The Washington Court of Appeals declined to decide what it called an “interesting and important issue” regarding an agency’s obligation under the Washington Public Records Act, Chapter 42.56 RCW (PRA), to obtain records from a third party in response to a public records request. Because the record and briefing on appeal left “unanswered factual questions,” the court vacated the trial court’s order granting summary judgment in favor of the Washington Department of Corrections (DOC).

In Baker v. Department of Corrections, No. 34967-5-III (Wash. App. June 29, 2017), a DOC inmate requested copies of negotiable financial instruments deposited by DOC into his inmate trust subaccount. With the assistance of Bank of America (BOA), DOC manages this internal trust accounting system to assist with inmate finances, such as an inmate’s court-imposed financial obligations. DOC scans the front and back of negotiable instruments (e.g., checks or money orders) with BOA’s proprietary software and transmits the digital images to BOA. The digital images are not stored on DOC’s system. DOC then destroys the paper copies of the negotiable instruments after a certain period of time.

Continue Reading Documents Held by Third-Party Vendor: An “Interesting and Important” Washington Public Records Act Issue Left Unresolved

Are Your Policies and Practices Up-To-Date?

On July 23, 2017, recent legislation on public records will take effect, impacting local governments across the state. Engrossed Substitute House Bill 1594 and Engrossed House Bill 1595 make a number of changes to the Public Records Act, Chapter 42.56 RCW (“PRA”), and Washington’s laws regarding preservation and destruction of public records, Chapter 40.14 RCW. In many cases, preparing for these changes will require revisions to agency policies on public records and updates to agency practices in processing requests.  Below are some highlights of the new legislation.

Charging for Electronic Records

Agencies will now be authorized to charge for the cost of producing electronic records, including the costs of delivery, the physical media device provided to the requester, and the costs of electronic file transfer or cloud-based data storage. Default fees are $0.10 per page for scanning records; $0.05 for every four files delivered to the requester electronically; and $0.10 per gigabyte for electronically transmitted records. Alternatively, an agency may charge a flat fee of up to $2.00 for the entire request as long as the agency reasonably estimates the cost will equal or exceed that amount.

Continue Reading New Public Records Act Legislation Taking Effect On July 23, 2017

In its second decision related to the Port of Vancouver’s lease of property for a new rail terminal facility to export petroleum products, 1 the Washington Supreme Court held that the Port appears to have violated the state’s Open Public Meetings Act, ch. 42.30 RCW (OPMA), in its discussion of the lease during five executive sessions held in 2013.

The case centers on RCW 42.30.110(1)(c), which permits public agencies to meet in executive session to “consider the minimum price at which real estate will be offered for sale or lease when public knowledge regarding such consideration would cause a likelihood of decreased price.” After considering the plain language of the statute, its legislative history, and the practical impacts of a narrow interpretation, the Court unanimously adopted a narrow reading of the statute:

Continue Reading Washington Supreme Court Holds That Executive Sessions On Real Estate Sales And Leases Must Be Focused On Minimum Price

By Jake Thomas from The Columbian

A Superior Court judge ruled Friday that Clark County violated the state’s public records act and must pay $15,750 in penalties for mishandling a dispute with former Councilor David Madore over the release of messages from his private cellphone.

The ruling from Judge Daniel Stahnke stems from a lawsuit filed last year by Community Planning Director Oliver Orjiako that alleged that the county didn’t adequately respond to his public records request for texts from Madore’s cellphone related to county business.

The lawsuit, which was related to harassment and whistleblower complaints Orjiako filed against Madore, cited Nissen v. Pierce County, a 2015 state Supreme Court decision that determined that communications generated on elected officials’ personal devices are public records if they pertain to public business.

Continue Reading What Happens When A County Elected Official Does Not Produce Records? Washington State Court Finds County Liable For Official’s Actions

On May 16, 2017, Washington Governor Jay Inslee signed two public records bills passed by the legislature in April, Engrossed Substitute House Bill 1594 and Engrossed House Bill 1595.

EHB 1595 addresses the costs associated with responding to requests made under the Washington Public Records Act, Chapter 42.56 RCW (“PRA”).

First, the bill permits agencies to charge for the cost of producing electronic documents, including costs of transmitting electronic records, the physical media device provided to the requester, and the costs of electronic file transfer or cloud-based data storage. Agencies may calculate their own actual costs, or charge default amounts set by the bill if making those calculations would be unduly burdensome. The bill’s default amounts are ten cents per page for scanning records; five cents for every four files delivered to the requester electronically; ten cents per gigabyte for electronically transmitted records; or a flat fee of up to two dollars as long as the agency reasonably estimates the cost will equal or exceed that amount.

