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

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.

Applying the first factor, the Court held that operation of a zoo is not an inherently governmental function. On the second factor, the Court observed that "the type of funding matters and, specifically, that an ordinary fee-for-services model typically weighs against functional equivalency....But Washington cases also suggest that the percentage of funds attributable to public sources is the foremost consideration." The City provides approximately 30 percent of the Zoo Society’s annual funding. The Court found the second factor to be inconclusive.

On the third factor, the Court applied a "day-to-day" operations analysis to find that the City did not exercise operational control over the Zoo Society. The Zoo Society’s board acted in total independence from the City. In prior cases, a local government’s retention of substantial control through public official seats on the respective boards resulted in findings of significant government involvement under the third Telford factor.

With respect to the fourth factor, the Zoo Society was incorporated solely by private individuals, so the Court would not attribute its "origin" to special legislation or other government action. The Court explained: "The Telford test is designed to prevent the government from operating in secrecy via a private surrogate. It is not designed to sweep within PRA coverage every private organization that contracts with government. This remains true even if the contracts in question are governed or authorized by statute." Therefore, neither the City nor any other public agency subject to the PRA "created" the Zoo Society under the fourth factor.

Applying all four factors "on balance," and with only one factor inconclusive, the Court held that the Zoo Society is not the functional equivalent of a government agency under the Telford test. Accordingly, it is not an "agency" subject to PRA requirements.

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

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.

West sought surveillance videos that Everett police and the FBI gathered as they investigated public corruption and prostitution at sexpresso stands in Snohomish County.

The city agreed the 5.3 terabytes of video were subject to disclosure under the state’s open records law. It offered West viewing access. However, officials resisted his demand for copies. They said surveillance videos showing baristas stripping and engaging in sexual conduct with each other and customers amounted to "nonconsensual pornography." Releasing the videos would violate privacy rights, particularly if they wound up online, the city argued.

Superior Court Judge George Appel in December ruled the city’s "inspect-but-don’t copy" position violated the Public Records Act.

West said the litigation was appropriate because the city’s had created what he called a "peek-a-boo" exemption to disclosure. City officials may have taken that stance in good faith, but they still deprived him legal access to records that contain evidence of official misconduct, he said last week.

Investigators have never maintained otherwise.

Darrell O’Neill, a former Snohomish County sheriff’s sergeant, was sentenced to a year in jail last week for the felony of conspiring to engage in laundering money connected to the sexpresso business. He only began admitting the scope of his illegal conduct when confronted by video evidence showing him in uniform in intimate embrace with coffee hut workers, records show.

The investigation found the stands were multimillion-dollar operations that mixed selling coffee drinks with customers paying baristas for sexually explicit conduct, primarily flashing private parts but also exchanging sex for money.

The state Public Records Act allows a judge to impose penalties for each day a government illegally withholds records. Assistant city attorney Ramsey Ramerman said settling with West now makes sense given the court’s ruling.

"The benefits to the city are quickly diminishing if we try to litigate over the settlement amount," Ramerman said.

That doesn’t mean the settlement was reached without pushing back and forth.

West, who is not an attorney, represented himself in the courtroom to argue the public records aspects of the case. He also retained Olympia attorney Jon Cushman to press the city for a cash award, according to emails The Daily Herald obtained under a public records request.

"This case should settle," Cushman wrote Ramerman in August. "A media feeding frenzy is about to occur."

The city’s response: It could handle any frenzy that arose and the legal questions were real.

Cushman demanded $175,000 and complained when his message went unanswered. He renewed the $150,000 demand in December after the court ruled against Everett.

Ramerman told West’s attorney that amount was "a conversation killer," and the city instead asked the judge to revisit the ruling.

Appel stood firm, however, and negotiations commenced.

West in August told The Daily Herald he wasn’t trying to force a cash award from the city and that resolving the public access questions raised by the case were his primary attraction.

"The public interest is served by having rewards for people who have the time and the skill to spend years if necessary in court to uphold the people’s right to know," he said last week.

