On March 2, 2015, The New York Times reported that Hilary Clinton, during her tenure as Secretary of State, may have violated federal regulations by using her personal e-mail to conduct government business. The report says that Clinton aides took no measures to preserve the personal emails on the department servers, which is required by the Federal Records Act.
Washington Supreme Court Orders Attorney Fees And Costs To Requester For Agency's Violation Of PRA's "Brief Explanation" Requirement
The Public Records Act (PRA) requires that when an agency withholds or redacts records, its response “shall include a statement of the specific exemption authorizing the withholding of the record (or part) and a brief explanation of how the exemption applies to the record withheld.” RCW 42.56.210(3). In a 5-4 decision, the Washington Supreme Court held in City of Lakewood v. Koenig that an agency’s violation of this requirement entitles the requester to attorney fees and costs, regardless of whether the records were properly withheld.
In this case, David Koenig had requested records from the City of Lakewood relating to certain police officer incidents. In its response, the city redacted, among other things, driver’s license numbers from the records, citing to various statutory provisions without additional explanation. In a majority opinion written by Justice Steven González, the court found that the city’s response violated the PRA because the city either failed to cite a specific exemption or failed to explain how the particular statute applied to the redacted driver’s license numbers in the specific records produced. As a result, “the burden was shifted to the requester to sift through the statutes cited by the city and parse out possible exemption claims.” Opinion at 7-8. Because the PRA provides that costs and reasonable attorney fees shall be awarded to a requester for vindicating “the right to receive a response,” the court held that Koenig was entitled to his attorney fees and costs, including those on appeal. Id. at 10-12.
In explaining its decision, the court observed that the level of detail an agency needs to provide will depend on both the nature of the exemption and the nature of the document or information. For example, if it is clear on the face of a record what type of information has been redacted and that this type of information is categorically exempt, citing to a specific statutory provision may be sufficient. But for other exemptions, including the “other” statute exemptions that the city cited, “additional explanation is necessary to determine whether the exemption is properly invoked.” Id. at 8.
In a dissenting opinion joined by three other justices, Chief Justice Barbara Madsen asserted that the majority’s decision imposed an additional burden on agencies to provide enough explanation to prove its claimed exemptions are correct, which the PRA does not require. The dissent distinguished the facts in Sanders v. State, 169 Wn.2d 827 (2010), observing that, here, “the city explained what information it actually withheld—driver’s license numbers—and it explained why—the cited statutes.” Dissenting Opinion at 2. While the dissent acknowledged that attorney fees may be warranted if an agency fails to identify a record or give its reason for withholding, the dissent would have held that attorney fees are not independently warranted if the agency has identified the record and given its reason for redacting or withholding the record.
In Gronquist v. State of Washington, Department of Corrections, Division II of the Court of Appeals held that RCW 42.56.565(1) prohibits an award of PRA penalties to a prison inmate serving a criminal sentence absent a showing of bad faith by the agency who denied the request.
Prison inmate Gronquist had requested several records from the Department of Corrections, including certain surveillance videos of the prison where he was incarcerated. DOC withheld the surveillance videos as exempt investigative records essential to effective law enforcement under RCW 42.56.240. DOC also inadvertently failed to disclose one page in a 96-page production of documents, which it later provided to Gronquist upon discovery of the error. The trial court awarded penalties of $15 per day ($260 total) to Gronquist, but found no bad faith on DOC’s part. Gronquist appealed on several grounds.
Although neither party advanced the argument, the court rejected Gronquist’s appeal of the PRA penalties on the ground that RCW 42.56.565(1) barred any penalties to a prison inmate absent a showing of bad faith. Because the trial court found no bad faith by DOC, Gronquist was not entitled to any PRA penalties, although the penalties were ultimately left intact because DOC had not cross-appealed the award. The court also confirmed that the statute applied to Gronquist’s lawsuit because “final judgment” (broadly defined to include exhaustion of appellate review) had not been entered when the statute took effect in 2011.
With respect to the prison surveillance videos, the court observed that such videos fall squarely within the core definitions of “law enforcement” under RCW 42.56.240. The court further held that DOC met its burden of showing that the nondisclosure was “essential to effective law enforcement” by submitting the affidavit of DOC’s Director of Prisons, who explained that providing inmates access to surveillance videos would allow them to exploit weaknesses in the surveillance system. The court concluded that the videos were properly withheld as exempt from disclosure under the Public Records Act.
In the remainder of the opinion, which was unpublished, the court rejected Gronquist’s other arguments as insufficiently supported, abandoned on appeal, or moot. The court also reiterated prior cases stating that the PRA does not require public agencies to research or explain public records, or to create records that do not exist.