Continue Reading Governor Signs Two Bills Amending Washington’s Public Records Act

A Washington Court of Appeals held that the Public Employees’ Collective Bargaining Act, chapter 41.56 RCW (PECBA), is not an “other statute” exempting records from disclosure under the Public Records Act, chapter 42.56 RCW (PRA), because the PECBA does not “expressly prohibit or exempt the release of specific records or information.” SEIU 775 v. Freedom Found., No. 48881-7-II (Apr. 25, 2017). This case represents the latest in a string of PRA disputes between local chapters of SEIU and the Freedom Foundation. In two opinions issued in 2016 (see here and here), the court addressed two separate disputes over the “commercial purposes” exemption of the PRA, RCW 42.56.070(9). SEIU is the union representing the individual workers who deliver personal care services to functionally disabled persons.

This latest lawsuit arose out of the Freedom Foundation’s request for Department of Social and Health Services (DSHS) records regarding the times and locations of trainings and meetings for the workers. The meetings were held at state facilities and not open to the public; and, DSHS provided time for SEIU to meet with the workers at these meetings. After receiving notice of the Freedom Foundation’s request from DSHS, SEIU sought to enjoin release of the records, concerned that the Freedom Foundation intended to show up at these meetings to discourage the workers from participating in the union.

Continue Reading Washington Court Holds Public Employees’ Collective Bargaining Act Does Not Exempt Information from Public Disclosure

The Application of Open Records Laws to Publicly Funded Science” by Lauren Kurtz, Natural Resources & Environment, American Bar Association Section of Environmental, Energy, and Resources, Spring 2017

The referenced article discusses the potential exemption from public disclosure of scientific research. Included is discussion of the well-known Washington Supreme Court decision in Progressive Animal Welfare Society v. University of Washington, 125 Wn.2d 243 (1994) (addressing internal, peer-review correspondence). See also, Servais v. Port of Bellingham, 127 Wn.2d 820 (1995) (explaining application of “research data” exemption in Washington’s Public Records Act).

Everett Fighting Inmate’s Request For Bikini Barista Videos

By The Associated Press from Tri-City Herald [Washington]

The city of Everett is suing to block a prison inmate’s request for copies of surveillance videos of bikini baristas.

The Daily Herald reports the city filed a lawsuit in Snohomish County Superior Court last week seeking to prevent Jamie Wallin from obtaining videos under the state’s public records act.

In court filings, Everett attorneys say the court shouldn’t “feed this repeat sex offender’s perversions” by giving him videos featuring young women stripping and engaging in sexual conduct.

Continue Reading Will Bikini Barista Videos Be Bared Under Public Records Act?

By John Gillie from The News Tribune

A three-year fight over public access to government-related emails stored in a former Puyallup city councilman’s private email account might be appealed to the U.S. Supreme Court.

Puyallup City Manager Kevin Yamamoto told the Puyallup City Council late Tuesday that the case, which the city has lost in two separate forums, involves a major constitutional question and should be resolved by the nation’s highest court.

Arthur West, an Olympia open-government advocate and plaintiff in the case, told the council that he too wants to see the city appeal the state courts’ decision.

“I think you guys should go to the Supreme Court, not because you have any chance — you have like a 2 percent chance of getting review accepted. The longer you delay this and the more unreasonably you fight, the worse it’s going to be for you,” he said.

Continue Reading Both Sides in Puyallup Email Records Case Want to Take Fight to U.S. Supreme Court

The City of Seattle owns, and for many years operated, the Woodland Park Zoo. Acting under statutory authorization, the City contracted with the Woodland Park Zoo Society, a privately formed not-for-profit corporation to manage and operate the Zoo. Following the lead of earlier decisions of the Washington Court of Appeals and those of other states’ courts, the Washington Supreme Court confirmed the application of a four-part balancing test to determine whether an entity is the “functional equivalent” of an agency and therefore subject to the state’s Sunshine Laws. Fortgang v. Woodland Park Zoo, No. 92846-1 (Jan. 12, 2017). The four factors (known in Washington as the “Telford test”) are:

  1. whether the entity performs a government function;
  2. the extent to which the government funds the entity’s activities;
  3. the extent of government involvement in the entity’s activities; and
  4. whether the entity was created by the government.

The Zoo Society operates the Woodland Park Zoo under an operations and management contract with the City of Seattle. The case arose from the Zoo Society’s refusal to provide documents to a requester seeking information about the Zoo’s former elephant exhibit. The Zoo Society denied that it was an agency subject to the state’s Public Records Act (PRA), and the requester brought suit. Of the four Telford factors, the Court found only the second to be inconclusive. Under the Telford analysis, the Court held that the Zoo Society is not the functional equivalent of a government agency.

Continue Reading Washington Supreme Court Holds Nonprofit Zoo Operator Not a Public Agency for Public Records Act Compliance