Copyright (c) Herald Net

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

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:

The statute does not use terms like "either" or "only" to limit the triggering events, nor does it set forth a definitive list by numbering the events as (1) and (2). Instead, the statute of limitations' reference to bringing suit within one year of "the agency's claim of exemption or the last production of a record on a partial or installment basis" indicates that the legislature intended to impose a one year statute of limitations beginning on an agency's final, definitive response to a public records request. RCW 52.56.550(6). This theme of finality should apply to begin the statute of limitations for all possible responses under the PRA, not just the two expressly listed in RCW 42.56.550(6).

Belenski Opinion at 9 (emphasis added).

However, the Court remanded the case to the trial court for consideration of equitable tolling, finding that Belenski and amici had raised “legitimate concerns that allowing the statute of limitations to run based on an agency’s dishonest response could incentivize agencies to intentionally withhold information and then avoid liability due to the expiration of the statute of limitations.” Two dissenting justices would have held that Belenski’s suit was timely because the county’s alleged “false response” never triggered the statute of limitations.

Lost But Not Forgotten: Public Records Act Violation?

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.”

Washington Court Of Appeals Determines When Records Have Been "Produced" Under Public Records Act To Trigger Statute Of Limitations

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.

First, the Court of Appeals held that White’s claims regarding his first PRA request were not time-barred. Because the city had admitted to the Court at oral argument that its police investigation was not, in fact, active, it had improperly invoked the Newman exemption. Accordingly, the one-year statute of limitations was not triggered by the city’s invalid claim of exemption, pursuant to Rental Housing Association of Puget Sound v. City of Des Moines, 165 Wn.2d 525, 199 P.3d 393 (2009).

Next, the Court considered the statute of limitations as to White’s second PRA request. RCW 42.56.550(6) requires that a PRA action “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.” In construing when records have been “produced” under the statute, the Court determined that the statute of limitations is triggered when the agency “brings all of the documents together and makes that collection of documents available to a delivery service for delivery to the requestor.” Slip Op. at p. 13. In White’s case, his claims were time-barred because the city had placed the letter and responsive records in the city’s outgoing mailbox more than one year prior to White bringing suit.

The Court of Appeals then remanded the case to the superior court for consideration of the proper penalty to be awarded White based on the city’s improper response to his first and third PRA requests.

Washington Supreme Court Reviews "Other Statute" Exemption in Ruling on Release of Sex Offender Records Under the Public Records Act

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.

In a 7-2 decision, the Washington Supreme Court reversed. The court first observed that an “other statute” that exempts disclosure “does not need to expressly address the PRA, but it must expressly prohibit or exempt the release of records.” Opinion at 7. The court explained that the community notification statute was not prohibitory, but rather is framed in terms of what an agency is permitted to, or must, do. Opinion at 13. After discussing prior court decisions construing the “other statute” exemption, the court concluded:

The PRA, and our case law surrounding it, demands that an “other statute” exemption be explicit. Where the legislature has not made a PRA exemption in an “other statute” explicit, we will not. Because of the presumption of disclosure under the PRA, the lack of any prohibitory language—save for a mandate against confidentiality—or explicit exemption in RCW 4.24.550 and this state’s precedent in “other statute” cases, we hold that RCW 4.24.550, specifically RCW 4.24.550(3)(a), is not an “other statute” under RCW 42.56.070(1) and that level I sex offender registration information is subject to disclosure under a PRA request.

Opinion at 21-22.

The court also determined that, although the requester prevailed, she was not entitled to penalties or attorney’s fees under the PRA. Because the Washington State Patrol and WASPC had taken the position that the records were subject to disclosure, the requester had not prevailed “against an agency” under RCW 42.56.550(4), but rather had prevailed against a private party seeking to enjoin disclosure. Opinion at 23.

In a dissenting opinion, two justices asserted that the majority’s opinion articulates a “brand new and extremely rigid interpretation” of the PRA’s “other statute” exemption, and allows people to circumvent the community notification statute’s clear disclosure limits by simply filing a public records request.

What is an Agency's Obligation When a Records Request May Suggest Requester's "Commercial Purpose"?

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.”

