Hard Times for Hard Drives Redux: Washington Supreme Court Announces Decision on Need to Search Hard Drives
As we reported here on January 31, the Washington Supreme Court heard argument on the reach of the Public Records Act (PRA) in the digital age. On September 29, 2011, the Court decided this case (Neighborhood Alliance of Spokane County v. Spokane County). The Supreme Court found that Spokane County violated the PRA by not searching the hard drive of a computer that had been recently used by the person who generated a specifically requested document.
The document being sought was a seating chart of the County’s Building and Planning Department where the names of the new occupants (one of whom was the son of a County Commissioner) had allegedly been placed on the seating chart some time before the employment selection process was even completed. The date that the seating chart was first created was therefore crucial. But the County made no effort to look for the document on the hard drive of the old computer just recently used by the person who had generated the chart. The Court held that a search of the digital hard drive on the old computer was mandatory in these circumstances.
Not only had the County not searched for electronic records that were requested where those electronic records could easily have been searched, but the County later refused to answer interrogatories about its actions in the PRA lawsuit eventually brought by the Neighborhood Alliance. In perhaps the most far reaching part of its decision, the Supreme Court held that a PRA lawsuit is like any other, and the defendant agency must respond to reasonable discovery requests, including interrogatories and depositions, unless it is first able to secure a protective order from the court.
In other parts of the case, the Supreme Court held that (1) the remedial penalties of the PRA are triggered when the agency fails to disclose and produce records, and any later release of the documents only serves to stop the clock, but not eliminate, the daily penalties; (2) no causation is required to prevail in a PRA lawsuit – subsequent events and subsequent disclosure do not affect the wrongfulness of the agency’s initial failure to disclose the documents; (3) when the trial court finds that the PRA has been violated, daily penalties are mandatory, and only the amount is subject to the trial court’s discretion; (4) the fact that the requestor of documents may already have a copy of the documents does not relieve an agency of the obligation to produce those same documents in response to the request; and (5) there is always an obligation to “disclose” the existence of requested documents, even if there is an exemption from an obligation to “produce” the documents.
