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Less than twenty four hours after Wednesday’s post on New Mexico’s Supreme Court’s decision on disclosure of police misconduct records, the Washington State Supreme Court issued a decision in Bainbridge Island Police Guild v. City of Puyallup, No. 823740-0.  In Bainbridge Island, the Court addressed whether complaints alleging police misconduct must be disclosed under Washington State’s Public Records Act (“PRA”) even if the accusations are unfounded or unsubstantiated.

The case was brought by a citizen who alleged that a police officer sexually and physically assaulted her during the course of a traffic stop. Investigations were conducted by the cities of Puyallup (criminal) and Mercer Island (internal investigation).  Each investigation found the claims to be unsubstantiated.  The case garnered media attention, and several journalists and news organizations, in addition to the complainant herself, made public records requests for the investigative reports.  The cities of Puyallup and Mercer Island informed the requestors that the documents would be produced absent an injunction, which the Police Guild and the implicated officer sought (though not before at least one of the reports had been released and information published by some media sources).

Subsequent records requests and demands for injunctions led to in camera review of the documents by a Kitsap County Superior Court judge, who determined that the reports should be withheld under the investigative report exception to the PRA, RCW 42.56.240(1).  Injunctions were also sought against requestors in Pierce County Superior Court.  That court determined that the Puyallup report could be withheld from disclosure under the personal information exemption to the PRA, former RCW 42.56.230(2) and privacy concerns under RCW 42.56.050.  Injunctions enjoining disclosure of the reports were granted in King County Superior Court on the same grounds.

The Supreme Court accepted direct review.  The lead opinion (4 justices) overturned the King and Pierce County decisions, which had determined that the reports could be withheld in their entirety based on privacy concerns under the PRA’s personal information exemption.  Personal information is not defined in the PRA, but has been defined by the Supreme Court as “information relating to or affecting a particular individual, information associated with private concerns or information that is public and not general.”  Bellevue John Does 1-11 v. Bellevue Sch. Dist. No. 405, 164 Wn.2d 199, 211, 189 P.3d 139 (2008).  The Court rejected the trial courts’ determination that the reports should be withheld in their entirety, and instead instructed the agencies to produce the records, but redact identifying information (i.e. the officer’s name, social security number or other identifying data) in order to protect personal privacy interests.  The Court compared the unsubstantiated allegations against police officers with the Bellevue John Does case, where the Court found the names of public school teachers who are the subject of unsubstantiated allegations of sexual misconduct are exempt from disclosure, but the underlying investigative reports (with names redacted) were subject to release.  The Court also addressed the investigative records exemption to the PRA, RCW 42.56.240(1) (raised in the Kitsap County Superior Court case), and found it inapplicable, as the records are not essential to effective law enforcement.  Disclosure of the records (without identifying information) was justified by the public’s “legitimate interest” in knowing how the allegations of misconduct were investigated. Opinion at 18-22; see also RCW 42.56.050.

In contrast, the concurrence/dissent (4 justices) asserted that the entire record should be released, including the officer’s name.  Justice Madsen wrote that an officer’s name does not need to be redacted in an investigation or complaint against a police officer for sexual misconduct, because such allegations “in no way involve the details of one’s personal and private life.” Concurrence/dissent at 1.  “Public records relating to alleged misconduct of public servants and who government agents investigate such allegations are quintessential examples of the kind of information that the PRA opens to scrutiny.  The public has the right to know… .” Concurrence/dissent at 2.  That opinion would hold that the exemptions raised by the Police Guild and the officer did not justify nondisclosure.

Finally, Justice Johnson wrote a lone dissent finding that the two investigative reports “fit squarely” within the PRA exemption for investigative records, thus should not be disclosed at all. He found the lead opinion to be inconsistent with Bellevue John Does.

The practical result of these decisions is that disclosure outweighs privacy concerns in the arena of public employees’ misconduct. Investigative records detailing claims of misconduct must be released and available to the public. This will likely apply across the board to all public sector employees, and will not be limited solely to law enforcement or education. Even if allegations are unsubstantiated, the record must be released, though with redaction of names or personal identifying information.

Click here for a recent Seattle Times article on the decision.

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The Colorado Supreme Court recently held that the Denver Post could not obtain records from the personal cell phone of former Colorado Governor Bill Ritter.  Denver Post Corp. v. Ritter, ---P.3d ---, 2011 WL 2449325 (Colo. 2011).  The Court found that the newspaper did not clearly state a claim that the cell phone bills were public records under the Colorado Open Records Act (“CORA”).

