Washington State Court of Appeals

Plaintiff Arthur West filed suit under Washington State’s Open Public Meetings Act, ch. 42.30 RCW (“OPMA”), against the Port of Seattle and Port of Tacoma for excluding West and the public from a series of meetings held between the two ports in 2014. In West v. Seattle Port Commission, et al., No. 73014-2-I (July 5, 2016), the Washington Court of Appeals held that West had standing to pursue his claims under the OPMA, but also held that the Federal Shipping Act of 1984, 46 U.S.C. §§ 40101-41309, preempted application of the OPMA to the ports’ meetings. The Court therefore affirmed dismissal of West’s claims.

Standing Under the OPMA
In holding that West had standing to bring suit, the Court first emphasized that the standing requirements in the OPMA are very broad, allowing “[a]ny person” to bring an enforcement action for violation of the Act. See RCW 42.30.120, .130. It also rejected application of federal standing requirements in this context, explaining that federal case law on standing does not automatically apply to Washington courts interpreting Washington law. The Court of Appeals concluded that the ports had failed to show that West lacked standing in this case.

Continue Reading Federal Shipping Act Preemption and Standing Addressed by Washington Court of Appeals Under State’s Open Public Meetings Act

In White v. City of Lakewood, No. 47079-9-II (May 25, 2016), Division II of the Washington Court of Appeals applied a form of “mailbox rule” to the state Public Records Act (PRA) in defining when records have been “produced” sufficient to trigger the PRA’s one-year statute of limitations. Additionally, the Court reiterated that the statute of limitations is not triggered by an invalid claim of exemption.

White filed three public records requests with the City of Lakewood for documents pertaining to a search warrant. The city withheld responsive records pursuant to the categorical exemption for open and active police investigations under RCW 42.56.240 and Newman v. King County, 133 Wn.2d 565, 947 P.2d 712 (1997), although it later produced certain documents. White filed suit challenging the city’s response to all three requests.

Continue Reading Washington Court Of Appeals Determines When Records Have Been “Produced” Under Public Records Act To Trigger Statute Of Limitations

A Washington Court of Appeals recently addressed this question in a case involving a request from the Freedom Foundation to a state agency for lists of names of home healthcare workers and their contact information. The union representing the workers opposed the disclosure. SEIU Healthcare v. DSHS and Freedom Foundation (No. 446797-6-II, April 12, 2016). The State’s Public Records Act (PRA) “shall not be construed as giving authority to any agency . . . to give, sell or provide access to lists of individuals requested for commercial purposes, and agencies . . . shall not do so unless specifically authorized or directed by law.” RCW 42.56.070(9). The union argued this provision prohibited disclosure, and was not just an exemption from disclosure. The Court rejected the argument, finding “the distinction between an exemption and a prohibition largely is immaterial. [Another section of the PRA] does not distinguish between the two, referring to any other statute that ‘exempts or prohibits’ disclosure. . . . We conclude that RCW 42.56.070(9) must be construed in favor of disclosure regardless of whether [RCW 42.56.070(9)] states an exemption or prohibition.”

Continue Reading What is an Agency’s Obligation When a Records Request May Suggest Requester’s “Commercial Purpose”?

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.

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

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.

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

 

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]

 

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.

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

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.”

Continue Reading The Saga of Zink v. City of Mesa Continues – Washington Court of Appeals Remands Again

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."

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.

Continue Reading Prisoners Have Public Records Rights – But Not All of Them