Gold Bar Meets the Gold Standard of Records Request Response; Still Costs City A Pretty Penny

By 2009, Susan Forbes “and other persons aligned with her” had submitted 82 record requests for various City of Gold Bar public records. Many of those emails were stored on the personal email devices of the mayor, city council members, and other city staff. For over a year, the City corresponded with Ms. Forbes, fulfilling her “purposeful[ly] broad” requests through installments, but also extending its estimated times for response on several occasions. “Unsatisfied” with the delay and the absence of a privilege log outlining withheld documents, Ms. Forbes sued the City claiming the delays were not “reasonable.”

The Washington Court of Appeals, Division 1, provided some vindication for the City, if not relief, upholding a trial court’s summary judgment rejecting Ms. Forbes’ Public Records Act lawsuit. As the Court reiterated, the PRA allows a public agency to respond to a request for public records by providing a reasonable timeframe for response. The agency may fulfill requests in installments as additional requests are assembled to complete broad requests. The superior court may, however, require the agency to show that the estimate was “reasonable” under RCW 42.56.550. By analogy to FOIA and PRA case law on the reasonableness of searches, the Court found that the extensive nature of the requests, resulting in disclosure of 28,290 documents, made delays in production reasonable.

During litigation, Ms. Forbes also requested that the trial court review in camera personal emails that were not produced. The lower court declined because Ms. Forbes “did not have any clear articulation as to why such a review would be appropriate.” Division I affirmed and held that the City’s “clear and consistent record” of adequate searches in reasonable times did not merit in camera review of records not produced. Importantly, the personal emails at issue did not contain city business. The Court distinguished Mechling v. City of Monroe, where personal emails were not exempt because they contained information relating to the conduct of government. Here, no emails containing city business were withheld. Furthermore, because the personal emails were merely non-responsive, they were not withheld, and the City was not required to produce a privilege log.

The cost of responding to the voluminous requests and the related litigation has pushed the City of 2100 people to the brink of bankruptcy. One of the largest expenses (and reasons for delay) was the need to search city officials’ personal electronics and home computers, including sorting personal emails from City business. Better document management practices may not have eliminated Ms. Forbes’ issues, but it could have decreased Gold Bar’s costs.
 

Friday LOG Links - March 9th

 

White House launches www.ethics.gov as one-stop shopping for open government information. [Wall Street Journal]

New York follows suit with Mayor Bloomberg signing a data transparency law that will allow the City to “continue leading the country in innovation and transparency…” with a unified open-data repository that opens for business in just six short years. [Information Week]

The Legislature giveth and the Legislature taketh: Florida legislature requires newly elected governors to preserve email and other records created before they are sworn in. Florida legislature also re-adopts measure providing a two-year disclosure exemption for tax-incentive deals. [Miami Herald] [Orlando Sentinel]

Washington Court of Appeals rules that enough ($$$) is enough, upholding trial court’s calculation of penalties awarded to Public Records Act frequent flier Arthur West. [Washington Court of Appeals]

 

WA Court of Appeals Decision in Zink v. City of Mesa Has Many Public Records Act Lessons for Municipalities

By Lee Marchisio with Steve DiJulio

On June 7, 2011, the Washington Court of Appeals remanded (for a second time) Zink v. City of Mesa to the trial court to calculate penalties against the City of Mesa for violating Washington’s Public Records Act (“PRA”). 2011 WL 2184965. Although the Court’s order came in an unpublished opinion, local governments can draw a number of lessons (and cautions) about the PRA from this case.

Washington local governments should take special note of how litigation influenced the number of penalty days assessed to Mesa; the different ways Mesa processed multiple and complex PRA requests; how Mesa responded to requests for non-existent and lost documents; how Mesa managed attorney-client privileged documents; and, how Mesa responded to requests for documents that the requestor already possessed. In this summary, we use the term “city” rather than “agency” or “local government,” for convenience only.