Governor Ritter had a practice of using two cell phones. The first phone was a state-paid Blackberry, which Ritter used almost exclusively for email. The Governor paid for the second phone, which he used for both personal calls and calls he made in his role as Governor.

In 2008, the Denver Post sued Ritter, seeking access to the private cell phone bills, arguing that they were public records under CORA.  The Post asserted that the bills would reveal valuable information about the workings of the state government. CORA defines public records as “writings made, maintained or kept by the state … for use in the exercise of functions required or authorized by law.” § 24-72-202 (6)(a)(I), C.R.S. (2010).  The newspaper claimed that the records met the statutory definition because the former Governor used his personal phone “in the exercise of functions required or authorized by law” and that the phone bills were “made” as a by-product of Ritter’s phone use.  The Post also argued that Ritter was attempting to privatize his conduct by using a private, personal account, and that this was an unacceptable “loophole” in the requirements of CORA.  Slip-Op. at 6.

A majority of the Justices of the Colorado Supreme Court denied the Denver Post’s request, finding that the newspaper’s complaint failed to state a claim that the former Governor’s personal cell phone billing statements were actually public records under CORA.  The Court found that the Post’s complaint was conclusory and did not allege facts demonstrating that Ritter “made”, “maintained” or “kept” his personal cell phone billing records in his official capacity as Governor.  The Court was simply unconvinced by the Post’s efforts to fit the cell phone bills into the statutory definition of a public record.  As such, the Post’s action failed.  Two Justices dissented, opining that the phone bills were, in fact, public records under CORA. These justices noted their concerns that public officials not use “efficiency and convenience as an excuse to shield records of their official conduct from the citizens on whose behalf they serve.”  Slip-Op. at 15.

The Washington State Supreme Court has also addressed a public official’s use of private technology in the context of public records.  In O’Neill v. City of Shoreline, 170 Wn.2d 138, 240 P.3d 1149 (2010), the Court authorized a search of a government official’s personal computer to locate an email (complete with original metadata).  A councilmember had used her personal computer to transact city business.  While there was no question under Washington’s Public Records Act that the email message in O’Neill was a public record, the Court ventured into new territory by allowing the requestor access to a personal, non-government device.  In dicta, the Court explained that the ruling was justified by the Court’s concern for the integrity of the Washington Public Records Act: “We note that this inspection is appropriate only because [the government official] used her personal computer for city business. If government employees could circumvent the PRA by using their home computers for government business, the PRA could be drastically undermined.” 170 Wn.2d at 150.  For more information on this topic, see our prior blog posts on O’Neill v. City of Shoreline and Mechling v. City of Monroe.
 

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In February, thousands of protestors, including many teachers, attended rallies in Wisconsin’s capitol to protest Governor Scott Walker’s proposed limits on collective bargaining for public workers.  As a result, schools were closed for a day or more in many districts.  Now conservative groups have filed public records requests asking school districts across the state to release the names of teachers who “called in sick” during the protests.

Many districts have complied, but the Madison School District (“District”), which had four days of closures in February, has denied several public records requests.  As reported by the Wisconsin State Journal, the District is concerned that the release of the teachers’ names could “risk the safety of teachers and students, and disrupt morale and the learning environment in schools.”  The requesting groups deny that the information will be used to harm or harass teachers.  However, the District’s counsel believes otherwise, citing “a number of threats” made against board members, administrators and district employees as a result of teachers’ participation in the protests.

Some districts have successfully prevented disclosure of teachers’ names. The Wisconsin Education Association Council argued on behalf of the La Crosse and Holmen School Districts that safety risks outweighed the benefits of disclosure, obtaining an injunction from a La Crosse Circuit Court Judge.

Wisconsin’s Public Records laws do not include a disclosure exemption for general safety concerns. There is an exemption for specific employee records, including “personally identifiable information” such as addresses, phone numbers and social security numbers. Sec. 19.36(1) of the 2003 Wisconsin Act 47.  However, the requestors in this case seek only names, not identifying information.

When there is no established exemption (by statute or common law) and a public records custodian has doubts or concerns about whether to release records, Wisconsin courts perform a balancing test. Sec. 19.35(1)(a).  Records may be withheld only if the public interest in nondisclosure outweighs the public interest in disclosure, as there is a strong presumption of access.  See Matter of Estates v. Zimmer, 151 Wis. 2d 122 (Wis. Ct. App. 1989).

