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

In Doe v. Washington State Patrol, the Washington Supreme Court held that the state’s community notification statute concerning registered sex offenders is not an “other statute” exemption under the Washington Public Records Act (PRA).

The requester in Doe sought records pertaining to level I registered sex offenders (those classified as least likely to reoffend) from the Washington State Patrol and the Washington Association of Sheriffs and Police Chiefs (WASPC). The agencies sent notice of the scheduled disclosure to affected sex offenders, who sued to prevent release. The trial court agreed with the plaintiffs that level I sex offender registration records are exempt from disclosure under the PRA’s “other statute” exemption because the community notification statute, RCW 4.24.550, provided the exclusive mechanism for public disclosure of sex offender records. The “other statute” exemption allows withholding of records where the PRA “or other statute . . . exempts or prohibits disclosure of specific information or records.” RCW 42.56.070(1). The trial court issued an injunction preventing release of the records.

Continue Reading Washington Supreme Court Reviews “Other Statute” Exemption in Ruling on Release of Sex Offender Records Under the Public Records Act

A Washington Court of Appeals recently addressed this question in a case involving a request from the Freedom Foundation to a state agency for lists of names of home healthcare workers and their contact information. The union representing the workers opposed the disclosure. SEIU Healthcare v. DSHS and Freedom Foundation (No. 446797-6-II, April 12, 2016). The State’s Public Records Act (PRA) “shall not be construed as giving authority to any agency . . . to give, sell or provide access to lists of individuals requested for commercial purposes, and agencies . . . shall not do so unless specifically authorized or directed by law.” RCW 42.56.070(9). The union argued this provision prohibited disclosure, and was not just an exemption from disclosure. The Court rejected the argument, finding “the distinction between an exemption and a prohibition largely is immaterial. [Another section of the PRA] does not distinguish between the two, referring to any other statute that ‘exempts or prohibits’ disclosure. . . . We conclude that RCW 42.56.070(9) must be construed in favor of disclosure regardless of whether [RCW 42.56.070(9)] states an exemption or prohibition.”

Continue Reading What is an Agency’s Obligation When a Records Request May Suggest Requester’s “Commercial Purpose”?

In West v. Washington State Association of District and Municipal Court Judges, a state agency, 2015 WL 6680205 (Div. I, November 2, 2015), Division I held that the Washington State Association of District and Municipal Court Judges (the Association) is a judicial branch agency for purposes of the Public Records Act (PRA), chapter 42.56 RCW. Although the Association does not hear and decide cases, it conducts some of the traditional administrative business of the courts and by statute reports on the business of the courts to the legislature and to the Supreme Court. RCW 3.70.040. This function places the Association squarely “within the judicial realm,” and therefore outside the scope of the PRA, under the test developed in Nast v. Michels, 107 Wn.2d 300, 730 P.2d 54 (1986).

In Nast, the Supreme Court held that the King County Department of Judicial Administration was not subject to the PRA because “its function as custodian for court case files places it within the judicial realm.” 107 Wn.2d at 305. Thus the court took a functional view to determine whether an agency, otherwise within the purview of the PRA, was within the judiciary and for that reason not subject to the requirements of the PRA.

Continue Reading Administrative Agency “Within the Judicial Realm” Not Subject to PRA, According to New Court Decision