Lessons on How Litigation Affects Penalty Day Calculations

Q: If a city prevails at trial on withholding a record and later loses on appeal, is the city subject to penalty days for the period between the trial court order and the appellate court reversal?

A: Yes, the days between the trial court judgment and the appellate court reversal are included in the final penalty calculation. 2011 WL 2184965 at *6.

Q: Is a city subject to penalty days after a trial court orders a release of documents under the PRA?

A: Yes, a city is subject to additional PRA sanctions for delaying release of a public record after a court order. Id. Requestors may bring an additional PRA action to recover these penalties. Cities are also subject to Washington’s contempt laws for not complying with court orders. Chapter 7.21 RCW.

In the Zink v. City of Mesa litigation, the Zinks may still have a cause of action under the PRA or a remedial action for contempt of court under RCW 7.21.030 if Mesa did not properly comply with the trial court orders to produce records.

Q: Is a city ever subject to penalty days for the 5-day reply period under RCW 42.56.520?

A: Yes, if a city improperly denies a request within the 5-day reply period, then the records are improperly withheld for every day in which the record request was denied, including any portion of the 5-day reply period. Id. at *7-8.

Lessons on Managing Multiple and Complex PRA Requests

Q: Can requestors ask for “all public records” relating to a specific city matter?

A: Yes, if a city receives a request for “all public records” with respect to a specific matter, then the city’s failure to produce a document related to that matter constitutes a “silent withholding” in violation of the PRA. Id. at *8.

Ms. Zink’s request for all public records regarding the Zink’s property was sufficient to put Mesa on notice that a complaint issued against the Zink’s property was included in Ms. Zink’s request. Mesa’s failure to produce the requested complaint amounted to a “silent withholding” of public records in violation of the PRA.

Q: Is a city liable for separate penalties for every document in a request?

A: Sometimes, trial courts have discretion to group documents as a single request based on the city’s culpability as opposed to the size or volume of records requested. Id. at *9.

Penalties better serve the PRA’s purpose when they are directed at agency culpability as opposed to size of request. In Zink v. City of Mesa, the Zink’s request for an audio tape recording, meeting minutes, and rules and regulations adopted in a November 13, 2002 meeting were grouped together as one PRA request.

Q: If a city wrongfully redacts a record, then is it subject to penalty days for withholding the record starting from the date of the original request?

A: No, if a city wrongfully redacts records, then the penalty period only begins on the day that the city was required to produce the record and not on an earlier date. Id.

Mesa properly withheld records for 30 days in order to assemble them in response to the Zink’s multiple requests. However, the City violated the PRA when it provided wrongfully redacted copies on the date that it was required to provide unredacted copies.

Q: If a city receives a request that is substantially the same as a prior request, but only for a different time period, then is this a separate request for penalty purposes?

A: Not necessarily, the trial court has discretion to group the requests together as essentially one continuous request for penalty purposes. Id. at *10.

The Zinks requested all correspondence between Mesa and Mesa’s city attorney and also between Mesa and the Municipal Research and Services Center. A second request for subsequent communications between the same parties was treated as a single PRA request because they were for “essentially the same documents.”

Q: Can a city delay production of easily producible ordinances, board rules, and adopted regulations beyond the 5-day reply period?

A: Sometimes, a city is occasionally justified in delaying the production of easily producible records if it can show that the requested items accompany multiple other requests for documents that are time consuming to produce. Id.

Mesa properly delayed a request for minutes and adopted rules and regulations from a city council meeting when the request also included telephone logs and 18 residential files.

Q: Can a city direct a requestor to submit requests directly to the city attorney?

A: No, when a city directs a requestor to inquire with another official in the city, this referral is effectively a wrongful denial and penalties accrue beginning on the date of the denial. Id. at *11.

Directing Ms. Zink to contact the city attorney for a specific document was effectively a wrongful denial of a record and Mesa’s penalties accrued beginning on the date Ms. Zink was directed to the city attorney.