It remains to be seen how the court will balance the competing interests in this case, and whether the District’s safety argument will outweigh the presumption of disclosure that is central to the Wisconsin Public Records Act.

Washington’s Public Records Act is similar, in that there is no blanket exemption for safety or privacy. To prevent disclosure out of concerns for privacy or safety, an agency must prove that disclosure of the information 1) would be highly offensive to a reasonable person, and 2) is not of legitimate concern to the public.  RCW 42.56.050.  Specific personal identifying data is, of course, exempt from disclosure. RCW 42.56.210.  However, names must generally be disclosed.  See John Doe No. 1 v. Reed, __ U.S. ___, 130 S. Ct. 2811, 177 L.Ed.2d 493 (2011) (finding that Washington’s public records act authorized the release of the names of voters who signed referendum petitions); King County v. Sheehan, 114 Wn. App. 325, 57 P.3d 307 (2002) (holding that public records act does not exempt from disclosure the full names and ranks of county police officers).

An article in the May 26, 2011 Seattle Times highlights a recent Seattle “name release” case.  A labor arbitrator, acting at the request of the Seattle Police Officers’ Guild, just ordered the Seattle Police Department to stop releasing the names of officers found to have engaged in misconduct.  It is reported that the city attorneys plan to appeal, believing the decision is in conflict with Washington law.
 

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The Arizona Court of Appeals has dismissed an elementary school District’s suit to limit repeated public records requests. Congress Elementary School District No. 17 of Yavapai County v. Warren, 2011 WL 1206192 (Ariz.App. Div. 1, 2011).

This case was in response to multiple requests between 2002 and 2010 to the District from four persons. The requests required the District’s employees to spend more than 417 hours to review nearly 9,000 pages of documents. The District claimed that responding to these requests diverted key staff from teaching and classroom duties.

In 2010, the District filed suit in Arizona superior court against the requestors claiming that the aggregate effect of the requests constituted a public nuisance under Arizona law and an abuse of the public records statute. The District sought an injunction that would prohibit the requestors from filing additional requests without first obtaining permission from a superior court judge. The District argued that this type of injunction has previously been ordered by the courts against repeat filers of frivolous lawsuits. Notably, the District did not claim that any of the prior requests were frivolous or sought records not covered by the Arizona public record statute.

The requestors claimed that such an injunction would violate their rights to free speech, petition for redress, and access to public records under Arizona law. The requestors also argued that issuing such an injunction would reverse the statutory presumption favoring production of public records.

The superior court ruled that there was “no statutory basis for it to impose ‘a judicial screening process for multiple or even unreasonable public record requests’ or to order relief targeting possible future requests” and dismissed the suit. The Court of Appeals affirmed. With respect to the District’s analogy to injunction against repeat filers of frivolous suits, the court found that the District had failed to show that any of the past requests were frivolous. With respect to the District’s public nuisance claim, the court held that a public nuisance suit can only be sustained if the requests “unreasonably interfered with the public health, safety, peace, comfort or convenience” and that the District had failed to make this showing. In addition to winning a dismissal of the District’s claim, the requestors were awarded reasonable attorney fees.

This case provides further support for the principle that significant search burden alone is not sufficient to deny an otherwise legitimate public records request. This case highlights the necessity of all public entities to maintain searchable record management systems and clear record maintenance policies. In light of the high costs that can be associated with responding to extremely broad requests, taking these proactive steps can be well worth the investment.

In Washington, a 2009 amendment to the Public Records Act, RCW 42.56.565, provides a statutory basis for enjoining repeated public records requests from prison inmates, but no such statutory basis exist for enjoining repeated requests from other citizens. Some local agencies in Washington have been successful in securing court orders similar to the order denied in the Arizona case. But, such orders only followed after repeated findings by the courts of frivolous actions or other demonstration of abuse of the court process, even for public records access. Also see the discussion of the unpublished decision in Phillips v. Valley Com., posted in this blog at http://www.localopengovernment.com/2010/12/articles/washington-court-of-appeals-upholds-sanctions-against-disgruntled-employee-for-repeated-frivolous-public-records-requests/.
 

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The Libertarian group Freedom Foundation has recently filed suit against Washington Governor Christine Gregoire, alleging that the Governor withheld public records under an “Executive Privilege” exemption not found in the text of Washington’s Public Records Act (“PRA”), 42.56 RCW.

