and sent out the document one day later.

Although the Court does not break new ground, the decision serves as a reminder about the need for diligence and documentation in responding to public records requests. Snohomish County was able to show the patent ridiculousness of Levy’s lawsuit by demonstrating that it promptly responded to every communication from him and was striving to understand his request. This case is another example of inmates using the Washington PRA for other than the act’s intended purpose of fostering public access to documents. Such cases caused the legislature to restrict the rights of inmates under the PRA.

Tri-City Herald Reports on Massive Document Production in Response to Request from Annexation Opponent

The ongoing controversy over a City of Pasco annexation authorized by legislation adopted by the State Legislature in 2009 (ESSB 5808), has resulted in broad requests for City public records. The requests are so expansive as to cause substantial delay in production of the public records. This is not an unusual occurrence, as the Public Records Act (PRA) is regularly used as a political tool against public agencies. This approach is completely permissible under Washington law, as a requester need not identify the purpose for the records request. Washington has regularly recognized that the often substantial cost of compliance, even in the face of an unjustified records request, is outweighed by the policy supporting public access to documents. The Legislature and courts have only responded to date with respect to prisoner's suits under the PRA. See January 20, 2011 posting on this blog.

Supreme Court Nominee: US Solicitor General's Communications Exempt under FOIA

The nomination of Solicitor General Elena Kagan to the Supreme Court prompted document requests to the Department of Justice (DOJ). The D.C. District Court recently upheld a DOJ determination that records from the office of the Solicitor General were exempt from disclosure under the Freedom of Information Act (FOIA). The records either were privileged or were not “agency records” subject to disclosure. Media Research Center v. U.S. Department of Justice and Judicial Watch v. U.S. Department of Justice, 2011 WL 4852224 (Oct. 13, 2011).

In response to FOIA requests, DOJ began an electronic search of its files encompassing the dates of Justice Kagan’s tenure as Solicitor General. The search identified 1400 pages. After review, DOJ concluded that 86 pages were responsive to the requests under FOIA.

DOJ released 45 of the 86 pages, and withheld 41 pages under two theories: first, that they were not “agency records,” and second, that they fell under the “work product privilege” (exemption 5 to FOIA). DOJ released a log (often referred to as a “Vaughn Index”) providing its reasoning for every withheld or redacted document.

Plaintiffs challenged: 1) the adequacy of the initial search; 2) the determination that the 41 pages were not “agency records;” 3) the claim of attorney work product on six redacted documents; and 4) the claim concerning the deliberative process privilege.

  1. Adequacy of the Search. The Court concluded that DOJ’s search of its paper, electronic, and email files was adequate, and that plaintiffs’ conjecture that there should be additional records was insufficient to justify a different conclusion. See, Weisberg v. Department of Justice, 705 F.2d 1344 (D.C. Cir. 1983); Iturralde v. Comptroller of the Currency, 315 F.3d 311 (D.C. Cir. 2003) (agency’s search must be reasonably calculated to uncover all relevant documents, measured by the search methods and not by the results of the search).
     
  2. Agency records. In rejecting the Plaintiffs request for the Solicitor General’s correspondence about her nomination to the Supreme Court, the D.C. Circuit Court found the correspondence “was not relied upon by the [Office of Solicitor General] in carrying out its business, but rather was used for a purely personal objective…the documents were personal, not attributable to the agency, and therefore were not “agency records.”
     
  3. Exemption 5 to FOIA, and the “Work Product Privilege.” Exemption 5 to FOIA allows an agency to withhold records that would be privileged from discovery during litigation. This exemption incorporates the work product doctrine and the deliberative process privilege. Department of the Interior v. Klamath Water Users Protective Association, 532 U.S. 1 (2001). Applying Exemption 5 and the attorney work product doctrine, the court rejected plaintiffs’ argument that a specific claim is necessary to invoke the doctrine. Instead, an objectively reasonable belief that litigation is a real possibility triggers the privilege. The Court did not reach the deliberative process question.

For reference to Washington’s PRA exemptions for attorney-client and other privileges that may give rise to exemptions from disclosure, see WA Court of Appeals Decision in Zink v. City of Mesa Has Many Public Records Act Lessons for Municipalities.
 