Q: Can a city limit viewing files to a one hour period during the day?

A: No, limiting Ms. Zink’s access to files for one hour on one day subjected Mesa to the maximum $100 penalty for that day. Id. at *11-12.

Q: Can a city delay production of a file once it is made available for viewing?

A: No, once a file is reasonably available for viewing, a city is subject to per-day penalty amounts for later restricting access to those files while also failing to provide copies of those files. Id.

Q: Can a city treat a requestor who asks for one ordinance differently than a requestor who asks for the same ordinance along with numerous other records?

A: Sometimes, when a request for a simple document, like an ordinance, is submitted with several other requests, the production of that ordinance may be delayed even if other requestors are provided that ordinance on the day of their request and even if it was the city that required the request to be put in writing. Id. at *14.

Ms. Zink’s request for a copy of a city ordinance was properly delayed because it accompanied multiple other requests even though her sister-in-law received the same ordinance on the same day she requested it.

Q: If a city groups multiple request together in writing, then will this be treated as one records request?

A: Not necessarily, although a city may decide to group requests together, trial courts have discretion to separate these requests for determining the number of penalty days. Id. at *15.

Mesa’s error in withholding several documents did not entitle it to have those documents grouped together as one request.

Lessons on Responding to Requests for Lost or Non-Existent Documents

Q: Is a city subject to penalties for failing to produce records that do not exist when the city is required by a separate statute to create that record?

A: No, even if a city is required by statute to generate a particular writing, like minutes, the PRA does not state that an agency’s violation of independent statutory duties to prepare records is also a violation of the PRA. A city is subject to PRA penalties only when the requested record actually exists. Id. at *12-13.

Q: If a requestor submits multiple requests at the same time, can a city treat the requests together and delay their production until all of the records are complied?

A: Yes, high volume requests may be assembled and released together. Id. at *13.

Q: Does a city need to respond to a request for documents that do not exist by stating that the documents do not exist?

A: Not necessarily, a city has no duty to state that records do not exist at the time of a particular request. Id. at *14. The PRA does not compel production of records that do not exist.

Mesa’s response that it would take 30 days to produce a record that it knew did not exist was not a violation of the PRA. The city intended to adopt the requested procedures within that time and then released them once they were enacted.

Q: Can a city delay production of ordinances and resolutions that accompany requests for non-existent documents?

A: Yes, a delay is reasonable when a city attempts to provide all of the legislative enactments together when they were requested at the same time, including enactments that do not yet exist. Id.

Lessons on Producing Attorney-Client Privileged Documents

Q: If a city claims that a document is exempt from disclosure as an attorney-client communication, is it required to justify that exemption?

A: Yes, to assert attorney-client privilege for public documents, the PRA requires cities to provide an exemption log detailing identifying information about the document and a brief explanation of how the statutory exemption applies to each specific record. Id. at *16.

Q: If a city inadvertently discloses attorney-client privileged documents, does this waiver subject the city to penalties for withholding public records?

A: No, accidental release of attorney-client privileged documents does not subject a city to penalties for withholding those records for the period in which they were properly under the attorney-client privilege. Id. at *16-17.

Lesson on Losing Original Documents

Q: If a city loses a signed version of a document, but produces a substantially similar document that is unsigned, then does the unsigned version comply with the PRA?

A: Yes, if the unsigned copies provide substantially the same information as what would have been provided with the signed copies. Id. at *18.

When Mesa provided the unsigned copies of minutes, it substantially fulfilled the purposes of the PRA by providing the Zinks full access to information concerning the conduct of government.

Lesson on the Statute of Limitations for PRA Claims

Q: Does the 5-year statute of limitations on bringing a PRA action limit PRA per-day violations to 1,827 days (5 years)?

