Local Open Government Blog : Open Government Law : Foster Pepper Law Firm : Northwest, Seattle, Spokane, Portland Lawyer & Attorney

The attached news report from Port Angeles illustrates the problems of forgetting that joint agencies created by a combination of local governments are generally subject to the Open Public Meetings Act, to the same extent as the founding agencies themselves. Port Angeles pool director choice to be a 'do-over; Open Meetings Act is factor

In this case the board of a Pool District acted to hire a new director in a closed session after interviews. The Pool District was created by the City of Port Angeles and Clallam County The District Board apparently overlooked the Open Public Meetings Act (Chapter 42.30 RCW; “OPMA”) when it did so. The solution was to dry off, step back from the edge and dive anew into the hiring process – this time in public.

This circumstance serves as a needed reminder that new, combination agencies created by public agencies are also governed by the Open Public Meetings Act. While the definition section of the OPMA (RCW 42.30.020) does not specifically include an agency created by two or more public agencies, it does include language that covers “[a]ny subagency of a public agency which is created by or pursuant to a statute, ordinance or other legislative acts. . . .” RCW 42.30.020(c).

Washington courts have broadly interpreted both the OPMA and the Public Records Act (Chapter 42.56 RCW), as the legislation for both acts directs. An example of the breadth of this interpretation is Telford v. Thurston County Board of Commissioners, 95. Wn. App. 149, 974 P.2d 886 (1999). In Telford, the Court of Appeals held that the Washington Association of Counties and the Washington Association of County Officials were both public agencies for purposes of the Campaign Finance part of the Public Records Act. This case gave rise to what has come to be know as the “Telford test” for determining what is a public agency: (1) whether the entity performs a public function; (2) the level of government funding; (3) the extent of government involvement or regulation; and (4) whether the entity was created by government.

Here, the Pool District meets each of those four parts of the “Telford test.” [See, for example, Clarke v. Tri-Cities Animal Care & Control Shelter, 144 Wn. App. 185, 181 P.3d 881 (2008), applying the “Telford test, to hold that the Animal Shelter – even though a privately run corporation – was a public agency for purposes of the Public Records Act.] The OPMA therefore applies to the Pool District, and a public reconsideration of the District’s hiring decision was the right thing to do.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

On September 16, 2010, the Washington Supreme Court issued a comprehensive PRA decision in a case brought by one of its own. Sanders v. State, _____Wn.2d____, 2010 WL 3584463.

Since Justice Sanders of the Washington Supreme Court was the appellant, he recused himself, as did Justice Alexander. The Supreme Court decision was unanimous, authored by Justice Stephens.

The case involved Justice Sanders’ request for all documents held by the State in relation to his visit to McNeil Island. That visit resulted in a subsequent disciplinary proceeding against the Justice. Justice Sanders demanded that the Attorney General’s Office (AGO) release numerous additional documents the AGO had withheld as exempt. The Justice also sought the release of all the documents on grounds that the AGO had waived any exemption by not strictly complying with the PRA requirement that the government agency “explain” the basis for any claimed exemption. Justice Sanders also asked for penalties and attorney fees under the Act.

The trial court in Thurston County ruled in favor of Justice Sanders on some, but not all his claims and assessed a monetary penalty of $55,442.12 against the AGO for withholding some documents. Justice Sanders was also awarded 37.5% of his attorney fees. The Supreme Court essentially affirmed the trial court decision – but in a wide ranging opinion of its own.

The aspect of the ruling that will probably have the most far-reaching effect on Washington agency responses to public records requests is the Supreme Court’s ruling that an agency must not only specify the exemption on which the agency relies, but also provide for each document a “brief explanation of how the exemption applies to the record withheld.” Just specifying the exemption, the Court reasoned, would make the explanation requirement of RCW 42.56.210(3) superfluous.

The Court, however, did not agree with Justice Sanders that the failure of the AGO to adhere to this explanation requirement acted to waive the exemption. But it did affirm the trial court’s addition of a $3 per day penalty – in addition to the $5 per day underlying penalty – for not providing the explanation. The Court also ruled that the additional time when documents are withheld because of pending litigation, counts as additional days of penalty. The Court noted that those additional days in court are days, just like any other, where the requestor does not have access to documents that should have been released.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

David Koenig, a regular plaintiff in Public Records Act cases, sought certain records from Thurston County. The records were a Victim Impact Statement and a Special Sex Offender Sentencing Alternative (SSOSA) evaluation. The documents are used in evaluation and sentencing of sex offenders.

The trial court ordered the documents sealed. But Koenig’s request had been sent to the Prosecutor’s Office, and not to the court. The Prosecutor’s Office denied disclosure under RCW 42.56.240(1), which exempts from public inspection and copying,

“specific investigative records compiled by investigative, law enforcement, and penology agencies….the non-disclosure of which is essential to effective law enforcement or for the protection of any person’s right to privacy."

The Washington Court of Appeals ruled, on April 6, 2010, in a divided opinion that Victim Impact Statements are exempt under the PRA. But, the court held that SSOSA evaluations must be disclosed after redaction of any identifying information regarding the victim and certain other third parties. Notwithstanding the difficulty in determining the exemption from disclosure of these particular public records, the court determined that it had no discretion regarding the award of penalties to Koenig under RCW 42.56.550(4). The matter was remanded to the trial court to set the amount of penalties that Koenig may receive.

To view the court's decision, click HERE.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

On Thursday, October 15, 2009, the Ninth Circuit Court of Appeals issued an order overturning a decision of the U.S. District Court of the Western District of Washington that barred the Washington Secretary of State from any public release of documents showing names and contact information of referendum petition signers. The particular case involved Washington Referendum Measure No. 71 (“R-71”). See our September 25, 2009 blog posting for more information regarding the earlier ruling of the District Court.

On the same day, the Secretary of State's Election Division issued a narrative explaining why the Secretary of State, in consultation with the Attorney General’s Office, treats initiative and referendum petitions as public records subject to disclosure under the Washington Public Records Act.

Despite the Ninth Circuit ruling, the names have not been released due to a temporary restraining order granted by a Thurston County Superior Court judge blocking the State from releasing initiative petitions under the Public Records Act. The District Court decision was issued in response to a lawsuit, seeking to stop the release of petitions, brought by Tim Eyman, a well known sponsor of initiatives and referendums.

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link