Hard Times for Hard Drives Redux: Washington Supreme Court Announces Decision on Need to Search Hard Drives

As we reported here on January 31, the Washington Supreme Court heard argument on the reach of the Public Records Act (PRA) in the digital age. On September 29, 2011, the Court decided this case (Neighborhood Alliance of Spokane County v. Spokane County). The Supreme Court found that Spokane County violated the PRA by not searching the hard drive of a computer that had been recently used by the person who generated a specifically requested document.

The document being sought was a seating chart of the County’s Building and Planning Department where the names of the new occupants (one of whom was the son of a County Commissioner) had allegedly been placed on the seating chart some time before the employment selection process was even completed. The date that the seating chart was first created was therefore crucial. But the County made no effort to look for the document on the hard drive of the old computer just recently used by the person who had generated the chart. The Court held that a search of the digital hard drive on the old computer was mandatory in these circumstances.

Not only had the County not searched for electronic records that were requested where those electronic records could easily have been searched, but the County later refused to answer interrogatories about its actions in the PRA lawsuit eventually brought by the Neighborhood Alliance. In perhaps the most far reaching part of its decision, the Supreme Court held that a PRA lawsuit is like any other, and the defendant agency must respond to reasonable discovery requests, including interrogatories and depositions, unless it is first able to secure a protective order from the court.

In other parts of the case, the Supreme Court held that (1) the remedial penalties of the PRA are triggered when the agency fails to disclose and produce records, and any later release of the documents only serves to stop the clock, but not eliminate, the daily penalties; (2) no causation is required to prevail in a PRA lawsuit – subsequent events and subsequent disclosure do not affect the wrongfulness of the agency’s initial failure to disclose the documents; (3) when the trial court finds that the PRA has been violated, daily penalties are mandatory, and only the amount is subject to the trial court’s discretion; (4) the fact that the requestor of documents may already have a copy of the documents does not relieve an agency of the obligation to produce those same documents in response to the request; and (5) there is always an obligation to “disclose” the existence of requested documents, even if there is an exemption from an obligation to “produce” the documents.
 

Grouping Documents and Lowering Penalties upon Reconsideration is Upheld by the Washington Court of Appeals

Division II of the Washington Court of Appeals has upheld a trial court’s decision to group documents into two categories, thereby lowering the penalties against the Washington Dept. of Labor and Industries (L&I) from over to $500,000 to approximately $30,000. Bricker v. Washington State Department of Labor & Industries, __ Wn.App. __, 2011 WL 4357760 (September 20, 2011).

Ken Bricker is a former contractor who owned a home at which he did his own electrical work. An L&I inspector issued a citation related to the work. Bricker appealed, and sent a letter to the inspector, in which the Public Records Act (PRA) was not mentioned, asking for “a copy of all permits issued and copies of inspections and correction requests by all inspectors at that residence.” The L&I inspector filed the letter, assuming that the records would be made available during the contested hearing over the citation.

Bricker then made several attempts to obtain the records, including telephone calls to L&I personnel who did not recall the calls. It turned out that there were somewhere between 3 and 16 responsive records. Bricker both overturned the citation and won the PRA trial where he was originally awarded penalties totaling over $500,000.00. But the trial court later reconsidered, and broke the documents into two groups, the original 16 records and 3 other records that were duplicates, except for signatures. The trial court awarded $90/day for the first group and $15/day for the second group, stating that the PRA was about accountability, but absent bad faith, the PRA is not meant as compensation for damages.

Bricker appealed the trial court’s reconsideration, which changed the award from a per-document per-day award to a per-group per-day award, reducing the award to just under $30,000.00 plus attorney fees. L&I cross-appealed the high-end award, claiming out that, absent bad faith and with less culpability that in a prior case in which a $45/day penalty was found appropriate, the high end range (the maximum penalty is $100 per day) was an abuse of discretion.

The Court of Appeals affirmed the trial court on both issues.. With respect to the L&I claim that the high per day penalty was error, because there was no bad faith, the Court of Appeals noted that Bricker’s request for documents was clear, the agency made no response even after Bricker followed up on his request, and the L&I inspector had received no PRA training and made no inquiries about how to handle Bricker’s request for information.

On the other hand, in response to Bricker’s appeal, the Court held that it is not an abuse of discretion for a trial court to decline to award penalties for each document per day. Pointing out that other courts, including Yousoufian, had upheld awards based on categories of related documents, this Court approved the trial court’s effort to assess different penalties for different groups of documents, to which (as a group) different Yousoufian factors applied.