The Court then determined if the request was for “commercial purposes”. The Freedom Foundation asserted that the request was for communication to workers about their constitutional rights, and not to solicit contributions. The Court applied the following definition in ruling in favor of the Foundation’s request: “commercial purposes” in RCW 42.56.070(9) includes a business activity by any form of business enterprise intended to generate revenue or financial benefit. The Court found that the Foundation was not seeking to generate revenue or financial benefit.

In its decision, the Court added to an agency’s already-difficult burden in responding to PRA requests. Because RCW 42.56.070(9) expressly states that a government agency “shall not” provide access to lists of individuals requested for commercial purposes, the Court determined there is “some burden on the agency to avoid disclosing lists of individuals to a party intending to use the list for commercial purposes.” While the PRA gives no specific guidance, the Court held that an “agency must investigate when it has some indication that the list might be used for commercial purposes. Whether an agency must investigate will depend on a case-by-case determination based on the identity of the requester, the nature of the records requested, and any other information available to the agency.” And, an agency “must at least require a party requesting a list of individuals to state the purpose of the request.” The Court gives no further guidance.

The Washington Attorney General model rules advise that “[a]n agency may require a requestor to sign a declaration that he or she will not put a list of individuals in the record to use for a commercial purpose.” WAC 44-14-06002(6) (citing AGO 1988 No. 12 at 10-11 (agency could require requestor to sign affidavit of noncommercial use)). The Court concluded this is no longer sufficient. The agency must additionally require the declarant to state the purpose of the request if RCW 42.56.070(9) is implicated:

DSHS suggests that if an agency has an obligation to investigate, an affirmation from the requesting party that the intended use of the list is not for commercial purposes is sufficient. The problem with such an affirmation is that it allows the requesting party to control whether a list of individuals will be released without any independent inquiry by the agency. Therefore, merely requiring an affirmation from the requesting party is not sufficient to satisfy an agency’s obligation to investigate under RCW 42.56.070(9).

In light of this ruling, if an agency fails to obtain a declaration from the requestor that both disclaims use for commercial purposes and states the requestor’s intended purposes, then releasing the record risks waiving immunity under RCW 42.56.060 if the agency gets it wrong. And, a wrongful withholding (whether or not founded on a declaration) could still subject the agency to penalties and fees. A declaratory judgment action might be the agency’s only recourse. Otherwise, there may be too much risk of agency exposure under the PRA for a wrong decision and for withholding of requested records.

Administrative Agency "Within the Judicial Realm" Not Subject to PRA, According to New Court Decision

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.

Like the Department of Judicial Administration in Nast, the Association in West exists solely to perform statutory functions that are “all part and parcel of the type of administrative work that judges do and have always done.” Given that its functions are “judicial,” the Association is outside the realm of the PRA and its rules do not apply. Note that in Nast, the common law right of access to court case files controlled over the more general language of public disclosure laws applicable to state and local governments, and in subsequent cases, courts held that those disclosure laws do not to apply to the judicial branch at all. See City of Federal Way v. Koenig, 167 Wn.2d 341, 345-46, 217 P.3d 1172 (2009), citing Spokane & E. Lawyer v. Tompkins, 136 Wn. App. 616, 621–22, 150 P.3d 158 (upholding denial of public records request for correspondence from county judges to the bar association regarding local lawyers); Beuhler v. Small, 115 Wn. App. 914, 918, 64 P.3d 78 (2003) (upholding denial of public records request for a computer file containing a judge's notes on prior sentences he had imposed).

Updated Edition of the Washington Open Government Resource Manual

The Washington State Office of the Attorney General has issued a new addition of its Open Government Resource Manual. The 2015 manual provides information on the Open Public Meetings Act (OPMA), Chapter 42.30 RCW, and the Public Records Act (PRA), Chapter 42.56 RCW (through October 1, 2015).

Click here for a PDF version of the manual. Click here for an online version. 

This is an update of the Attorney General's 2007 Manual. 

