Inmate Robert Johnson's claim concerned the DOC’s Extended Family Visiting policy (“EFV”). The EFV policy allows an offender to receive private visits from family. Under early versions of the policy, inmates could participate in the EFV program only if they had a “positive prognosis of release”, that is if they would outlive their sentence. Johnson was ineligible for participation in the EFV program, and filed a complaint in federal district court in 2005. The DOC subsequently changed its policy as of June 8, 2006 (though not as a result of Johnson’s claims), eliminating the “positive prognosis of release” requirement.

In August 2006, Johnson sent a public records request to the DOC’s Public Disclosure Unit requesting information about the EFV policy revision. The DOC advised Johnson that the only responsive record was one email documenting approval of the policy change. Johnson received the record in early September, 2006. Over the next few months, Johnson submitted a duplicative public records request to various DOC Public Disclosure officers seeking the same information identified in his original request. After a series of searches and additional communications with the DOC, the Department sent Johnson a final letter on August 27, 2007, noting that Johnson had already received the sole responsive document, and that his request was considered closed. Over two years later, another requestor, Melinda Carter, sought the same information as Johnson. Carter was provided with nearly 300 pages of documents in response to her request.

In December 2009, Johnson filed a Public Records Act (“PRA”) action to compel production of records that the DOC ostensibly withheld. Johnson contended that the DOC violated the PRA by only disclosing a single email when he had requested all records pertaining to the EFV policy change. He cited Carter’s request and DOC’s 300-page response as evidence to support his claim. The superior court denied Johnson’s motion and dismissed his PRA action. The Court of Appeals affirmed, finding Johnson’s arguments were time-barred.

The PRA statute of limitations provides that a plaintiff must file an action within one year of either (1) an agency’s claim of exemption from disclosure requirements, or (2) an agency’s last production of a record on a partial or installment basis. RCW 42.56.550(6). Johnson claimed that the DOC had not produced a last record in this matter, since he had only received a single email. He believed there were many more documents available based on his knowledge of the quantity of documents provided to Carter. On this basis, he argued that the statue of limitations had not been triggered. The Court rejected this argument, finding that some statute of limitations applied – either the one year statute under the PRA, or the more generous two year “catch all” statute of limitations for civil actions. RCW 4.16.130. The latest that Johnson might have received the final DOC letter, dated August 27, 2007, would have been early September of 2007. He filed his request more than two years later, in December 2009. Under either statute of limitation, Johnson’s claim was time-barred.

An important note for both agencies and requestors alike, is that the PRA’s one year statute of limitations applies in narrow circumstances: when an agency has claimed an exemption, or after the last production of a record on a partial or install meant bases. If these two factors are not met, then the one year limitation under the PRA does not apply. The general two year “catch all” statute of limitations under RCW 4.16.130 applies instead. See Tobin v. Worden, 156 Wn. App. 507, 233 P.3d 906 (2010) .

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.
 

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.

Following these initial requests, Waggett began submitting increasingly burdensome requests to the District. According to the District, responding to these requests began to take up significant portions of district staff time and, ultimately, became so burdensome that two district employees quit their District jobs.

According to the District, Waggett also began to harass District staff. This harassment led the District Manager, Dave Tipton, to seek an anti-harassment order against Waggett. A court issued an anti-harassment order against Waggett for one year.

A year later, a hearing was held to determine whether the anti-harassment order should be renewed. The judge ultimately declined to renew the order citing the fact that Waggett had not violated the order in the previous year. Following this decision, Waggett’s attorney used the hearing to submit additional public record requests to the District. Waggett’s attorney handed Tipton public record requests in the courtroom and even had the judge acknowledge this in the official hearing record. Tipton would later argue that he never “accepted” these requests.

Following the court hearing, Waggett and Pope sued the water district alleging numerous violations of the Public Records Act (Chapter 42.56 RCW). Waggett and Pope argued that the District summarily denied requests instead of requesting clarifications; refused to accept record requests submitted through certified mail; and failed to respond to the requests submitted to Tipton at the court hearing. In early August, a Mason County Superior Court judge ruled in favor of the requestors and found that the District would be liable for the attorneys fees of the requestors and daily civil penalties. The judge will later determine the total amount due from the District.