Inadvertent Destruction of Records Prior to Request Not Violation of Washington Public Records Act

In early 2008, a public records request was made to the Washington Department of Natural Resources for emails of a DNR official over the prior 2 years. While over 9,200 pages of emails and attachments were produced, emails from 2006 were not available as a result of DNR’s upgrade to its email system in late 2006. DNR engaged outside consultants to search for those records. However, the records could not be recovered. In response to a claim of violation of the Washington Public Records Act (PRA), the Court of Appeals found that DNR’s “destruction” of the emails did not violate the law (August 23, 2011).

The court distinguished cases in which records were destroyed after a request had been made. See Yacobellis v. City of Bellingham, 55 Wn. App. 706 (1989). Rather, the court found that DNR had not delayed in its efforts to produce available records and that it had no responsibility to create or produce a record that was now non-existent. See Building Indus. Ass’n of Wash. v. McCarthy, 152 Wn. App. 720, 734 (2009).

The court did, however , (by a 2 to 1 vote) determine that DNR’s failure to timely acknowledge a PRA request within 5 business days constituted an automatic violation of the PRA. That DNR responded and produced records before a lawsuit was commenced was not controlling. The court remanded the matter to the trial court to consider an award of attorney fees and penalty under former RCW 42.56.550(4).
 

County Not Immune from Post-Judgment Interest on Washington Public Records Act Judgment

A recent Court of Appeals decision may mark the end of a decade-long saga involving a Washington county’s violation of the Washington Public Records Act (PRA). Armen Yousoufian had found earlier success with the courts and had been awarded $371,340 for King County’s failure to comply with the PRA. See Yousoufian v. Office of Ron Sims, et al., 168 Wn.2d 444, 229 P.3d 735 (2010). The most recent decision in the long line of Yousoufian decisions found that the County was responsible for post-judgment interest, retroactive to the date of the initial judgment against the County in August 2005.

The decision by the Court of Appeals is not published, and therefore is not binding precedent. However, it does provide legal framework for similar claims arising out of a PRA judgment. In addition, the Court awarded further attorney fees to Yousoufian arising from his successful appeal.
 

Two Ways a Public Records Act Requestor Can Become Prevailing Party

A Washington Court of Appeals decision demonstrates there are two ways a public records act requestor can become a “prevailing party” under the Washington Public Records Act, chapter 42.56 RCW (“PRA”). Pierce v. City of Des Moines (August 8, 2011). If the agency wrongfully withholds records and the lawsuit is reasonably necessary to obtain nonexempt records, the requester is a “prevailing party.” But as Pierce holds, under RCW 42.56.550(4), an agency can also be liable for unreasonably delaying production of records.

In Pierce, a prisoner sought certain records from the city. Des Moines did not respond with a five-day letter as required by RCW 42.56.520, but responded “more than five business days” later. Des Moines disclosed the records prior to the prisoner lawsuit but “several weeks” after the prisoner had submitted a “Tort Claim” for damages. The “Tort Claim” was submitted several months after the prisoner’s request was submitted; the prisoner claimed that his letters and calls were ignored in that intervening period.

Several months after the records were disclosed, Pierce filed a lawsuit against Des Moines. The complaint alleged that Des Moines was liable “for failing to turn over public requested records in a reasonable amount of time.” On motion for summary judgment, the city successfully argued to the trial court that Pierce could not be a “prevailing party” entitled to daily penalties and attorney’s fees under RCW 42.56.550, because his lawsuit was not reasonably necessary to force disclosure of the records. In reversing the trial court, the Court of Appeals stated as a matter of statutory construction there is a second way in which a requestor can be deemed to be a “prevailing party.” RCW 42.56.550(4) provides, in pertinent part:

(4) Any person who prevails against an agency in any action in the courts seeking the right to inspect or copy any public record or the right to receive a response to a public record request within a reasonable amount of time shall be awarded all costs, including reasonable attorney fees, incurred in connection with such legal action. In addition, it shall be within the discretion of the court to award such person an amount not to exceed one hundred dollars for each day that he or she was denied the right to inspect or copy said public record.

(Emphasis supplied.)