According to the Foundation’s website, the suit was commenced after a member of the Foundation requested documents from the Governor’s Office in April 2010, including records dealing with “medical marijuana legislation, Alaskan Way Viaduct replacement proposals, and the Columbia River hydro system.” The complaint seeks production of the requested records (some of which were withheld or redacted), attorneys’ fees and penalties for violating the PRA. The complaint only addresses the Governor’s response to the April 2010 request; however the Freedom Foundation has also alleged that since 2007, Gregoire has used the executive privilege 500 times in efforts to withhold records.

Under Washington’s PRA, public agency records must be made available to the public upon request unless they're covered by a specific exemption, identified in the PRA itself, or covered by other applicable Federal and State laws. See WAC 44-14-010. There is a strong policy in favor of disclosure, and exemptions are construed narrowly. See Progressive Animal Welfare Soc'y. v. Univ. of Wash., 125 Wn.2d 243, 262, 884 P.2d 592 (1994) (“PAWS II”). Although there are many exemptions listed in the PRA, the statute does not contain a general “executive privilege” exemption. Nor is the executive privilege listed as an exemption recognized by the Washington State Attorney General in its Model Rules on Public Disclosure.  See WAC 44-14-06002. 

According to a recent article in the Seattle Times, the Governor's Office says that the source of the executive privilege is the constitutional guarantee of separation of powers. As the Times reports, there has only been one definitive Washington court case addressing executive privilege, where a Snohomish County trial court made an oral ruling in favor of the exemption. However, in that case the executive privilege was raised in the context of documents requested in litigation, and used in conjunction with the deliberative process exemption, which prevents disclosure of records used as part of the policy and decision-making processes during the time such decisions are being made. PAWS II, 125 Wn.2d at 256. It is important to note, however, that after a decision is finalized, the records may be subject to disclosure. Id.

A Washington court may find that the deliberative process exemption applies to at least some of the records Freedom Foundation alleges were withheld in April 2010, particularly if the records reflect ongoing decision and policy making within the Governor’s Office. However, it remains to be seen whether the courts will directly address the issues of executive privilege and separation of powers. On the other hand, facing a parallel separation of powers issue in 1986, the Washington Supreme Court held that the judiciary is not included within the reach of the Public Records Act. Nast v. Michels, 107 Wn.2d 300, 730 P.2d 54 (1986).

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The latest public records decision from the U.S. Supreme Court has put Western Washington on the map.  The Court held 8-1 that Navy maps showing ammunition stockpiles at Indian Island (in Jefferson County, near Port Townsend) could not be withheld from disclosure under Exemption 2 of the Freedom of Information Act (“FOIA”).  Exemption 2 allows an entity to withhold records related to the internal personnel rules and practices of an agency.

In Milner v. Department of the Navy, the Navy argued that release of the maps would threaten public safety; the maps depict distances where damage could result from hypothetical explosions in buildings where weapons, ammunition and explosives are stored. But as reported by the Kitsap Sun, public safety is the very reason the maps were requested by local activist Glen Milner, who wanted information about whether his community might be endangered by the ammunition supply.

The crux of the case was whether Exemption 2 can be used to block the release of the type of documents in question. According to some of the amici curiae briefs before the Court (primarily news organizations and the ACLU), Exemption 2 had, over the years, become a catchall exemption for the government. “High 2” (as the exemption had become known) had expanded beyond its plain language through administrative interpretations and lower court rulings, allowing the government to withhold documents that were not clearly connected to an agency’s personnel rules or internal practices. Instead, based on a 1981 D.C. Circuit Court opinion, the “High 2” exemption had come to shield any internal documents whose release might risk circumvention of agency functions.

The Supreme Court held in favor of disclosure, finding that the maps were not “personnel rules or practices” under the plain language of Exemption 2, thus rejecting the 30-year old D.C. Circuit interpretation. Writing for the Court, Justice Kagan stated that the past tolerance of the expansive “High 2” reading of the statute  “pos[ed] the risk that FOIA would become less a disclosure than a ‘withholding statute’”. In a lone dissent, Justice Breyer stated that he would “let sleeping dogs lie”, noting that the courts have supported the broad use of Exemption 2 for the past 30 years.

The Court also noted that the Navy could rely on other FOIA exemptions to limit disclosure of the maps, such as the national security exemption (Exemption 1) or the law enforcement exemption (Exemption 7(f)) which allows an agency to withhold records that "could reasonably be expected to endanger the life or physical safety of any individual." But these issues were not decided by the District Court.

