PRA Initial Response Requires Reasonable Estimate Of When Records may be Provided

A Washington court of appeals ruled that the City of Lynnwood violated the Washington Public Records Act (“PRA”) when it failed to provide “any reasonable estimate when records would be provided” in its initial response to a broad records request. Hikel v. City of Lynnwood, No. 74536-1-I (Dec. 27, 2016).

The appellate court affirmed the trial court’s rejection of other PRA claims by a former City Councilmember, represented in the case by the City’s former mayor. The trial court had earlier rejected all of the claims.

But the appellate court found that, despite the City’s efforts to comply with the PRA, the initial response to the request did not satisfy RCW 42.56.520. That provision requires a response within five business days of receipt of the request. If the agency needs additional time, it must acknowledge the request and include “a reasonable estimate of the time the agency...will require to respond.” RCW 42.56.520(3). A reasonable estimate of the time needed to provide a first installment of records has been found compliant. Opinion at p. 10 (citing Hobbs v. Wash. State Auditor’s Office, 183 Wn. App. 925, 943, 335 P.3d 1004 (2014)).

The City’s initial response had asked for clarification due to the large volume of responsive records and advised that it would provide an estimate after it received clarification from the requester. The City then provided its estimate 11 days later. The appellate court held that the City’s initial response was a procedural violation of the PRA. The City was not liable for penalties, but it was subject to an attorney fee claim as to that single violation.

Public records officers will use this case as a further check to be added to the already-long checklist to assure PRA compliance.

Public Records for "Commercial Purposes"? Washington Court of Appeals Addresses Another Dispute - Rejects Union's Constitutional Privacy Argument

Earlier this year, Division II of the Washington Court of Appeals determined that the Freedom Foundation’s public records request for names and contact information of home healthcare workers was not a request for “commercial purposes.” SEIU Healthcare 775NW v. Dep’t of Soc. & Health Servs., 193 Wn. App. 377, 377 P.3d 214, review denied, 186 Wn.2d 1016 (2016). This week, the Court addressed a similar dispute over the Foundation’s request for names of childcare providers in Washington’s “Family, Friends and Neighbors” program and their “state contact” information. SEIU Local 925 v. Freedom Found., No. 48522-2-II (Dec. 20, 2016).

Washington’s Public Records Act, chapter 42.56 RCW (“PRA”), prohibits disclosure of “lists of individuals requested for commercial purposes.” RCW 42.56.070(9). The Foundation claimed that its purpose was to notify childcare providers of their right to refrain from union membership and fee payments. SEIU countered that the Foundation’s fundraising materials specifically mention its use of the lists of provider names. Largely reiterating its prior holdings, the Court held that the Foundation’s purpose was not a commercial one because the Foundation does not intend to general revenue or financial benefit from the direct use of the information. Financial benefit garnered from mentioning the provider information to publicize the Foundation’s work was too attenuated to be a direct use.
 
Also in line with its prior decision, the Court rejected SEIU’s “linkage argument” – that information can become non-disclosable if it could somehow lead to other private information being tracked down from other sources. While property addresses might be the same as the locations where children live or receive childcare, the Foundation’s request did not seek the names and addresses of any specific children. The Court would not look to what information could be discovered beyond the four corners of the records requested to determine if an exemption applied.
 
The Court next considered SEIU’s argument that the privacy protections in article I, section 7 of the Washington constitution prohibited the release of the requested information. The Court rejected this claim, finding that (1) SEIU did not meet its burden of proving that a person’s name and contact information were historically treated as “private affairs” under the constitution; (2) representations by a state agency that information would be kept confidential did not give constitutional protection to such information; (3) the situation was not analogous to the home privacy issues implicated by warrantless searches of a home; and (4) the PRA provided “valid authority of law” to obtain information provided to participate in a public program. The trial court therefore did not err by denying a permanent injunction on the basis of SEIU’s constitutional and statutory arguments.
 

No Right of Access to Security Video Footage Revealing Security Capacity for Surveillance System

Republished with permission from the International Municipal Lawyers Association (IMLA) with Washington Law commentary from Lee Marchisio, Foster Pepper

 

Gilleran v. Township of Bloomfield, No. a-15-15 (Sup. Ct. N.J. Nov. 22, 2016)

Denial of access to town's video security tape footage permissible under [New Jersey's] Open Public Records Act ("OPRA") security exemption because footage contained critical information about operating system and vulnerabilities; however, court noted there may be a common law cause of action for releasing portions of footage.

Seeking to determine whether certain people had entered the Township's municipal building, Plaintiff Patricia Gilleran requested five days' worth of footage from one of Bloomfield's stationary security cameras. A clerk for the Township asked that the request be narrowed to a shorter time period, noting that five days of security camera footage was quite voluminous. Accordingly, Gilleran reduced her request to one day of footage and was later informed that her request had been denied under OPRA's exemption for security information.