Prior published decisions and the model PRA rules issued by the Attorney General had not dealt directly with these points. For example, WAC 44-14-08004(7) states that “A requestor is the ‘prevailing‘ party when he or she obtains a judgment in his or her favor, the suit was reasonably necessary to obtain the record, or a wrongfully withheld record was provided for another reason.” The rule is not, of course, incorrect, but it does not specify that a requestor can “prevail” by showing unreasonable delay in records production.

An earlier case, Daines v. Spokane County, 111 Wn.App. 342, 44 P.3d 909 (2002), held that a requestor who already has records is not a “prevailing party” in an action to require disclosure of those records. But no prior published decision dealt with the question whether an unreasonable delay prior to production of records is actionable and can give rise to statutory penalties and attorney’s fees. See, WA Court of Appeals Decision in Zink v. City of Mesa Has Many Public Records Act Lessons for Municipalities, posted on this blog on July 22, 2011.
 

"By Anonymous" Does Not Work Under Washington Law For Inmates Objecting to a Request for an Injunction Against Abusive Use of The Public Records Act

In the context of a public agency seeking an injunction to prohibit repeated requests for public records by an inmate of a state prison, a court is permitted to consider the identity of a person making a Public Records Act (PRA) request.

This is the heart of the opinion issued on June 21, 2011 by the Court of Appeals in Franklin County Sheriff’s Office v. Parmelee. The Court rejected the claim by an inmate of the Washington State Penitentiary in Walla Walla that his identity as an inmate could not be considered by the trial court in ruling on a motion to enjoin him from making any further PRA requests.

The Court of Appeals pointed out that when the legislature passed an amendment to the PRA (RCW 42.56.565) allowing a public agency to seek an injunction against inmates’ abusive use of the PRA process, the identity of the requestor obviously became a core issue in that process. Therefore, the trial court’s finding that it was not permitted to consider the identity of the requestor – in a situation where an injunction is sought against an inmate – was in error.

Parmelee follows previous appellate rulings in Washington, where more restrictive PRA requirements have been applied to prisoners. See, for example, our January 20, 2011 blog posting: “Prisoners Have Public Records Rights – But Not All of Them.”
 

Washington Property Tax Assessment Audit Data Not Subject to Public Disclosure

The Washington State Department of Revenue (DOR) uses a “ratio audit” to evaluate the property value of real and personal property in each of Washington’s 39 counties. The valuation of property in each of the counties is then compared against a total valuation of property in the state. The ratio audits are used by DOR to equalize yearly property taxes, and also to assist in calculating each county’s state school levy.

A former King County assessor and his daughter separately requested the disclosure of DOR’s tax ratio audits from King County. The tax ratio audit data would disclose tax information about the private properties subject to audit. King County and DOR rejected the requests under the state’s Public Records Act, chapter 42.56 RCW (PRA) Two separate actions to compel disclosure followed. The trial court dismissed each of the actions. The Court of Appeals reached the merits of the cases, notwithstanding that both of the appeals from the trial court actions were procedurally defective. The Court of Appeals affirmed the dismissal of the PRA suits.
Harley H. Hoppe & Associates, App/cross-res. v. King County, Res/cross-app (May 23, 2011).

One of the listed exemptions under the PRA is for “information required of any taxpayer in connection with the assessment or collection of any tax.” RCW 42.56.230(3). The court agreed with the County and with DOR that the specific exemption applied to the requested records relating to individual property’s personal and real property valuations. Publishing such proprietary business information obtained by the DOR in the course of its audit would disadvantage the audited taxpayer. The Court also relied on the reference in RCW 42.56.230(3) to RCW 84.08.210(2) that broadly states that “tax information is confidential and privileged, and except as authorized by this section, neither [DOR] nor any other person may disclose tax information.” The Court of Appeals found that there were no exceptions, applicable to the case, to the general prohibition on disclosure of tax information.
 

Yes, We Have No Documents: WA Court of Appeals Affirms Denial of Prisoner's PRA Claims

In another of a series of prisoner Public Records Act (PRA) requests in the State of Washington, a Court of Appeals has affirmed the trial court’s denial of a prisoner’s claims that (1) he should be able to review documents to see if there are none, and (2) he should be able to have the medical records of his victim. Simpson v. Okanogan County (unpublished opinion). (See previous 2011 blogs relating to prisoner related public records requests posted on January 20 and January 28.)

