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

By Scott North from Herald Net

EVERETT — It looks as if an Olympia man could get a check for $45,000 from the city of Everett, along with copies of police surveillance videos of bikini baristas behaving badly.

The Everett City Council on Wednesday is scheduled to consider a settlement that city attorneys negotiated with prolific public records requester Arthur West.

The deal would bring an end to litigation over West’s 2014 demand for the barista videos. It also would memorialize his offer to not publish any of them on the Internet unless they contain images of public officials engaged in misconduct.

“I’m very encouraged that the city and I could come to a reasonable arrangement that would guarantee that the public interest would be served while not publishing all of the videos online,” West said. “It was never my intention to publish the videos of the baristas online.”

The record also is clear that West has for months quietly been seeking a cash payout in the case. He retained an attorney last summer who repeatedly demanded $150,000 or more to make the controversy go away.

Continue Reading Bikini-Barista Video Disclosure Deal Would Cost Everett $45K

Kevin Anderson, a noncustodial parent, sought child support records from the Department of Social and Health Services, Division of Child Support (DCS). Dissatisfied with DCS’s response partially denying his request, he sued under the Washington Public Records Act, chapter 42.56 RCW (PRA). On November 15, 2016, a Washington Court of Appeals rejected Anderson’s claims.

Child support records may be subject to public disclosure, but foremost the records are “private and confidential.” RCW 26.23.120(1). Records may only be disclosed “under appropriate circumstances” as authorized in the statute. RCW 26.23.120(2). Here, DCS provided records and information about Anderson’s own child support case, but redacted information about the mother and child. The Court held that DCS’s disclosures to Anderson, with redactions, were appropriate. The law limiting disclosure of child support records was an “other statute” under the PRA and therefore a proper basis for the redactions. The Court also referred to the Legislature’s direction that juvenile justice records “shall be confidential and shall be released only” under specific statutory authority. See RCW 13.50.100(2).

The Court further held that emails between the DCS support enforcement officer and the prosecuting attorney’s office were protected as attorney-client communications, and were properly withheld from disclosure. The case is Anderson v. Department of Social and Health Services.

The Washington State Attorney General’s Office has updated its online Open Government Resource Manual, available on the Attorney General’s Open Government web page here. The 2016 edition updates the 2015 manual and includes:

  • A new table of contents
  • Information about several 2016 statutes and court decisions

The Open Government Resource Manual describes the state’s Public Records Act and Open Public Meetings Act and includes summaries of and links to relevant statutes, court decisions, formal Attorney General Opinions, Public Records Act Model Rules and other materials.

The Washington Supreme Court has held that a one-year statute of limitations applies when an agency responds that it does not have records responsive to a public records act request. But, the Court also acknowledged that “equitable tolling” could apply under appropriate facts. Belenski v. Jefferson County, No. 92161-0 (September 1, 2016). Belenski sued Jefferson County more than two years after the county responded that it had no records responsive to Belenski’s request for the county’s Internet access logs. An intermediate Court of Appeals dismissed Belenski’s Public Records Act (“PRA”) claim as time-barred under the state’s two-year “catch-all” statute of limitations in RCW 4.16.130; but did not decide whether the PRA’s shorter, one-year statute of limitations in RCW 42.56.550(6) would apply. On subsequent review, the Supreme Court concluded that the PRA’s one-year statute of limitations applied.

In its ruling, the Supreme Court observed that a tension had developed in the appellate divisions over the appropriate starting point for the statute of limitations when an agency’s response does not fall strictly within the two types of responses listed in RCW 42.56.550(6) (an agency’s claim of exemption or the last production of records on an installment basis). Read more here. The Court rejected a narrow reading of the statute:

Continue Reading Washington Supreme Court Clarifies Statute of Limitations Under State Public Records Act, Holds Equitable Tolling Available

A prisoner at the Washington State Coyote Ridge Corrections Center requested a document that the state could not find. The prisoner sued. A Washington appellate court on August 18, 2016 ruled that the state’s Public Records Act (PRA) did not subject a government to liability for lost records – or, even impose a burden to prove when the document was lost. Jones v. Dep’t of Corr. The court recognized that the PRA does not allow an agency to destroy records subject to a pending request. But, the court acknowledged that an “agency is not required to produce a document that does not exist.” There was no evidence that the Department unlawfully destroyed the requested form. And, the court pointed to federal court rulings finding a “government agency in compliance with the freedom of information act when it performed a reasonable search despite evidence that some requested records were accidently lost.” While an unpublished opinion, the case is useful in recognizing that the PRA “is not intended to penalize inadvertent loss, a phenomenon endemic to a large organization.”

In White v. City of Lakewood, No. 47079-9-II (May 25, 2016), Division II of the Washington Court of Appeals applied a form of “mailbox rule” to the state Public Records Act (PRA) in defining when records have been “produced” sufficient to trigger the PRA’s one-year statute of limitations. Additionally, the Court reiterated that the statute of limitations is not triggered by an invalid claim of exemption.

White filed three public records requests with the City of Lakewood for documents pertaining to a search warrant. The city withheld responsive records pursuant to the categorical exemption for open and active police investigations under RCW 42.56.240 and Newman v. King County, 133 Wn.2d 565, 947 P.2d 712 (1997), although it later produced certain documents. White filed suit challenging the city’s response to all three requests.

Continue Reading Washington Court Of Appeals Determines When Records Have Been “Produced” Under Public Records Act To Trigger Statute Of Limitations