In Freedom Foundation v. Gregoire, the Washington State Supreme Court holds that separation of powers in the State Constitution creates a qualified executive privilege to protect certain gubernatorial deliberations.
Although Washington’s Constitution does not contain a formal separation of powers provision, the Court recognizes the doctrine based on the State’s multi-branch form of government. One branch will violate separation of powers if its activity “threatens the independence or integrity or invades the prerogatives of another.” Executive privilege preserves the integrity of the executive branch by protecting the chief executive’s access to candid advice and robust decision making.
But, the privilege is not unlimited. It extends only to communications made to inform policy choices that are authored or solicited by the governor or by gubernatorial aids with significant responsibility for formulating policy advice for the governor.
In order to assert the privilege, the governor must provide a privilege log that lists the documents sought to be protected, the author, the recipient, and a description of the document’s subject matter. Once the governor provides a sufficient privilege log, the communications are presumptively privileged. In order to overcome the privilege, the requestor must assert a particularized need for the requested materials. Only after the requestor demonstrates particularized need will a trial court determine whether that need outweighs the public interest served by protecting gubernatorial deliberations.
Here, Governor Gregoire asserted the privilege over five documents and part of a sixth document in response to a request by Freedom Foundation. Because Freedom Foundation refused to assert a specific need for the requested documents, the Court held that it could not compel the governor to disclose those documents.
In Gronquist v. Washington State Department of Licensing, the Washington Court of Appeals, Division II, held that the Department of Licensing improperly redacted several items from a business license application prior to disclosure. Citing RCW 42.56.070(1), Licensing argued that the home address, home telephone number, business telephone number, income information, employee information, banking information, and marital status information from a business license application were all exempt from disclosure under three “other statutes” incorporated into the PRA, among other exemptions.
The Court of Appeals disagreed. First, the redacted information was not protected tax information under Department of Revenue statutes. RCW 82.32.330 (return or tax information) did not apply to the redacted information because the statue, in fact, authorizes Revenue to disclose “tax information that is maintained by another Washington state or local governmental agency….” Because Licensing (another agency) held the application, the information was not protected tax information under the Revenue statute. Although the PRA itself also exempts personal tax information collected in connection with an assessment or tax, this exemption did not apply because business license applications do not provide financial information for tax purposes.
Second, Employment Security Department statutes also did not exempt the redacted information. RCW 50.13.020 (employer information or records) did not exempt the applicant’s marital status information because the Employment Security statute exempts only information “obtained by” Employment Security, and the PRA itself limits the scope of this statute to records “maintained by” Employment Security, RCW 42.56.410. Here, Licensing, and not Employment Security, maintained and obtained the business license application. Additionally, the Employment Security statute did not apply because the applicant, operating as a sole proprietorship, was not an “employer.”
Third, under a similar line of reasoning, the Court held that Department of Labor and Industries statutes did not apply. RCW 51.16.070 (employment information) did not exempt information in the application because the applicant was a sole proprietorship, did not have employees, and was not an “employing unit” under the statute.
The Court also held that Licensing failed to provide Gronquist with a proper and timely explanation for its redactions under RCW 42.56.210(3), initially and throughout every stage of litigation. First, Licensing failed to provide any explanation for the redactions in its initial production. Second, the explanation provided by Licensing after Gronquist filed this lawsuit failed to specify what information had been redacted, which exemptions applied to each redaction, or how those exemptions applied. Third, Licensing’s second explanation submitted in connection with in camera review also failed to link specific exemptions to specific redacted items. Finally, on appeal Licensing relied on different exemptions and only sought to explain some of the redactions.
The Court also noted that Licensing took eight business days to respond to Gronquist’s request, making its initial response three days late. Licensing argued that it received Gronquist’s letter on July 31, 2009, that its letter response to Gronquist was dated that same day, and that Gronquist did not controvert these facts in the record. Rejecting these arguments, the Court noted that Licensing submitted a declaration of one of its senior administrators stating that the office received Gronquist’s request “[o]n or about July 21, 2009.”
Although the PRA does not authorize a freestanding penalty for an agency’s failure to provide explanations for withholding records, failure to explain amounts to a “silent withholding” that may aggravate the penalty for wrongfully withholding a record. The Court recommended that these were proper considerations for determining the penalty amount on remand in order to “discourage improper denial of access to public records.”