In his request from prison, Simpson asked for the records on his case from the prosecutor’s office, including the medical records of his victim. In addition, he asked for the personnel file of the elected Okanogan County prosecuting attorney; and, for the records of any insurance obtained by the County for the prosecutor. In response, the County provided Simpson with his criminal file. But, the County withheld the medical records of his victim; stated that the County had no personnel file for the elected prosecutor; and, that it had no documents relating to insurance for the prosecutor. When Simpson sued to challenge both the withholding of medical records and the denial of documents, the trial court granted summary judgment to the County, and the Court of Appeals affirmed.

Although this is an unpublished opinion, the Simpson decision cites useful Washington precedent related to the two issues noted above:

(1) A declaration that, “Yes, we have no documents,” is conclusive.

“An affidavit stating that a record does not exist is dispositive on a PRA claim; there is no right to personally inspect records to confirm that no record exists. Sperr v. City of Spokane, 123 Wn. App. 132, 136-137, 96 P.3d 1012 (2004).”

(2) Health care records are generally exempt from disclosure under the PRA.

“The exemption for patient health care records is assessed in accordance with the standards of chapter 70.02 RCW, which is incorporated into the PRA by RCW 42.56.360(2). Prison Legal News, Inc. v. Dep’t of Corrections, 154 Wn.2d 628, 644, 115 P.3d 316 (2005). In turn, RCW 70.02.020(1) generally prohibits disclosure of health care information without the patient’s consent. In turn ‘health care information’ is defined in relevant part by RCW 70.02.010(7) as ‘any information . . . that identifies or can readily be associated with the identity of a patient.’ . . . Mr. Simpson knew very well whose information he was requesting – the only health care information that was relevant to his criminal case. Blacking out his victim’s name would not disassociate the records from a particular known person.”
 

Tennessee Supreme Court: Public University Faculty Non-Profit Corporation Is Not An "Agency" Under Public Records Act

A group of internists at the University of Tennessee College of Medicine (UTCOM) organized as a tax-exempt, non-profit corporation, identified as the Internal Medicine Educational Foundation (IMEF). The purpose of IMEF is to "provide educational programs, research and support services for the internal medicine residency program" at UTCOM. When the IMEF refused plaintiff's request for records, plaintiff sued under the Tennessee Public Records Act. Like Washington State, Tennessee applies its PRA to those agencies described by the law and to entities that are the "functional equivalent of a government agency." Functional equivalency is determined by certain factors:

(1) whether the entity performs a governmental function;

(2) the extent of government funding;

(3) the extent of government control over the entity; and

(4) whether the entity was created by legislative act.

Those factors are then applied under a "totality of the circumstances" test to determine if the entity is the functional equivalent of an agency. Applying the factors, the Tennessee Supreme Court on February 28, 2011 found that IMEF was not the functional equivalent of an agency. As a result, IMEF was not subject to that state's PRA.

Washington's Public Records Act, at Chapter 42.56 RCW, similarly may be applied to an entity when found to be the functional equivalent of an agency. See Telford v. Thurston County Board of Commissioners, 95 Wash.App. 149, 974 P.2d 886 (1999). In Telford, the Court of Appeals held that while the Washington State Association of Counties (WSAC) and the Washington Association of County Officials (WACO) were not agencies as such, they were the “functional equivalent” of agencies and therefore subject to the campaign finance provisions of the Washington Public Disclosure Act. The court in Telford did not address the separate provisions of the Public Disclosure Act relating to public records (now, the Washington Public Records Act). And, the decision did not address other entities similar to WSAC and WACO.

In 2002, the Washington Attorney General issued a formal opinion in response to an inquiry regarding the Association of Washington Cities (AWC) and other organizations. See AGO 2002 No. 2 (April 10, 2002). In that formal Opinion, the Attorney General examined whether entities whose membership includes public agencies were separately subject to the Public Records Act. The opinion examined the Telford analysis (factors similar to those applied by the Tennessee Court), but concluded that any application of the statute to “AWC in a public records context must await the development of an actual factual situation to which the principles set forth in the statute, as interpreted in Telford, might be applied.”

Subsequent Washington cases have reached divergent results, based primarily on the extent of an entity's government funding and governmental authority. For example, in Spokane Research & Defense Fund v. West Central Community Dev. Ass’n, 133 Wn. App. 602 (2006), the court found that a contract vendor in a city park was not the functional equivalent of a public agency. But, in Clarke v. Tri-Cities Animal Care and Control Shelter, 144 Wn. App. 185 (2008), the court found a non-profit entity providing enforcement of animal control laws under contract with city and county governments was the functional equivalent of an agency.
 