Gilleran commenced action against the Township by filing a claim with its Law Division to access the requested footage under OPRA and a common law right-of-access claim, noting that the camera was in plain sight and surveying a public area. In her complaint, Gilleran requested that the court order the footage either be released or redacted pursuant to OPRA's security exemptions.

The Township, despite having never viewed the entirety of the recordings, contended that the footage fell within OPRA's security exception because it would allow a viewer to ascertain the actual area being surveyed by the camera. Since the cameras were strategically placed and contained within smoked glass, it was not immediately obvious to the general public as to what the cameras were surveying, despite their location in a publically viewable area. As a result, Bloomfield contended, allowing members of the public to obtain this security camera footage would defeat the original purpose of the security camera. Further, the area potentially surveyed was used not only by public employees, but also by members of the police department, confidential informants and victims of domestic violence whose identities needed to remain anonymous.

Gilleran responded that none of the OPRA security exceptions warranted a blanket prohibition, particularly given the Act's purpose (to grant public access to public records), and urged the court to require Bloomfield to examine the footage in order to determine whether portions of the video contained a security risk. Further, she reiterated, the cameras were publically viewable and had captured nothing that an individual physically present at the same location could also see. She also argued that since the Town had not actually viewed the tapes in their entirety, they had not effectively demonstrated that there was a security risk that warranted the OPRA exemption.

The trial court found Bloomfield in violation of OPRA. The Township appealed and the appellate court upheld the decision of the trial court.

The New Jersey Supreme Court reversed the decision of the appellate court, concluding that OPRA's exception, while not a blanket exception, nonetheless exempts local governments from releasing of video footage that reveal security capacity for security surveillance systems protecting public buildings. It also found the compelled release of security footage to be at odds with the legislative intent of New Jersey's OPRA statute. The court noted, however, that despite OPRA's security exceptions, there still may be a common law right-to-access claim that balances the interests of both parties and allows for citizens to obtain certain sections of surveillance footage. As a result, the case was remanded to be decided under the unresolved common law claim.

Patricia Gilleran v. Township of Bloomfield (A-15-15) (076114)

Washington Law Commentary

The Washington State Public Records Act provides a similar exemption for surveillance systems protecting public buildings: "As Division One of our court has held, 'Intelligence information provided by video surveillance systems ... falls squarely within the core definitions of 'law enforcement,' thereby exempting surveillance video recordings from disclosure under RCW 42.56.240(1).'" Gronquist v. State, 177 Wn. App. 389, 400–01, 313 P.3d 416 (2013) (quoting Fischer v. Wash. State Dep’t of Corr., 160 Wn. App. 722, 727–28, 254 P.3d 824 (2011), review denied, 172 Wn.2d 1001, 257 P.3d 666 (2011)). This portion of the law enforcement exemption "only applies to the [investigative, law enforcement, and penology] agencies enumerated in the statute." Does v. King Cty., 192 Wn. App. 10, 27–28, 366 P.3d 936 (2015). The agency must demonstrate that nondisclosure "is essential to effective law enforcement or for the protection of any person’s right to privacy." RCW 42.56.240(1); Sargent v. Seattle Police Dep’t, 179 Wn.2d 376, 395, 314 P.3d 1093 (2013). Washington courts have not extensively reviewed the separate "security" exemption statute, RCW 42.56.420. However, any agency or third party seeking nondisclosure under the security exemption statute’s terrorism provision must show that public disclosure "would have a substantial likelihood of threatening public safety." RCW 42.56.420(1); Does, 192 Wn. App. at 29.

No Expectation of Privacy in Digital File Downloaded to Publically-Accessible Folder through File-Sharing Software

The California Court of Appeals has upheld a Napa County court decision finding that a child pornographer had no reasonable expectation of privacy in files that were publically-accessible, despite his having taken measures to obfuscate them.

After the trial court denied his motion to suppress evidence, defendant Richard Evensen pleaded guilty to various sex crimes. This evidence had been obtained through software tools known as "RoundUp" that targets peer-to-peer-file-sharing networks to identify Internet Protocol ("IP") addresses associated with known digital files of child pornography. RoundUp is only available to law enforcement officials. A public website identified one such IP address to be registered with Comcast, which, upon execution of a search warrant, revealed the subscriber of the IP address to be Evensen's mother. A second search warrant was then executed, leading to further inculpatory evidence. Upon Evensen's arrest, further evidence of wrongdoing was also found.

In his motion to suppress, Evensen argued that the software tools used by the police violated his Fourth Amendment rights. The trial court rejected this and the appellate court affirmed.

