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In another of a series of prisoner Public Records Act (PRA) requests in the State of Washington, a Court of Appeals has affirmed the trial court’s denial of a prisoner’s claims that (1) he should be able to review documents to see if there are none, and (2) he should be able to have the medical records of his victim. Simpson v. Okanogan County (unpublished opinion). (See previous 2011 blogs relating to prisoner related public records requests posted on January 20 and January 28.)

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Although this is an unpublished opinion, the Simpson decision cites useful Washington precedent related to the two issues noted above: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.”
 

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The March 30 edition of the New York Times reports that a research group in Michigan has made a public records request of the University of Michigan, Michigan State University and Wayne State University for any e-mails involving the Wisconsin labor turmoil, including any e-mails with reference to Rachel Maddow – the MSNBC talk show host.

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.”
 

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A recent article in USA Today is headlined “iPads Saving Cities Paper Costs.” The story focused on the cost savings that may result from the use of iPads for internal as well as external communications of cities. The difficulty, as noted by a spokesperson for the Virginia Coalition for Open Government, is the communications on iPads (or iPhones and similar devices) do not necessarily create a record. The Coalition spokesperson was quoted by USA Today as identifying a critical issue in many states, including Washington: “Records generated are subject to disclosure, but we don’t have a mechanism for getting those records from an iPad.”

The State of Washington, like many states, broadly defines public records. The conduct of government business, whether by letter, email, text or other electronic message, may constitute a public record and governments are responsible for maintaining policies to assure public access to such records. One approach to record management is a requirement that a copy of messages relating to government business be sent to a government server.

The Washington State Office of the Secretary of State, applying that state’s Public Records Act, reminds Washington’s governments that the conduct of government business using iPads or iPhones does give rise to a public record of that communication and is to be kept consistent with the government’s record retention policy.

For additional assistance in this regard, see the Secretary of State website at:
http://www.sos.wa.gov/archives/RecordsManagement/ and recordsmanagement@sos.wa.gov.

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