Discovery in Public Records Act Cases: Yes, But No

On March 29, 2011, Division II of the Washington Court of Appeals held that a city is entitled to conduct discovery in a case the city initiated against a records requestor to affirm the City’s interpretation of the Public Records Act (PRA). But the court found the city’s interrogatories about the requestor’s past litigation history were improper. City of Lakewood v. Koenig.

Koenig, a regular requestor under the Washington Public Records Act, had requested documents from the City of Lakewood related to alleged wrongdoing by three police officers. The City provided information but redacted driver’s license numbers of officers, victims and eyewitnesses. When Koenig did not respond to a request from the City asking if he felt the documents provided were adequate, the City started a lawsuit under RCW 42.56.540 to confirm the validity of the City’s redactions.

When Koenig was served with interrogatories and requests for production, he resisted any questions relating to his past litigation history. He argued that those discovery requests were improper as not allowed by the law. Additionally, the City had no discovery rights in a PRA case the City itself had initiated, because the identity or background or any other information about a requestor has no bearing on document disclosure issues. The Court, however, affirmed that the discovery process is available to the City in this, as in any other case (unless an exception exists under statute or court rule). Since the PRA is not listed as a proceeding barred from discovery under court rule or statute, the City was entitled to conduct otherwise proper discovery.

But, the Court ruled, the City is not entitled to look into the litigation history of Koenig. The City asserted that Koenig was a well-known PRA requester and had a history of waiting until the last day before the statute of limitations ran before filing suit as a strategy to increase eventual penalties. The Court, however, found that the City’s perceptions had no bearing on the nature of the documents or on the ultimate penalties for non-disclosure. In fact, the Court explicitly held that waiting to file a lawsuit until the last day of the statute of limitations for PRA requests was within the right of any litigant, including Mr. Koenig, whatever that litigant’s objectives. On the other hand, the Court did acknowledge that there could be legitimate issues in discovery regarding economic losses of the requestor that might be caused by delay or by incomplete responses of the public agency, as those losses could later affect the amount of penalties for non-disclosure.

Because the City won on the issue of discovery, and Koenig won on the issue of specific interrogatories, the Court ruled that neither party was entitled to fees, especially as the underlying issue of redacting the driver’s license numbers had yet to be decided. One judge dissented, but only on the issue of whether Koenig should have received attorney’s fees under CR 26(c) for having successfully blocked a part of the City’s discovery request.
 

Change? -- Two Halves of the FOIA Glass

Has the Obama Administration effected real change in FOIA responsiveness? A recent Associated Press article, claims that the federal Freedom of Information Act is unwieldy and difficult, and that only the most patient and persistent requesters actually obtain the sought-for information. The article is critical of agencies’ efforts in implementing President Obama’s promise to make government more open and release more information rapidly.

During an event sponsored for Sunshine Week, March 13-19, reported in the AP article, Associate Attorney General Tom Perrelli is quoted as stating that more records are going out unredacted than ever before. “Where we once might have looked at a document, noticed a piece that could be released, and redacted the rest, we’re now more often determining that we can release the whole thing,” Perrelli is quoted as saying. However, a witness before the Senate Judiciary Committee, Thomas Fitton of Judicial Watch, stated that the conservative watchdog group has “filed 44 lawsuits to force the Obama administration to comply with the law.”

But perhaps there has been a change in how the Administration views the FOIA – now that it is on the inside. In a blog posted March 16 to celebrate Sunshine Week, Steve Croley, a Special Assistant to the President for Justice and Regulatory Policy, points out that it is not in the public’s interests to release every document: “Our government also owes its citizens, among other things, protection of their personal privacy and business confidentiality, effective law enforcement, and a strong national defense.”

In Washington State on the other hand, the courts continue to liberally construe the state’s Public Records Act, and continue to extended its reach. See, for example, the expansive interpretation of the Public Records Act to include records contained on a city council member’s home computer discussed in our blog post of December 22, 2010, “City of Monroe, Washington Pays $157,394 to Settle Public Records Act Case.”
 