According to the court, while computer users "generally have an objectively reasonable expectation of privacy in the contents of their personal computers," there are certain exceptions. One such exception is in the contents of a file that has been downloaded to a publically accessible folder through file-sharing software. Although Evensen argued that he took several measures to ensure the privacy of his computer files by changing his file sharing software's default setting to prevent others from accessing his shared public folders, the court noted that these measures still left his files occasionally open to the public (depending on how often he moved his files from his "shared" folder to his "private folder"). Had his files been completely private, they would not have been identified by "RoundUp." Therefore, he had no reasonable expectation of privacy.

People v. Evensen, No. A145162 (Cal. Ct. App. Oct. 27, 2016)

Copyright (c) 2016 International Municipal Lawyers Association (IMLA) - Republished with permission

Text Messages on Private Devices Subject to Washington Public Records Act

On August 27, 2015, the Washington Supreme Court affirmed lower courts in holding “that text messages sent and received by a public employee in the employee's official capacity are public records of the employer, even if the employee uses a private cell phone.” Nissen v. Pierce County

The case arose when a sheriff’s detective sent requests to Pierce County for records related to the County Prosecutor. One request was for cellular telephone records for the Prosecutor’s personal phone. There was no dispute that the Prosecutor personally bought the phone, pays for its monthly service, and sometimes uses it in the course of his job.

The Court’s unanimous decision required the Prosecutor to obtain a transcript of the content of all the text messages at issue, review them, and produce any that are public records to the County. “The County must then review those messages just as it would any other public record-and apply any applicable exemptions, redact information if necessary, and produce the records and any exemption log.”

The Court provided public officials a method to submit an affidavit to separate personal from public messages:

“Where an employee withholds personal records from the employer, he or she must submit an affidavit with facts sufficient to show the information is not a "public record" under the PRA. So long as the affidavits give the requester and the trial court a sufficient factual basis to determine that withheld material is indeed nonresponsive, the agency has performed an adequate search under the PRA. When done in good faith, this procedure allows an agency to fulfill its responsibility to search for and disclose public records without unnecessarily treading on the constitutional rights of its employees.”

The Nissen case reemphasizes the need for public officer and employee vigilance in managing information on personal communication devices. While convenient, the use of private devices for official business creates substantial expense to a public agency in responding to requests for public records.

Washington Court Holds Ballots Secret and Not Subject to Public Disclosure

The Washington Constitution, Article VI, Section 6 states: “The Legislature shall provide for such method of voting as will secure to every elector absolute secrecy in preparing and depositing his ballot.” This provision was central to a Washington Court of Appeals decision on July 13, 2015, rejecting a public records act request for “copies of electronic or digital image files” of ballots. White v. Skagit County and Island County, ___ Wn. App. ___, No. 72028-7 (Jul. 13, 2015).

Following the 2013 Washington general election, Timothy White sent public records requests for all ballots to all counties in the state. The counties denied the requests and White sued. The Washington Public Records Act does not expressly exempt ballots from disclosure. It does, however, include an “other statute” provision that incorporates exemptions to disclosure that are based on laws outside of the Act. The court applied the “other statute” exemption in light of the comprehensive statutory scheme restricting access to ballots. The court concluded that the exemption “is necessary to protect the ‘vital government function’ of secret ballot elections.” Two weeks earlier, a different division of the Court of Appeals reached the same conclusion in White v. Clark County, ___ Wn. App. ___, No. 46081-5-2 (June 30, 2015).

Of further note, the court rejected White’s claim that Skagit County should be penalized for failing to respond to his request for “the original metadata and Properties of the electronic or digital files requested.” The court concluded that it was not unreasonable for the county to ask for an explanation of the electronic files requested. The Court of Appeals agreed with the trial court that “White’s failure to respond to the request for clarification excused the County from trying to explain more specifically why the ‘metadata and Properties’ were exempt.”

No Privacy Interest In Employee's Identity Connected To Existence Of Investigation When Allegations Are Not Described

In Predisik v. Spokane School District No. 81, the Washington Supreme Court holds by a 5 justice majority that disclosure of employer investigation records that reveal an employee’s identity do not implicate employee privacy rights under the Public Records Act (PRA) when the records do not describe the allegations being investigated.  The court therefore reversed the Court of Appeals below, ordered disclosure of the records without redaction, and denied the employees’ requests for injunctive relief under the PRA. 

Two media outlets submitted public records requests to Spokane Public Schools for documents concerning employees on administrative leave.  In response, the District produced three records: an “administrative leave letter” placing an employee on leave and banning the employee from district property and from talking with students about the matter; and two spreadsheets that documented the amount of leave pay accumulated by the employee named in the leave letter and a second employee also on leave.  None of the documents detailed the allegations’ contents. 