Responding to complaints about Dr. Cornu-Labat, Quincy Valley Hospital conducted two ad hoc investigations concerning separate allegations of intoxication and incompetency to practice medicine. The ad hoc investigations failed to uncover enough evidence to substantiate either claim. However, hospital administrators “remained concerned” for the Doctor, placed him on paid administrative leave, and referred him to the Washington Physicians Health Program. After Dr. Cornu-Labat refused to visit WPHP, which precluded WPHP from issuing a recommendation on his fitness to practice medicine, the Hospital fired him.
Dr. Cornu-Labat filed separate Public Records Act requests for documents relating to both investigations. The Hospital denied the first request, claiming the Hospital was not an agency subject to the PRA and that the records relating to the intoxication investigation were “investigative” and exempt under RCW 42.56.240. His second, third, and fourth requests sought documents from both investigations, and the Hospital eventually denied those requests under PRA exemptions specific to the healthcare industry.
The Grant County Superior Court held that the peer review exemption cited by the Hospital did not apply because under RCW 4.24.250 (and RCW 42.56.360) peer review committees must be regularly constituted and consist of professional peers. The ad hoc investigations here included non-physicians.
The Washington Supreme Court reversed and held that the plain language of RCW 4.24.250 extended the exemption to committee records of non-physician staff sitting on the committee. RCW 42.56.360 did not narrow the scope of “peer review committee” for the purposes of exempting records from disclosure under RCW 4.24.250. Because other peer review statutes allow officers, directors, and employees to sit on review committees, the Hospital’s ad hoc investigations qualified as peer review committees even though non-physicians participated.
The Court remanded on this issue to determine whether the investigations were a function of regularly constituted committees or whether the investigations were conducted by ad hoc committees not entitled to the exemptions under RCW 4.24.250. The Court also remanded to determine whether the records sought embodied the proceedings of a formal meeting of the Hospital board (or its staff or agents) concerning the Doctor’s clinical privileges and therefore exempt from disclosure under RCW 70.44.062(1)). If the records were generated during a general investigation into Dr. Cornu-Labat’s alleged misconduct, then this exemption would not apply.
Finally, the Court rejected the Hospital’s argument that the confidentiality provision of Dr. Cornu-Labat’s employment contract precluded the Doctor from requesting hospital records involving members of its medical staff. The Doctor’s identity and his employment contract were irrelevant “because the PRA states that agencies may not inquire into the identity of the requestor or the reason for the request.” Employment contracts “cannot override the PRA.”
Does a single production constitute production on an installment basis and trigger the PRA’s statute of limitations? Divisions I and II of the Washington Court of Appeals disagree.
In Bartz v. Department of Corrections, Division II of the Court of Appeals held that the PRA’s one-year statute of limitations runs even if the agency delivers only one production. In other words, a single production also means “the last production… on a partial or installment basis.” A plain reading of the statute might suggest otherwise. “Actions under this section must be filed within one year of the agency’s claim of exemption or the last production of a record on a partial or installment basis.” RCW 42.56.550(6).
Division II reasoned that a literal reading would lead to an absurd result, namely: “a more lenient statute of limitations for one category of PRA requests” after the Legislature shortened the statute from five years to one in 2005.
Yet, Division I concluded just that. In Tobin v. Worden, 156 Wn. App. 507 (2010), Division I held that the one-year statute does not apply unless the agency claims an exemption or produces records on installment. There, the agency did not claim an exemption and produced only a single document. Because a single production could not be an installment, Division I concluded that the statute did not apply.
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.
Hard Times for Hard Drives: The Washington Supreme Court Addresses the Public Records Act in the Digital Age
Once again the Washington Supreme Court will be called upon to evaluate the reach of the Public Records Act (“PRA”) in the digital age. On Thursday, January 27, 2011, the Court entertained oral argument in Neighborhood Alliance of Spokane County v. County of Spokane, No. 84108-0, a case involving Spokane County’s failure to produce missing electronic records ostensibly stored (then erased) off the hard drive of an old, retired County computer.
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.
Washington Court of Appeals Upholds Sanctions Against Disgruntled Employee for Repeated, Frivolous Public Records Requests
The Washington State Court of Appeals recently upheld the denial of a public employee’s repeated requests for an agency’s investigative records following the employee’s termination. The Court also found that the trial court did not abuse its discretion by imposing sanctions (under superior court Civil Rule ("CR") 11) on the employee for frivolous records requests. Phillips v. Valley Communications, Inc. (unpublished decision issued December 27, 2010).
The employee, Phillips, who worked at a 911 call distribution center, had complained about his supervisor, triggering agency investigations. Phillips was terminated, after a psychiatric evaluation concluded he was not fit for duty.