A: No, the 5-year statute of limitations only limits the scope of PRA claims to violations that occurred within five years prior to filing the complaint. Id. Violations that occurred during the 5-year limitation period, however, will be penalized for each day that the requestor was denied the right to inspect or copy the public record. Similarly, the 1-year statute of limitations in RCW 42.56.550 does not limit the number of per-day violations that can accrue. Id.

Lessons on Documents Released Prior to PRA Litigation and
Documents Already Possessed by Requestors


Q: If a city fails to comply with the PRA for a period of time, but then complies prior to the requestor filing suit, is the city still liable under the PRA?

A: Yes, a city is liable for PRA violations regardless of whether PRA litigation is needed to compel the city to produce requested documents. Id. at *19.

Q: If a city knows that the requestor already has the document that is being requested, does the city still need to produce that document upon request?

A: Yes, a city is subject to penalties for not producing public records regardless of whether the requestor already possesses those records. Id.

Ms. Zink requested copies of correspondence from the Zinks to the City of Mesa. Mesa’s knowledge that Ms. Zink already possessed the requested documents was not a defense to withholding those documents because the date-stamped copy of a correspondence between the Zinks and Mesa is defined as a public record.


 

The Saga of Zink v. City of Mesa Continues - Washington Court of Appeals Remands Again

The Washington Court of Appeals, in an unpublished opinion dated June 7, 2011, has once again remanded the Zink v. City of Mesa case back to the trial court. This time the remand is for the purpose of entering new findings on the amount and rationale for penalties imposed on the City of Mesa for violating Washington’s Public Records Act (PRA).

In a previous published case, Division III of the Court of Appeals had overturned the initial trial court decision that found that Mesa had substantially complied with many of the Zink’s public disclosure requests. Zink v. City of Mesa, 140 Wn. App. 328, 166 P.3d 738 (2007). In that case the Court of Appeals had emphatically stated: “We hold that ‘substantial compliance’ is an incorrect standard by which to judge an agency’s compliance with its statutory duties. We further hold that the record does not support the trial court’s determination that the Zinks unlawfully harassed the City officials or that the City met its obligations under the PDA.”

The facts of this case provide some insight into the continuing controversy. As the Court of Appeals took pains to note in both cases, Ms. Zink was both a former council member and mayor of Mesa, who after leaving office became a self-styled “watch dog” over city actions, particularly after the city improperly denied her request for a building permit. By way of additional background, it should also be noted that the 2010 census reports that the City of Mesa (located in Franklin County) has a population of 489.

Upon remand from the 2007 decision, the trial court assessed penalties and attorney fees for violating the Public Records Act totaling $246,000. Both sides then appealed the amount of the penalties and the basis on which they were adopted. In this appeal, the Court of Appeals makes detailed rulings on many of the issues on appeal, but then remands the case back to the trial court again for a new determination of penalties based on the 16-factor test (7 mitigating factors and 9 aggravating factors) set out in the State Supreme Court’s intervening decision in Yousoufian v. Office of Ron Sims, 168 Wn.2d 444, 229 P.3d 735 (2010).

One of the individual rulings in the unpublished decision highlights an important aspect of Washington’s Public Records Act. That is, a government is under no obligation – under the PRA – to produce documents that do not exist. The Zinks sought penalties under the PRA for the failure of the city to produce minutes of meetings that the city was required under a statutory obligation to prepare. But the Court rejected that claim. “Mesa admittedly violated separate statutes requiring it to prepare draft minutes of the Board meetings for public review. RCW 35A.39.010  RCW 42.32.030. But the PRA does not state that an agency’s violation of independent statutory duties to prepare records is a violation of the PRA.”
 

The Warden is Watching - But You Can't Have the Tapes

Following up on my January 20 blog post, the Washington Court of Appeals in an unpublished opinion has denied another request for public records by an inmate of the state prison system. Fisher v. Dept. of Corrections, January 24, 2011. Read opinion here.