Text Messages on Private Devices Subject to Washington Public Records Act

On August 27, 2015, the Washington Supreme Court affirmed lower courts in holding “that text messages sent and received by a public employee in the employee's official capacity are public records of the employer, even if the employee uses a private cell phone.” Nissen v. Pierce County

The case arose when a sheriff’s detective sent requests to Pierce County for records related to the County Prosecutor. One request was for cellular telephone records for the Prosecutor’s personal phone. There was no dispute that the Prosecutor personally bought the phone, pays for its monthly service, and sometimes uses it in the course of his job.

The Court’s unanimous decision required the Prosecutor to obtain a transcript of the content of all the text messages at issue, review them, and produce any that are public records to the County. “The County must then review those messages just as it would any other public record-and apply any applicable exemptions, redact information if necessary, and produce the records and any exemption log.”

The Court provided public officials a method to submit an affidavit to separate personal from public messages:

“Where an employee withholds personal records from the employer, he or she must submit an affidavit with facts sufficient to show the information is not a "public record" under the PRA. So long as the affidavits give the requester and the trial court a sufficient factual basis to determine that withheld material is indeed nonresponsive, the agency has performed an adequate search under the PRA. When done in good faith, this procedure allows an agency to fulfill its responsibility to search for and disclose public records without unnecessarily treading on the constitutional rights of its employees.”

The Nissen case reemphasizes the need for public officer and employee vigilance in managing information on personal communication devices. While convenient, the use of private devices for official business creates substantial expense to a public agency in responding to requests for public records.

Court Of Appeals Reverses Large Public Records Act Penalty Imposed On University Of Washington

In Bichindaritz v. University of Washington, Division One of the Court of Appeals reversed a $723,290.50 penalty and $102,958.03 attorney fee award for violations of the Public Records Act by the University of Washington.  The trial court had concluded that the University’s production of documents to the requestor, a former employee who had sued the University, was not in good faith and that the University waited too long to produce records it had already assembled but had not yet reviewed.  The University appealed.

In particular, the University challenged the trial court’s conclusion that as soon as the University had assembled the responsive documents, they were ready to be produced to the requestor.  The Court of Appeals agreed with the University, explaining that the Public Records Act requires that responses to records requests be made “promptly,” but also expressly recognizes that an agency may need additional time to determine whether any part of the information requested is exempt.  See RCW 42.56.520.  As the court summarized:

By the time Bichindaritz closed her 2009 request in February 2011, the University had assembled about 25,000 pages but had reviewed only about half of them for exemptions.  It was unreasonable to expect the University to produce the remaining 12,000 pages the same day Bichindaritz reopened her request simply because it had already assembled those documents.

Opinion at 7 (emphasis in original).

The Court of Appeals also rejected the requestor’s argument that the University’s violation could be sustained on the basis that the University “repeatedly missed production deadlines.”  The court observed that the Public Records Act demands only that an agency provide reasonable estimates for production—not necessarily that an agency comply with its own self-imposed deadlines.  “The question is whether the agency ‘was acting diligently in responding to the request in a reasonable and thorough manner.’”  Opinion at 9 (citing the recent decision in Hobbs v. State).  Here, the requestor did not argue – and the record did not indicate – that the University was less than diligent in completing its review and redaction of the final records for production.  Concluding that the University had not violated the Public Records Act, the Court of Appeals reversed the trial court’s imposition of penalties and attorney fees.

Exemption Log Sufficient to Trigger One Year Statute of Limitations for Washington PRA Claim

Under Washington’s Public Record Act, an action challenging an agency’s refusal of records must be filed within one year of the agency’s claim of exemption. RCW 42.56.550(6). The Supreme Court holds that an insufficient exemption log will not trigger the running of the statute of limitations. 

Rental Housing Association of Puget Sound v. City of Des Moines, 165 Wn.2d 525 (2009  A “log need not be elaborate but should allow a requestor to make a threshold determination of whether the agency has properly invoked the exemption.”  WAC 44-14-04004(4)(b)(ii).  ). See also December 15, 2014 posting entitled "Washington Supreme Court Orders Attorney Fees And Costs To Requester For Agency's Violation Of PRA's 'Brief Explanation' Requirement." 

