“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.

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.
 

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.
 

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.

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).
 

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.
 

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.
 

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.”
 

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.
 

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.”
 

(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.
 

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.
 

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.”
 

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).
 

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.

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).

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).

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."