This case illustrates that public agencies faced with harassing public record requestors may successfully obtain anti-harassment orders (or, declaratory judgments) to protect staff. Anti-harassment orders could prove to be a valuable tool in preventing requestors from interfering with public business. However, agencies should be aware that obtaining an anti-harassment order against a requestor does not relieve the agency’s obligation to respond to otherwise valid requests submitted by the requester. As this case shows, it is entirely possible that an agency can obtain an anti-harassment order against a requestor and still be found in violation of the Public Records Act.
 

On June 7, 2011, the Washington Court of Appeals remanded (for a second time) Zink v. City of Mesa to the trial court to calculate penalties against the City of Mesa for violating Washington’s Public Records Act (“PRA”). 2011 WL 2184965. Although the Court’s order came in an unpublished opinion, local governments can draw a number of lessons (and cautions) about the PRA from this case.

Washington local governments should take special note of how litigation influenced the number of penalty days assessed to Mesa; the different ways Mesa processed multiple and complex PRA requests; how Mesa responded to requests for non-existent and lost documents; how Mesa managed attorney-client privileged documents; and, how Mesa responded to requests for documents that the requestor already possessed. In this summary, we use the term “city” rather than “agency” or “local government,” for convenience only.

Lessons on How Litigation Affects Penalty Day Calculations

Q: If a city prevails at trial on withholding a record and later loses on appeal, is the city subject to penalty days for the period between the trial court order and the appellate court reversal?

A: Yes, the days between the trial court judgment and the appellate court reversal are included in the final penalty calculation. 2011 WL 2184965 at *6.

Q: Is a city subject to penalty days after a trial court orders a release of documents under the PRA?

A: Yes, a city is subject to additional PRA sanctions for delaying release of a public record after a court order. Id. Requestors may bring an additional PRA action to recover these penalties. Cities are also subject to Washington’s contempt laws for not complying with court orders. Chapter 7.21 RCW.

In the Zink v. City of Mesa litigation, the Zinks may still have a cause of action under the PRA or a remedial action for contempt of court under RCW 7.21.030 if Mesa did not properly comply with the trial court orders to produce records.

Q: Is a city ever subject to penalty days for the 5-day reply period under RCW 42.56.520?

A: Yes, if a city improperly denies a request within the 5-day reply period, then the records are improperly withheld for every day in which the record request was denied, including any portion of the 5-day reply period. Id. at *7-8.

Lessons on Managing Multiple and Complex PRA Requests

Q: Can requestors ask for “all public records” relating to a specific city matter?

A: Yes, if a city receives a request for “all public records” with respect to a specific matter, then the city’s failure to produce a document related to that matter constitutes a “silent withholding” in violation of the PRA. Id. at *8.

Ms. Zink’s request for all public records regarding the Zink’s property was sufficient to put Mesa on notice that a complaint issued against the Zink’s property was included in Ms. Zink’s request. Mesa’s failure to produce the requested complaint amounted to a “silent withholding” of public records in violation of the PRA.

Q: Is a city liable for separate penalties for every document in a request?

A: Sometimes, trial courts have discretion to group documents as a single request based on the city’s culpability as opposed to the size or volume of records requested. Id. at *9.

Penalties better serve the PRA’s purpose when they are directed at agency culpability as opposed to size of request. In Zink v. City of Mesa, the Zink’s request for an audio tape recording, meeting minutes, and rules and regulations adopted in a November 13, 2002 meeting were grouped together as one PRA request.

Q: If a city wrongfully redacts a record, then is it subject to penalty days for withholding the record starting from the date of the original request?

A: No, if a city wrongfully redacts records, then the penalty period only begins on the day that the city was required to produce the record and not on an earlier date. Id.

Mesa properly withheld records for 30 days in order to assemble them in response to the Zink’s multiple requests. However, the City violated the PRA when it provided wrongfully redacted copies on the date that it was required to provide unredacted copies.