On February 9, 2015, the Washington Court of Appeals considered a PRA claim filed against the Washington Criminal Justice Training Commission (WSCJTC).  John F. Klinkert  v.  Wa State Crm Justice Training Commission. WSCJTC responded to a PRA request with a one page log for two records. 

One of the records was a 713-page investigative file.  WSCJTC claimed the entire file exempt under RCW 43.101.400(1) as records “that may be used by WSCJTC in an investigation of [a deputy sheriff’s] certification.” After the WSCJTC responded to the PRA request, there were further exchanges between Klinkert and WSCJTC, but no change in position. Later, Klinkert filed his action more than one year after the initial rejection of his request. The Court upheld the application of the one year statute of limitation, finding that there was sufficient information in the WSCJTC exemption log for Klinkert to understand the basis for the claim of exemption. His claim was time barred by the statute and properly dismissed.

Seattle City Council Briefing on PRA Compliance

As part of its 2014 Statement of Legislative Intent (SLI), the Seattle City Council requested that the City Clerk, the City Attorney’s Office and various executive departments form a PDR [Public Disclosure request] Task Force to: (i) identify shortcomings in the City’s current approach to fulfilling PDRs; and (ii) make recommendations regarding appropriate City-wide policies. See SLI 13-2-A-1. The Task Force briefing outline for the City Council (January 5, 2015)  is available here.

Included in the preliminary recommendations are:

  1. Create a Citywide Public Records Act (CPRA) program to centrally manage the public disclosure function for complex requests.
  2. Strengthen support for Public Disclosure Officers.
  3. Develop centralized PDR Portal & tracking system that allows public access.
  4. Expand the PRA training curriculum.
  5. Measure customer satisfaction.

Washington Supreme Court Orders Attorney Fees And Costs To Requester For Agency's Violation Of PRA's "Brief Explanation" Requirement

The Public Records Act (PRA) requires that when an agency withholds or redacts records, its response “shall include a statement of the specific exemption authorizing the withholding of the record (or part) and a brief explanation of how the exemption applies to the record withheld.”  RCW 42.56.210(3).  In a 5-4 decision, the Washington Supreme Court held in City of Lakewood v. Koenig that an agency’s violation of this requirement entitles the requester to attorney fees and costs, regardless of whether the records were properly withheld.

In this case, David Koenig had requested records from the City of Lakewood relating to certain police officer incidents.  In its response, the city redacted, among other things, driver’s license numbers from the records, citing to various statutory provisions without additional explanation.  In a majority opinion written by Justice Steven González, the court found that the city’s response violated the PRA because the city either failed to cite a specific exemption or failed to explain how the particular statute applied to the redacted driver’s license numbers in the specific records produced.  As a result, “the burden was shifted to the requester to sift through the statutes cited by the city and parse out possible exemption claims.”  Opinion at 7-8.  Because the PRA provides that costs and reasonable attorney fees shall be awarded to a requester for vindicating “the right to receive a response,” the court held that Koenig was entitled to his attorney fees and costs, including those on appeal.  Id. at 10-12. 

In explaining its decision, the court observed that the level of detail an agency needs to provide will depend on both the nature of the exemption and the nature of the document or information.  For example, if it is clear on the face of a record what type of information has been redacted and that this type of information is categorically exempt, citing to a specific statutory provision may be sufficient.  But for other exemptions, including the “other” statute exemptions that the city cited, “additional explanation is necessary to determine whether the exemption is properly invoked.”  Id. at 8.

In a dissenting opinion joined by three other justices, Chief Justice Barbara Madsen asserted that the majority’s decision imposed an additional burden on agencies to provide enough explanation to prove its claimed exemptions are correct, which the PRA does not require.  The dissent distinguished the facts in Sanders v. State, 169 Wn.2d 827 (2010), observing that, here, “the city explained what information it actually withheld—driver’s license numbers—and it explained why—the cited statutes.”  Dissenting Opinion at 2.  While the dissent acknowledged that attorney fees may be warranted if an agency fails to identify a record or give its reason for withholding, the dissent would have held that attorney fees are not independently warranted if the agency has identified the record and given its reason for redacting or withholding the record.

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."