Pennsylvania County Must Disclose Contractor's Employment Records - Even Though County Doesn't Have Them

Allegheny County, Pennsylvania contracts with hundreds of service providers. One of those contracts is with A Second Chance, Inc. (ASCI), where ASCI evaluates an individual’s qualifications to provide foster care to dependent children. A Pittsburgh television station requested that the County provide the “names, birth dates and hire dates of all employees” of ASCI who provide services to the County. Not surprisingly, the County said that those records were not available to the County and they rejected the television station’s request under the Pennsylvania Right-To-Know-Law (RTKL). Without explaining how the County should get the records, the Commonwealth Court of Pennsylvania (a court whose jurisdiction is generally limited to legal matters involving State and local governments and regulatory agencies) held that the employment records of ASCI were “public records” and accessible under the RTKL. It is unclear what process would be used under the RTKL by a local government to recover such records from a contractor.

In Washington, a contracting agency that provides governmental services is generally considered an agency and subject to the Washington Public Records Act. Clarke v. Tri-Cities Animal Care & Control Shelter, 144 Wn. App. 185 (2008). In the most common situation, the request would be made directly to the contracting agency (in Pennsylvania, ASCI). But in the event a request is not made directly to the contracting agency, but instead to the local government, the local government must either recover the documents from the contractor or maintain a separate court action to protect the local government from liability under the Public Records Act. See, e.g., City of Federal Way v. Koenig, 167 Wn.2d 341 (2009), discussed in the October 23, 2009 posting on this site: “WA Supreme Court Re-Affirms that Public Records Act Does Not Apply to the Judiciary.”

In Washington, as in Pennsylvania, the fact that an agency subject to the Washington Public Records Act does not possess a document does not necessarily preclude agency responsibility for producing a public record. See Concerned Ratepayers v. PUD No. 1, 138 Wn.2d 950 (1999) (design specifications for power plant prepared by PUD’s contractor, but not in possession of PUD, required to be disclosed).
 

U.S. Supreme Court Upholds Release of Petition Signatures Under Washington's PRA

In an 8-1 decision, the Supreme Court upheld the Ninth Circuit’s dismissal of a facial challenge to the release of signatures on an initiative petition to overturn Washington’s “Everything but Marriage Act.” Doe v. Reed 561 U.S. ____ (June 24, 2010)

Chief Justice Roberts wrote the majority opinion in which five other justices joined and in which two other justices concurred. Justice Thomas dissented. 

Roberts pointed out that “the PRA is not a prohibition on speech, but instead a disclosure requirement. ‘[D]isclosure requirements may burden the ability to speak, but they . . . do not prevent anyone from speaking.’” Doe v. Reed Slip opinion at 7. But Roberts also pointed out that the Court’s decision dealt only with the facial challenge to the release, not with an “as applied” standard related to this particular petition, which could still be asserted by the plaintiffs in the District Court.

Justice Scalia, with his characteristic reference to history, concurred with the judgment and wrote to point out that the signers of the petition were engaging in a legislative act and that legislative actions in the United States were consistently considered to be actions taken in public. Even voting by the public was traditionally a public act, and secret ballot voting had only come to be generally accepted in the United States in the 1890s when most states adopted the Australian model of voting by secret ballot. Scalia noted that there was no constitutional basis for saying that a state could not decide to keep the identity of petition signers secret, but “It may be a bad idea to keep petition signatures secret. . . . Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed.” Scalia, concurrence at 10.

Helping Hand? Make it a Handshake First to Ensure a Summary Report Fulfills Pending Document Requests

A number of municipalities have considered the issue, under the Washington Public Record Act, Chapter 42.56 RCW, whether a public agency may create a new, summary of requested document(s) instead of providing the underlying documents actually requested. Apparently as a result of advice delivered at a recent seminar, some agencies believe they have the unilateral option to substitute a summary report instead of the requested source documents. 

But without an advance agreement or understanding (preferably confirmed in letter or other writing) with the requestor to substitute a summary report, the agency may end up being in violation of the PRA and subject to penalties.  The offer to create a summary (e.g., a compilation of financial information in contrast to the underlying records) may save the agency time and be much more helpful to the requestor.  However, creating a new document does not respond to a request for existing records.  Therefore, the better practice is to obtain the agreement of the requestor – in advance – that the summary report created in response to the request will fulfill that pending document request.