Q: If a city receives a request that is substantially the same as a prior request, but only for a different time period, then is this a separate request for penalty purposes?

A: Not necessarily, the trial court has discretion to group the requests together as essentially one continuous request for penalty purposes. Id. at *10.

The Zinks requested all correspondence between Mesa and Mesa’s city attorney and also between Mesa and the Municipal Research and Services Center. A second request for subsequent communications between the same parties was treated as a single PRA request because they were for “essentially the same documents.”

Q: Can a city delay production of easily producible ordinances, board rules, and adopted regulations beyond the 5-day reply period?

A: Sometimes, a city is occasionally justified in delaying the production of easily producible records if it can show that the requested items accompany multiple other requests for documents that are time consuming to produce. Id.

Mesa properly delayed a request for minutes and adopted rules and regulations from a city council meeting when the request also included telephone logs and 18 residential files.

Q: Can a city direct a requestor to submit requests directly to the city attorney?

A: No, when a city directs a requestor to inquire with another official in the city, this referral is effectively a wrongful denial and penalties accrue beginning on the date of the denial. Id. at *11.

Directing Ms. Zink to contact the city attorney for a specific document was effectively a wrongful denial of a record and Mesa’s penalties accrued beginning on the date Ms. Zink was directed to the city attorney.

Q: Can a city limit viewing files to a one hour period during the day?

A: No, limiting Ms. Zink’s access to files for one hour on one day subjected Mesa to the maximum $100 penalty for that day. Id. at *11-12.

Q: Can a city delay production of a file once it is made available for viewing?

A: No, once a file is reasonably available for viewing, a city is subject to per-day penalty amounts for later restricting access to those files while also failing to provide copies of those files. Id.

Q: Can a city treat a requestor who asks for one ordinance differently than a requestor who asks for the same ordinance along with numerous other records?

A: Sometimes, when a request for a simple document, like an ordinance, is submitted with several other requests, the production of that ordinance may be delayed even if other requestors are provided that ordinance on the day of their request and even if it was the city that required the request to be put in writing. Id. at *14.

Ms. Zink’s request for a copy of a city ordinance was properly delayed because it accompanied multiple other requests even though her sister-in-law received the same ordinance on the same day she requested it.

Q: If a city groups multiple request together in writing, then will this be treated as one records request?

A: Not necessarily, although a city may decide to group requests together, trial courts have discretion to separate these requests for determining the number of penalty days. Id. at *15.

Mesa’s error in withholding several documents did not entitle it to have those documents grouped together as one request.

Lessons on Responding to Requests for Lost or Non-Existent Documents

Q: Is a city subject to penalties for failing to produce records that do not exist when the city is required by a separate statute to create that record?

A: No, even if a city is required by statute to generate a particular writing, like minutes, the PRA does not state that an agency’s violation of independent statutory duties to prepare records is also a violation of the PRA. A city is subject to PRA penalties only when the requested record actually exists. Id. at *12-13.

Q: If a requestor submits multiple requests at the same time, can a city treat the requests together and delay their production until all of the records are complied?

A: Yes, high volume requests may be assembled and released together. Id. at *13.

Q: Does a city need to respond to a request for documents that do not exist by stating that the documents do not exist?

A: Not necessarily, a city has no duty to state that records do not exist at the time of a particular request. Id. at *14. The PRA does not compel production of records that do not exist.

Mesa’s response that it would take 30 days to produce a record that it knew did not exist was not a violation of the PRA. The city intended to adopt the requested procedures within that time and then released them once they were enacted.

Q: Can a city delay production of ordinances and resolutions that accompany requests for non-existent documents?

A: Yes, a delay is reasonable when a city attempts to provide all of the legislative enactments together when they were requested at the same time, including enactments that do not yet exist. Id.

Lessons on Producing Attorney-Client Privileged Documents

Q: If a city claims that a document is exempt from disclosure as an attorney-client communication, is it required to justify that exemption?