Fisher, an inmate of Washington’s Monroe Corrections Complex, alleged that a fellow inmate had assaulted him in the prison law library. To support this allegation, Fisher asked for surveillance tapes of the library. The Department refused, citing RCW 42.56.240(1) which exempts “specific intelligence information compiled by . . . penology agencies. . . the nondisclosure of which is essential to effective law enforcement.” The Department argued that the tapes, if disclosed, could allow the prisoners to learn the capabilities and the limitations of the prison’s extensive camera surveillance system, and thereby “allow inmates to determine weaknesses and exploit those weaknesses by assaulting other inmates or committing crimes and prison infractions.”

The Court of Appeals found the unrefuted affidavit of the Department’s director of prisons division persuasive, and determined that “Intelligence information provided by video surveillance systems therefore falls squarely within the core definition of ‘law enforcement.’” The nondisclosure of the surveillance tapes was thus found by the Court to be “essential to effective law enforcement."

Prisoners Have Public Records Rights - But Not All of Them

Public records act requests by prisoners have long been an issue for jail administrators and for the courts. Creative gaming of public records act requests by prisoners has bedeviled both.

While the State of Washington’s courts have liberally applied the reach of public records act requests, both the legislature and the courts have imposed limitations in the area of prisoner requests. In 2009, the Washington legislature amended the state’s Public Records Act expressly to allow for an injunction against repeated or abusive public records act requests by prisoners under specified circumstances. RCW 42.56.565.

On January 19, 2011, Division II of the Washington Court of Appeals issued an opinion which confirmed the validity of Department of Corrections’ rules restricting the ability of prisoners to personally inspect most public records – rather than receive copies at the prisoner’s expense. Gronquist v. [Washington] Dept. of Corrections.

In Gronquist, the Court of Appeals upheld Department rules that allow a prisoner to personally inspect only his or her central file or medical file. Otherwise, a prisoner is required to pay $0.20 per page plus postage for photocopies of any requested documents that will then be mailed. The Court ruled that the general rule allowing a requestor to either inspect public records in person or obtain copies (or both) does not necessarily apply to a prisoner whose rights are already constrained. The Court recognized the broad reach of the Public Records Act, but also recognized the countervailing need of the Department of Corrections mandate to manage prison inmates. Accordingly, if a prisoner refuses to pay for copies, the Department is not obligated to provide the requested records or to allow for personal inspection of the records at no charge. This decision follows an earlier opinion by Division III of the Washington Court of Appeals which adopted the same principle. Sappenfield v. Dept. of Corr., 127 Wn. App. 83, 110 P.3d 808 (2005), review denied, 156 Wn.2d 1013.

 

Court of Appeals Permits Newspaper to Obtain Sealed Attorney Billing Records in a Closed Criminal Case

In State v. Mendez, ___ Wn. App. ___ , 2010 WL 3259347 (August 19, 2010). The Yakima Herald sought as public records the sealed attorney billing records for public defenders in two related criminal cases, State v. Sanchez and State v. Mendez. The trial court denied both requests, but suggested a motion to unseal pursuant to GR 15 in Mendez because that case is closed. (The Sanchez public records case was argued to the Washington Supreme Court on March 9, 2010.)

The Mendez court held that GR 15 and the State constitutional command that justice be administered openly and permitted the newspaper to intervene and granted the newspaper’s motion to unseal the billing records of public defenders in a closed criminal case. But in doing so, the court carefully distinguished ongoing criminal cases, in which the right to a fair trial and the right to counsel may be impacted by releasing the billing time and expense records of a criminal defendant.

In releasing the billing records, however, the Court of Appeals did affirm the trial court’s redaction of time descriptions tending to reveal communications between the defendant and his appointed counsel (attorney client privilege) and those describing discovery and contacts with witnesses, and other attorney work product materials.
 

