Case Law Update: "fullest assistance," redactions for effective law enforcement, disclosure of non-agency phone logs
The Washington Court of Appeals issued three notable Public Records Act decisions in the past few days. In Andrews v. Washington State Patrol, Division III held that an agency that fails to comply with self‑imposed disclosure deadlines does not violate the PRA if the agency acts diligently to produce the requested records. The specific records request was complex, seeking audio recordings of third‑party telephone conversations protected by attorney‑client privilege. In order to preserve confidentiality, the State Patrol developed a method to identify responsive records from over six months of recordings without actually listening to the recorded conversations. In the process, the State Patrol missed self‑imposed disclosure deadline estimates without notifying the requestor that it needed additional time to compile the records. Facing 1,000 additional public records requests at the time, the Patrol ultimately disclosed the records in less than 90 days. The Court held that the PRA’s requirement that agencies provide a “reasonable” estimated response date is not a requirement for an “exact” estimate and that the Patrol’s failure to meet its self‑imposed deadlines or to notify the requestor that additional time was needed did not violate the PRA’s “fullest assistance” provision.
In Haines‑Marchel v. Department of Corrections, the requestor sought internal investigation documents from the Clallam Bay Corrections Center. Relying on those documents, prison officials placed an inmate on “dry cell watch” in order to monitor the inmate for suspected contraband. The documents detailed allegations by three separate named inmate informants. Citing an exemption for sensitive information contained in law enforcement records, RCW 42.56.240(1), the Department released the documents but redacted the informants’ names and identifying numbers, the details of their allegations, and all information about their reliability as informants. Division II of the Court of Appeals agreed with these redactions, holding that releasing this investigative record information would undermine effective law enforcement at correction centers. Informants identified in the documents could be subject to retaliation and future informants would be “chilled” against providing information to Department officials. Similarly, the Department properly redacted pre‑printed material in the documents because those materials detailed the Department’s methods of investigation. Releasing this intelligence information would aid inmates in crafting and disguising false or deceptive accusations. However, the Court also held that other information was improperly redacted. The accused inmate’s name and assigned number, the specific rule he allegedly violated, and the investigating officer’s signature in the documents were not similarly exempt.
Last week in Nissen v. Pierce County, Division II held that text messages sent and received from a government employee’s private cell phone are public records if they relate to government business. Similarly, portions of call logs that track a government employee’s private, non‑agency cell phone could be public records for those calls that relate to government business. The more difficult question was whether the agency “prepared, owned, used or retained” the phone logs. Unlike the text messages, which were prepared and used by the employee as a government official, the cell phone logs were created by a private cellular provider and delivered to the employee in his private capacity. Accordingly, the call logs might not be “used” or “retained” by the agency even though the phone itself was used for government purposes. The Court remanded for the trial court to determine this question after developing the record. Arguably, the Court avoided a fundamental issue that could have been resolved as a matter of law: “we do not reach the question of whether [the employee’s] personal cellular phone call logs became ‘public records’ when he delivered them to the prosecutor’s office for the agency to redact.”