A: Yes, to assert attorney-client privilege for public documents, the PRA requires cities to provide an exemption log detailing identifying information about the document and a brief explanation of how the statutory exemption applies to each specific record. Id. at *16.

Q: If a city inadvertently discloses attorney-client privileged documents, does this waiver subject the city to penalties for withholding public records?

A: No, accidental release of attorney-client privileged documents does not subject a city to penalties for withholding those records for the period in which they were properly under the attorney-client privilege. Id. at *16-17.

Lesson on Losing Original Documents

Q: If a city loses a signed version of a document, but produces a substantially similar document that is unsigned, then does the unsigned version comply with the PRA?

A: Yes, if the unsigned copies provide substantially the same information as what would have been provided with the signed copies. Id. at *18.

When Mesa provided the unsigned copies of minutes, it substantially fulfilled the purposes of the PRA by providing the Zinks full access to information concerning the conduct of government.

Lesson on the Statute of Limitations for PRA Claims

Q: Does the 5-year statute of limitations on bringing a PRA action limit PRA per-day violations to 1,827 days (5 years)?

A: No, the 5-year statute of limitations only limits the scope of PRA claims to violations that occurred within five years prior to filing the complaint. Id. Violations that occurred during the 5-year limitation period, however, will be penalized for each day that the requestor was denied the right to inspect or copy the public record. Similarly, the 1-year statute of limitations in RCW 42.56.550 does not limit the number of per-day violations that can accrue. Id.

Lessons on Documents Released Prior to PRA Litigation and
Documents Already Possessed by Requestors

Q: If a city fails to comply with the PRA for a period of time, but then complies prior to the requestor filing suit, is the city still liable under the PRA?

A: Yes, a city is liable for PRA violations regardless of whether PRA litigation is needed to compel the city to produce requested documents. Id. at *19.

Q: If a city knows that the requestor already has the document that is being requested, does the city still need to produce that document upon request?

A: Yes, a city is subject to penalties for not producing public records regardless of whether the requestor already possesses those records. Id.

Ms. Zink requested copies of correspondence from the Zinks to the City of Mesa. Mesa’s knowledge that Ms. Zink already possessed the requested documents was not a defense to withholding those documents because the date-stamped copy of a correspondence between the Zinks and Mesa is defined as a public record.

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.”
 

In a previous published case, Division III of the Court of Appeals had overturned the initial trial court decision that found that Mesa had substantially complied with many of the Zink’s public disclosure requests. Zink v. City of Mesa, 140 Wn. App. 328, 166 P.3d 738 (2007). In that case the Court of Appeals had emphatically stated: “We hold that ‘substantial compliance’ is an incorrect standard by which to judge an agency’s compliance with its statutory duties. We further hold that the record does not support the trial court’s determination that the Zinks unlawfully harassed the City officials or that the City met its obligations under the PDA.”

The facts of this case provide some insight into the continuing controversy. As the Court of Appeals took pains to note in both cases, Ms. Zink was both a former council member and mayor of Mesa, who after leaving office became a self-styled “watch dog” over city actions, particularly after the city improperly denied her request for a building permit. By way of additional background, it should also be noted that the 2010 census reports that the City of Mesa (located in Franklin County) has a population of 489.

Upon remand from the 2007 decision, the trial court assessed penalties and attorney fees for violating the Public Records Act totaling $246,000. Both sides then appealed the amount of the penalties and the basis on which they were adopted. In this appeal, the Court of Appeals makes detailed rulings on many of the issues on appeal, but then remands the case back to the trial court again for a new determination of penalties based on the 16-factor test (7 mitigating factors and 9 aggravating factors) set out in the State Supreme Court’s intervening decision in Yousoufian v. Office of Ron Sims, 168 Wn.2d 444, 229 P.3d 735 (2010).