Wisconsin Supreme Court Holds Employee's Personal E-mails Not Public Records

On July 16, 2010, the Wisconsin Supreme Court ruled that a public employee's personal e-mails are not public records under that State's Public Records Law. Like Washington, Wisconsin has broad public disclosure laws. Or, as noted by the Supreme Court, "[i]f Wisconsin were not known as the Dairy State it could be known, and rightfully so, as the Sunshine State." But, the Court held personal e-mails "are not a part of government business," simply because they may be sent or received on a Wisconsin local government's e-mail and computer system.

This holding is similar to (and cites) a Washington Court of Appeals decision, Tiberino v. Spokane County, 103 Wn. App. 680, 13 P.3d 1104 (2000). There, the Washington court held the personal e-mails were "public records," and excessive personal e-mail use was a reason for discharge of a government employee. However, the personal e-mails were exempt from disclosure under Washington law. While the fact of excessive email use is of legitimate public concern, the actual content of the personal emails was not.

Washington Appellate Court Rules that Destruction of Informational-Only Emails Pursuant to a Records Retention Policy Does not Violate the Public Records Act

On October 13, 2009, Washington State Court of Appeals (Division II) affirmed a trial court’s summary judgment in a public records case brought by the Building Industry Association of Washington (BIAW). BIAW sued Pierce County when the County did not produce certain email records that the BIAW had located from a different agency. The court ruled that emails from the Washington Secretary of State’s office to the Pierce County Auditor had been properly deleted pursuant to the applicable retention policies. The Court further held that the State’s Public Records Act (PRA) does not authorize a requestor to comb through agency records searching for records that do not exist.

At issue were several informational emails that were sent by the Secretary of State to all county auditors regarding voter registration forms submitted by the Association of Community Organizations for Reform Now (ACORN). When these emails were not produced by Pierce County in response to a public records request, BIAW sued, arguing that the County was withholding the emails in violation of the PRA or had destroyed them in violation of Washington State's Preservation and Destruction of Public Records Act, chapter 40.14 RCW. In response the County contended that the emails had likely been deleted pursuant to its general records policies since the emails were purely informational. The County submitted affidavits to the trial court demonstrating its office policies and procedures, the use of email, and what had happened in the particular circumstances involved.

The Court agreed with the County, stating that BIAW had failed to introduce evidence contradicting the County’s affidavits. The Court also noted that the County’s procedures comply with applicable retention policies published by the Secretary of State regarding informational only emails; and, that destruction of records in accordance with retention policies is allowed as long as no public records request for those records is outstanding at the time of destruction. Neither the trial court nor the appellate court reached the issue of whether the improper deletion of a record in violation of chapter 40.14 RCW would constitute a separate violation of the PRA.

Public Records Act Requires Examination of Computer Hard Drive

In a recent unpublished decision, a Washington State Court of Appeals addressed a Public Records Act request from the Neighborhood Alliance of Spokane County for records of the County’s Building and Planning Department. Neighborhood Alliance of Spokane County v. County of Spokane, No. 27184-6 (C.A. Wa., Div. III, August 11, 2009).

While an unpublished decision, the Court’s analysis does provide some guidance for a government’s review of electronic records in response to a public record request. First, the Court looked to federal court decisions under the Freedom of Information Act (FOIA) to guide the the standard for judicial review of the government agency’s response to a request.

“The adequacy of the agency’s search is judged by a standard of reasonableness, construing the facts in the light most favorable to the requestor.”

And,

“the agency must show that it ‘made a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested.’”

Applying that standard to Spokane County’s efforts, the Court found that the County had examined one computer, but had not examined an older hard drive used by the author of the subject document. “The County failed to conduct an adequate search for the complete electronic information log showing the date the” record was created.

Also of interest is the Court’s determination that under the Public Records Act, similar to FOIA, the scope of discovery in records litigation is limited to whether a complete disclosure has been made by the agency in response to a request for information. The Court rejected the broad discovery requests for other documents and information to the County that “went far beyond the issue of whether a reasonably adequate search for documents had taken place.”