This case is likely to have a substantial impact on disclosure requests by prohibiting all agencies’ continued use of the “High 2” exemption to support expansive refusals to disclose  records. The Supreme Court has reminded us that exemptions to FOIA are narrowly construed, and all government agencies should think carefully about the narrow applicability of exemptions when asked for public records.

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The Port of Portland did not have to disclose a joint defense agreement among the lawyers for several parties potentially responsible for cleanup of the Portland Harbor Superfund Site.  A public interest group sought disclosure of the agreement under Oregon’s Public Records Act (“PRA”). The trial court and the Court of Appeals held that the agreement was exempt from disclosure under ORS 192.502(9)(a). Port of Portland v. Oregon Ctr. for Envtl. Health, 238 Or. App. 404 (Or. Ct. App. 2010. The Oregon exemption covers “public records or information the disclosure of which is prohibited or restricted or otherwise made confidential or privileged under Oregon Law.” The exemption encompasses materials that are subject to the attorney-client and work product privileges codified in Oregon’s Evidence Code, including “confidential communications made for the purpose of facilitating the rendering of professional legal services” and communications “by the client or the client’s lawyer to a lawyer representing another in a matter of common interest.” OEC 503(2). Despite the public interest group’s protestations that the agreement did not fit within the exemption, the Court held otherwise.  The Court held the agreement was exempt from disclosure under Oregon’s PRA as a confidential legal communication generated as a matter of common interest among lawyers representing the parties potentially responsible for the Superfund site.

Washington’s Public Records Act similarly contains exemptions for documents subject to attorney- client privilege. Washington’s general attorney-client privilege statute, RCW .60.060 (2)(a), is considered an "other statute" that provides for exemption from disclosure, as described in RCW 42.56.070 (1) of the PRA.  In addition, RCW 42.56.210 (1)(j) exempts attorney work-product involving a "controversy," i.e. completed, existing, or reasonably anticipated litigation involving the agency. See WAC 44-14-06002 (codifying the Washington State Attorney General’s Model Rules on Public Disclosure).  In general, the attorney-client privilege covers records reflecting communications made in confidence between a public official or agency employee acting in the performance of his or her duties, and an attorney serving in the capacity of legal advisor for the purpose of rendering or obtaining legal advice. The privilege also covers records prepared by the attorney in furtherance of the rendition of his or her legal advice. Id.  For example, recognizing a public interest in defending against civil liability, the Washington Supreme Court applied privilege protections to documents created by a school district’s legal team during the team’s investigation of a student’s death giving rise to potential liability. Soter v. Cowles Publ’g Co., 162 Wn.2d 716, 174 P.3d 60 (2007).

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The Kitsap Sun recently reported that on October 28, 2009, the Kitsap County Parks and Recreation Department’s blog (launched September 8, 2009 and hosted on a County intern’s Facebook site) was taken down. According to the article, the decision to take the blog down stemmed partially from the electronic records management advisory issued by the Secretary of State’s office. See our November 4, 2009 blog posting for more information regarding the advisory. The other reasons cited include the need to update the County’s communication policy to cover statements made by employees on third-party sites and the County’s information technology systems so the County can track records created through various social media.

Kitsap County’s decision follows a similar decision made by Alachua County in Florida. According to the Gainesville Sun, Alachua County recently put a ban on staff conducting any county business using text messages – whether using a county-issued cellular phone or a personal cell phone. The reason cited for the ban is the fact that text messages are public records and the county’s computer system has no way to track and save the messages.

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The Washington State Archives recently published a records management advice sheet entitled “Electronic Records Management: Blogs, Wikis, Facebook, Twitter & Managing Public Records” that provides guidance to state and local government agencies regarding the retention of public records of posts to social networking websites such as blogs, wikis, Facebook, and Twitter. 

The advice sheet provides five (5) factors for agencies to consider when managing the retention of public records created or received through social networking sites. These factors include determining whether the posts are public records (yes, if the posts are made or received in connection with the transaction of the agency’s public business). Determining whether the posts are simply copies of records that the agency is already retaining or whether the posts are primary records. Determining how long the posts will be retained and how the agency will retain the posts (especially if the posts are maintained by a third-party vendor). Finally, determining which business activities are appropriate for social networking, particularly if the agency is unable to manage the creation, receipt, and retention of the posts as public records.

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Yesterday, the Supreme Court of Arizona held, in a unanimous decision, that under the state’s public records laws any entity that maintains electronic records must disclose those records along with embedded metadata. Lake v. City of Phoenix et al, No. CV-09-0036. 

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