One of the individual rulings in the unpublished decision highlights an important aspect of Washington’s Public Records Act. That is, a government is under no obligation – under the PRA – to produce documents that do not exist. The Zinks sought penalties under the PRA for the failure of the city to produce minutes of meetings that the city was required under a statutory obligation to prepare. But the Court rejected that claim. “Mesa admittedly violated separate statutes requiring it to prepare draft minutes of the Board meetings for public review. RCW 35A.39.010  RCW 42.32.030. But the PRA does not state that an agency’s violation of independent statutory duties to prepare records is a violation of the PRA.”
 

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.
 

For application of Exemption 4, the 9th Circuit requires a government agency to demonstrate the information to be withheld is “(1) commercial and financial information, (2) obtained from a person or by the government, (3) that is privileged or confidential.” (Watkins v. U.S. Bureau of Customs and Border Protection, No. 09-35996, 5/6/11). The Court found that the Notices contained “plainly commercial information, which discloses intimate aspects of an importers business such as supply chains and fluctuations of demand for merchandise.”

But, under a separate statute, Notices must be disclosed to a trademark owner that may be aggrieved by the purported violation by the importer.

When disclosure is made to a trademark owner, the government imposes no restriction on the owner’s use of the information in the notice. He can freely disseminate the notices to his attorneys, business affiliates, trade organizations, the importer’s competitors, or the media in a way that would compromise the purportedly sensitive information about an offending importer’s trade operations. This no-strings-attached disclosure thus voids any claims to confidentiality and constitutes waiver of Exemption 4. FOIA accordingly creates an obligation for the government to disclose the requested documents.

In addition to other specific exemptions from disclosure, the Washington Public Records Act contains a similar provision that allows an agency to withhold “financial, commercial and proprietary information.” R.C.W. 42.56.270. That exemption from disclosure also includes:

proprietary data, trade secrets, or other information that relates to: (a) A vendor’s unique methods of conducting business; (b) data unique to the product or services of the vendor; or (c) determining prices or rates to be charged for services [for certain social and health services and health care activities].

R.C.W. 42.56.270(11).

The Uniform Trade Secrets Act, Ch. 19.108 RCW, also provides exemptions from disclosure under the Public Records Act through the “other statute” provisions of RCW 42.56.070(1) (formerly RCW 42.17.260(1)). Progressive Animal Welfare Soc’y v. University of Washington, 125 Wn.2d 242, 262, 884 P.2d 592 (1994).

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.”
 

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).

(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.
 

Greg Schulz, the director of academic freedom for the American Association of University Professors is quoted as asserting “We think this will have a chilling effect on academic freedom. We’ve never seen FOIA requests used like this before.”

In the State of Washington, however, the issue of academic freedom v. freedom of information has long been decided in favor of the freedom of information. In 1994 the Washington Supreme Court held that documents regarding research proposals for primate experiments that didn’t fall within specific statutory exemptions were subject to disclosure under the State’s Public Records Act – despite the contention of the University of Washington that academic freedom protected those records from disclosure. Progressive Animal Rights Society (PAWS) v. University of Washington, 125 Wn.2d 243, 884 P.2d 592 (1994).

In PAWS, the Washington Supreme Court directly addressed the University’s argument that “the grant proposal should be exempt in its entirety because disclosure of a researcher’s preliminary ideas violates a putative constitutional privilege of academic freedom.” Rejecting that argument, the Court held that neither the popular initiative that first adopted Washington’s Public Record Act nor the legislature in later amendments had created an exemption from the Public Records Act for academics. Further the Court noted that, “Even assuming there were plausible grounds for doing so, it would be difficult to grant special First Amendment protection to public university employees while denying it to other state employees.”

On the other hand, both the trial court and the Supreme Court held that information in the proposal that would reveal research hypothesis, data, valuable formula and the like should be redacted from the documents as they are covered by exemptions to the Public Records Act. The Court also excluded the peer review “pink sheets” from disclosure, as they were documents reflecting a deliberative process for an unsuccessful proposal and thus exempt under the “deliberative process” exemption. But, the Court also noted “Once the proposal becomes funded, it clearly becomes ‘implemented’ for purposes of this exemption and the pink sheets thereby become disclosable.”
 

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).
 