Under the employee personal information exemption, only an employee’s personal information that implicates privacy interests (i.e., matters concerning the private life) may be withheld under the PRA, and only when the information’s release would violate the employee’s right to privacy.  Here, the Court held that the existence of a public employer’s investigation is not a “private” matter, but merely an administrative process arising from the employee’s public employment.  The existence of the investigation “is not akin to a family quarrel or a humiliating illness, nor does it touch on the employee’s life at home.”  The investigation itself is therefore not a “closely held private matter that gives rise to a privacy right under the PRA.”  Whether the allegations are later substantiated, or not, “makes no difference … because the records do not describe them.” 

The 4 dissenting justices would have held that employees have a privacy interest in their identities when connected to the existence of an employer investigation into not yet substantiated allegations of misconduct, and that disclosure would violate their rights to privacy.  The employees’ identities remained a private matter because unsubstantiated allegations do not bear on employee performance.  The employees’ identities should have therefore been redacted from the records prior to disclosure. 
 

City Investigation of Law Enforcement Whistleblower Allegations Subject to Disclosure; No Redaction of Witness Identification

In early 2011, City of Fife police officers submitted a whistleblower complaint to the City Manager.  The complaint covered a range of topics including discrimination, misappropriation of public funds and improper workplace relationships.  The City retained an outside entity to investigate the allegations.  The City determined the investigation was thorough and the allegations were either not sustained or unfounded.  One of the complaining officers submitted a public records request for the report, audio recordings and transcripts of interviews, and other records relating to the whistleblower complaint and investigation.  The City began producing installments in May 2012, but redacted names and identifying information of witnesses, the accused officers, and complaining parties.  The City also commenced an action for declaratory and injunctive relief regarding its obligations to produce records. 

On February 24, 2015, the Washington State Court of Appeals determined that while the City’s records were “specific investigative records,” and might qualify for a public records exemption, that was only a part of the test.  City of Fife v. Hicks, (Division II, No. 45450-5).  The Court held that the City was unable to demonstrate non-disclosure was essential to effective law enforcement.  The Court pointed to earlier precedent that expressly rejected the concept that a “generalized fear that disclosure of witness names will chill cooperation within investigations,” citing Sargent v. Seattle Police Department, 179 Wn.2d 376, 395 (2013) (generalized fear, alone, insufficient to justify non-disclosure). In the Fife case, the Court also rejected the City’s claim that disclosure of witnesses would violate a witness’s right to privacy.  This was particularly the case here where dealing with public employees whose conduct is a matter of greater interest to the public.  Additionally, the City could point to no foundation that the requester’s own name could be redacted from a record requested by that person.  While this case may not present substantially new information for agencies complying with the Washington Public Records Act, it does emphasize the need to manage investigations in a manner attentive to future Public Records Act responsibilities.

Court Of Appeals Reverses Large Public Records Act Penalty Imposed On University Of Washington

In Bichindaritz v. University of Washington, Division One of the Court of Appeals reversed a $723,290.50 penalty and $102,958.03 attorney fee award for violations of the Public Records Act by the University of Washington.  The trial court had concluded that the University’s production of documents to the requestor, a former employee who had sued the University, was not in good faith and that the University waited too long to produce records it had already assembled but had not yet reviewed.  The University appealed.

In particular, the University challenged the trial court’s conclusion that as soon as the University had assembled the responsive documents, they were ready to be produced to the requestor.  The Court of Appeals agreed with the University, explaining that the Public Records Act requires that responses to records requests be made “promptly,” but also expressly recognizes that an agency may need additional time to determine whether any part of the information requested is exempt.  See RCW 42.56.520.  As the court summarized:

By the time Bichindaritz closed her 2009 request in February 2011, the University had assembled about 25,000 pages but had reviewed only about half of them for exemptions.  It was unreasonable to expect the University to produce the remaining 12,000 pages the same day Bichindaritz reopened her request simply because it had already assembled those documents.

Opinion at 7 (emphasis in original).

The Court of Appeals also rejected the requestor’s argument that the University’s violation could be sustained on the basis that the University “repeatedly missed production deadlines.”  The court observed that the Public Records Act demands only that an agency provide reasonable estimates for production—not necessarily that an agency comply with its own self-imposed deadlines.  “The question is whether the agency ‘was acting diligently in responding to the request in a reasonable and thorough manner.’”  Opinion at 9 (citing the recent decision in Hobbs v. State).  Here, the requestor did not argue – and the record did not indicate – that the University was less than diligent in completing its review and redaction of the final records for production.  Concluding that the University had not violated the Public Records Act, the Court of Appeals reversed the trial court’s imposition of penalties and attorney fees.