In response to his request for documents, Phillips received copies of his personnel and medical files and a copy of the psychiatrist’s report. However he was not given the agency’s complete investigative file, much of which the agency contended was exempt from the Washington Public Records Act (“PRA”) under attorney-client and work product privileges. Phillips then brought suit in superior court challenging the agency’s compliance with the PRA. Following in camera review, the trial court issued several orders, none of which were appealed by the employee. Meanwhile, during this initial proceeding, Phillips continued to make repeated records requests to the agency for the very same documents, as well as “clarifications” of the agency’s earlier responses.
Several months later, Phillips brought a second suit claiming that the agency failed to comply with the PRA. The agency moved for injunctive relief. This time, the trial court denied Phillips’ requests, holding that they were bared by res judicata, collateral estoppel and the statute of limitations, since Philips had never appealed the final order from the first superior court proceeding. The trial court also awarded CR 11 sanctions against Phillips for his frivolous and repeated PRA requests. But, the court denied the agency’s request for an injunction under RCW 42.56.540 (enjoining examination of public records if such examination would not be in the public interest or would substantially and irreparably damage a person or vital government function). The Court of Appeals upheld the trial court’s rulings.
This decision highlights the issues courts face when balancing the open-government goals of the PRA with the reality of abusive and/or frivolous requestors. In the employment context, a PRA request can sometimes serve as an easy way for a disgruntled public employee to burden a former employer. However, CR 11 sanctions are not commonly imposed on requestors. While the Philips opinion provides limited analysis on this topic, the employee’s repeated and unsupported requests for the same information appear to be the root cause of the Court’s hard-line response. However, the Court also denied the agency’s request for injunctive relief against Phillips. The Court reminds us, once again, that exemptions to the PRA are narrowly construed; despite the inconvenience and burden imposed on an agency by a difficult requestor, the agency must still identify its reasons for withholding records and provide sufficient evidence to support its exemption claims.
Alabama Supreme Court Finds Health Care Authority Subject to the Open Records Act and Hospital Bid Materials Subject to Disclosure
The Alabama Supreme Court recently ruled that a public corporation (“Health Care Authority”) that owned several hospitals was a “local government entity” and therefore subject to the state’s Open Records Act. Tennessee Valley Printing Company, Inc. v. Health Care Authority of Lauderdale County and the City of Florence, --- So.3d ----, 2010 WL 4272678 (Ala.). Despite the Health Care Authority’s protestations, the Court found that the corporation’s assets had been accumulated through use of statutorily-authorized governmental powers, including eminent domain and issuance of tax-free bonds, and that the corporation could not sell substantially all of its assets without prior approval of an authorizing government subdivision.
Promising confidentiality to bidders, the Heath Care Authority invited bids to acquire Authority hospitals. The Court found that the documents relating to the final sale of the hospitals, including bids and a letter of intent from the winning bidder, could be disclosed under the Alabama Open Records Act. The Court noted that, “a private party cannot render public records exempt from disclosure merely by designating information it furnishes a governmental agency confidential. The right to examine these records is a right belonging to the public; it cannot be bargained away by a representative of the government.” The Court then rejected the Health Care Authority’s two proposed exemptions, finding that the exemption for recorded information received by a public officer in confidence was inapplicable, as was the exemption for records which, if disclosed, would be detrimental to the best interest of the public.
Washington’s Public Records Act (“PRA”) does not have a general exemption for bid materials. And, there is no Washington case law interpreting this issue. However, it is likely that Washington courts would come to the same conclusion as the Alabama Supreme Court. Confidentiality is not a stand-alone exemption, and bidders cannot rely on that designation to prevent disclosure of their materials. See WAC 44-14-06002 (codifying the Washington State Attorney General’s Model Rules on Public Disclosure). To prevent disclosure, records must fall under a specific PRA exemption category, such as “trade secrets” (or other statutory provisions that may limit disclosure of contract proposals). And, if portions of a record fall under one of the statutory exemption categories, an agency may still release the record with redactions.
The Seattle Times reported on the Supreme Court arguments in a dispute between the Yakima Herald-Republic and Yakima County regarding the disclosure of copies of court documents. The dispute involves the billing records of defense attorneys in a murder case that were placed under seal by a judge. The judiciary is exempt from the disclosure requirements of the Public Records Act, but in this case the County also has copies of the records, and the newspaper sought disclosure of the records from the County. At issue is whether copies of documents also located in a sealed court file are subject to disclosure under the Public Records Act. The Seattle Times article is available here.