In 2005, Alliance, a nonprofit government accountability group, made several public records requests seeking documents they believed would expose alleged nepotism in County hiring processes. In response to Alliance’s request, County officials checked the hard drives of the computers its employees were currently using, but did not search computers that were no longer in use (no matter how recently the computers had been retired). The hard drive of a particular computer that may have held the requested information was wiped clean and thereafter, despite Alliance’s outstanding records request, the retired computer was not searched. The parties disagreed as to whether the record did exist on the hard drive, whether the County conducted a proper search, whether the County violated the PRA, and if so, the appropriate level of penalties. The Court of Appeals held that the County did violate the PRA by failing to conduct a “reasonably adequate” search for the complete electronic information requested, and remanded the case to the trial court to determine the resulting penalties, costs and fees.

As reported by the Spokesman-Review, the Supreme Court will revisit these issues in depth.  In particular, the Justices will be asked to decide what constitutes a “reasonable” search of such electronic records in a world where computers are constantly upgraded, replaced and repurposed.  Must agencies regularly search old computers?  All electronic storage systems?  How soon can a hard drive be wiped?The Court will also face the issue of the financial burden on the County.  For example, the case raises the question of whether $100 daily penalties should keep accruing or whether the clock should have stopped running on any penalties at the time the hard drive was wiped clean.

Neighorhood Alliance comes on the heels of a another Washington State case addressing the intersection of electronic discovery and the PRA.  See O’Neill v. City of Shoreline, 240 P.3d 1149 (2010) (holding that metadata is subject to disclosure as a public record).  We’re likely to see more cases on this topic as agencies attempt to determine their responsibilities under the Act as they incorporate new practices and technologies in the digital age.

In 2010, the New York Times reported on how the RIA was leveling the playing field between corrupt governmental bureaucrats and India’s poor.  Right-To-Know Law Gives India’s Poor a Lever, New York Times, June 28, 2010. The piece included a number of stories illustrating how India’s poorest citizens used the RIA to spur governmental bureaucrats into action.  One story involved an impoverished mother of three who had been waiting for four years to receive a housing assistance grant. After seeing her well-to-do neighbors receive grants ahead of her, the mother used the RIA to request records detailing who had received grants in her community and why. Days after submitting the request, governmental officials approved her grant. In another village, community members became fed up with a public health care worker who rarely showed up to staff the community health clinic. The citizens utilized the RIA to request copies of the clinic’s attendance records. With her attendance record revealed, the health care worker started showing up every day. Success stories like these have provided hope to good governance advocates that India is moving in the direction of open and transparent government.

However, on January 22, 2011, the New York Times published a follow-up story showing how opponents of open government have begun using violence to intimidate and silence requesters. High Price for India’s Information Law, New York Times, January 22, 2011. The article described one case where a requester was murdered after uncovering evidence about an illegal mining operation that may have involved government officials. The author estimated that at least a dozen requesters have been murdered since the RIA was enacted in 2005 and scores of others have been beaten and harassed. This violence is apparently having a chilling effect on many would-be activists. 

Time will tell whether India’s nascent open public records policies can survive this backlash. 

Fisher, an inmate of Washington’s Monroe Corrections Complex, alleged that a fellow inmate had assaulted him in the prison law library. To support this allegation, Fisher asked for surveillance tapes of the library. The Department refused, citing RCW 42.56.240(1) which exempts “specific intelligence information compiled by . . . penology agencies. . . the nondisclosure of which is essential to effective law enforcement.” The Department argued that the tapes, if disclosed, could allow the prisoners to learn the capabilities and the limitations of the prison’s extensive camera surveillance system, and thereby “allow inmates to determine weaknesses and exploit those weaknesses by assaulting other inmates or committing crimes and prison infractions.”

The Court of Appeals found the unrefuted affidavit of the Department’s director of prisons division persuasive, and determined that “Intelligence information provided by video surveillance systems therefore falls squarely within the core definition of ‘law enforcement.’” The nondisclosure of the surveillance tapes was thus found by the Court to be “essential to effective law enforcement."