Note further, an agency has no obligation under the PRA to provide information or to produce new documents.  The PRA only requires the production for inspection and copying (if copies requested) of existing documents.  See, Bonamy v. City of Seattle, 92 Wn. App. 403, 409 (1998); Smith v. Okanogan County, 100 Wn. App. 7 (2000).

Court of Appeals Declines to Recognize Tort Cause of Action for Damages for Negligent Disclosure of Unsubstantiated Allegations of Misconduct

In Corey v. Pierce County, 2010 WL 255956 (Court of Appeals, Div. 1 Jan. 25, 2010), the Court of Appeals reversed a trial court order allowing a claim for damages for negligent release of unsubstantiated allegations of misconduct by a deputy prosecutor. The former deputy prosecutor alleged that disclosure of allegations of misconduct violated her right to privacy. The court held that protection against disclosure by an agency subject to the public records laws must be based upon the Public Records Act (PRA), RCW 42.56. The PRA provides for an action to order publication of information that would be offensive to a reasonable person and not of legitimate concern to the public. RCW 42.56.050; RCW 42.56.230(2). The PRA provides for injunctive relief to prevent this disclosure. RCW 42.56.540. The PRA does not, however, provide a cause of action for damages. The court declined to recognize a common law right of action.

Documents Prepared by Private Investigator for City Exempt from Disclosure

Last month, the Supreme Court of Nebraska addressed a public records request for documents prepared by a private investigator at the direction of the mayor of the City of Kimball, Nebraska. Evertson v. City of Kimball, No. S-08-524 (Neb. July 2, 2009). The Court found that the documents were public records, but that they were exempt from disclosure on the basis that they were prepared pursuant to an investigation into a possible violation of the law.

The mayor, after receiving complaints alleging that City police officers were engaged in racial profiling, hired a private investigator to look into the allegations. Most of the complaints focused on one officer. After concluding the investigation, the private investigator provided a verbal report to the mayor and the city attorney, confirming the allegations made about the officer. The verbal report resulted in the City’s termination of the officer.

The citizens who had made the original complaint understood from conversations with the private investigator that a report had been prepared, and requested a copy from the City. The City responded that no report existed. The citizens filed an action to compel the City to disclose the investigative report. The City refused on the basis that it had not requested or paid for a written report; and, the information received by the City was verbal.  As a result, the City claimed that none of the investigator’s investigative documents were public records. The City also claimed that the documents fell within certain exemptions of the Nebraska public records statute.

The Court rejected the City’s argument that because the City did not pay for or request a copy of the materials the investigative documents were not public records. The Court held that “documents or records that a public body is entitled to possess – regardless of whether the public body takes possession” are clearly public records. See in this regard the Washington Supreme Court’s analysis of a similar issue in Concerned Ratepayers Ass’n v. Public Utility District No. 1 of Clark County, 138 Wn.2d 950 (1999). In determining that the City was entitled to the possession of the investigative documents, the Court found that the mayor had delegated authority to the private investigator to investigate allegations of wrongdoing and that the investigator created the documents under this delegated authority. Accordingly, the documents were public records.

Even though it found the investigative documents were public records, the Court agreed with the City that the requested materials were exempt from disclosure on the basis that they were prepared pursuant to an investigation into a possible violation of the law (a recognized exemption under Nebraska’s public records statute). For Washington State’s similar exemption see RCW 42.56.240(1). The Nebraska Court found that the investigation concentrated on racial profiling, which, if proved, would constitute a violation of law. The mayor’s purpose in initiating the investigation was to enforce the law, and the requested documents were exempt from disclosure.

For a discussion regarding the treatment of investigative materials under Washington State’s Public Records Act, see Foster Pepper's news alert regarding Soter v. Cowles Publishing Co., 162 Wn.2d 716 (2006).

 

City of Prosser Settles PRA Suit for $175,000

The City of Prosser provides the latest example of how the Public Records Act can be very profitable for some.  The City has agreed to pay a requester $175,000 to settle a PRA lawsuit.  As recorded by theYakima Herald, the requester caught the City up in 11 mistakes after making 213 requests.  The PRA requires strict compliance and puts no limits on the number of requests a person can make at no cost to the requester.  

Taxpayers, of course, will pay the tab.  And this may not be the end of it -- the requester has already warned "They've got to be fully prepared to go the next round."