Constitutional Separation of Powers Protects Gubernatorial Decision Making

In Freedom Foundation v. Gregoire, the Washington State Supreme Court holds that separation of powers in the State Constitution creates a qualified executive privilege to protect certain gubernatorial deliberations.

Although Washington’s Constitution does not contain a formal separation of powers provision, the Court recognizes the doctrine based on the State’s multi-branch form of government. One branch will violate separation of powers if its activity “threatens the independence or integrity or invades the prerogatives of another.” Executive privilege preserves the integrity of the executive branch by protecting the chief executive’s access to candid advice and robust decision making.

But, the privilege is not unlimited. It extends only to communications made to inform policy choices that are authored or solicited by the governor or by gubernatorial aids with significant responsibility for formulating policy advice for the governor.

In order to assert the privilege, the governor must provide a privilege log that lists the documents sought to be protected, the author, the recipient, and a description of the document’s subject matter. Once the governor provides a sufficient privilege log, the communications are presumptively privileged. In order to overcome the privilege, the requestor must assert a particularized need for the requested materials. Only after the requestor demonstrates particularized need will a trial court determine whether that need outweighs the public interest served by protecting gubernatorial deliberations.

Here, Governor Gregoire asserted the privilege over five documents and part of a sixth document in response to a request by Freedom Foundation. Because Freedom Foundation refused to assert a specific need for the requested documents, the Court held that it could not compel the governor to disclose those documents.

Washington's Constitution Guarantees Public Access to Court Documents When Relevant to a Motion Actually Decided

In Bennett v. Smith Bunday, the Washington Supreme Court rules that article I, section 10 of the Washington Constitution requires that only material relevant to a decision actually made by a court is presumptively public. In the absence of a court decision, records do not become part of the administration of justice and may remain sealed for good cause under a stipulated protective order.

Stemming from a marriage dissolution, Rondi Bennett and her father, Gerald Horrobin, sued the accounting firm Smith Bunday Berman Britton, alleging that the firm aided Rondi’s husband in embezzling and hiding money from jointly owned businesses. As part of discovery, Smith Bunday provided confidential nonparty tax records under a stipulated protective order, and the documents were marked “confidential.”

Although the case settled, a response filed in the court by Rondi and Gerald contained or made reference to “confidential” documents in violation of the stipulated protective order, apparently by accident. The parties agreed that Rondi and Gerald would refile redacted and sealed versions. However, Rondi and Gerald’s expert witness moved to intervene, asserted his right as a member of the public to open access to court records, and opposed the refilling because “everything was about to go underground.”

Under article I, section 10 of the Washington Constitution, court records that become part of the administration of justice are presumptively public and may be sealed from the public only upon a showing of some compelling need for secrecy. However, the public does not have an interest in documents when the court does not actually make a decision or when the documents are not relevant to the merits of a motion before the court.

Here, the “confidential” documents filed with the court were not part of the administration of justice because the parties settled prior to court disposition. The trial court had no occasion to use the information as part of its decision making process. As the Court further noted, “The supporting material cannot be relevant to a nonexistent decision.” Therefore, the “confidential” documents were not presumptively public under article I, section 10.
 

Washington State Supreme Court Orders Disclosure of Investigative Reports Alleging Police Misconduct

Less than twenty four hours after Wednesday’s post on New Mexico’s Supreme Court’s decision on disclosure of police misconduct records, the Washington State Supreme Court issued a decision in Bainbridge Island Police Guild v. City of Puyallup, No. 823740-0.  In Bainbridge Island, the Court addressed whether complaints alleging police misconduct must be disclosed under Washington State’s Public Records Act (“PRA”) even if the accusations are unfounded or unsubstantiated.

The case was brought by a citizen who alleged that a police officer sexually and physically assaulted her during the course of a traffic stop. Investigations were conducted by the cities of Puyallup (criminal) and Mercer Island (internal investigation).  Each investigation found the claims to be unsubstantiated.  The case garnered media attention, and several journalists and news organizations, in addition to the complainant herself, made public records requests for the investigative reports.  The cities of Puyallup and Mercer Island informed the requestors that the documents would be produced absent an injunction, which the Police Guild and the implicated officer sought (though not before at least one of the reports had been released and information published by some media sources).

Subsequent records requests and demands for injunctions led to in camera review of the documents by a Kitsap County Superior Court judge, who determined that the reports should be withheld under the investigative report exception to the PRA, RCW 42.56.240(1).  Injunctions were also sought against requestors in Pierce County Superior Court.  That court determined that the Puyallup report could be withheld from disclosure under the personal information exemption to the PRA, former RCW 42.56.230(2) and privacy concerns under RCW 42.56.050.  Injunctions enjoining disclosure of the reports were granted in King County Superior Court on the same grounds.

The Supreme Court accepted direct review.  The lead opinion (4 justices) overturned the King and Pierce County decisions, which had determined that the reports could be withheld in their entirety based on privacy concerns under the PRA’s personal information exemption.  Personal information is not defined in the PRA, but has been defined by the Supreme Court as “information relating to or affecting a particular individual, information associated with private concerns or information that is public and not general.”  Bellevue John Does 1-11 v. Bellevue Sch. Dist. No. 405, 164 Wn.2d 199, 211, 189 P.3d 139 (2008).  The Court rejected the trial courts’ determination that the reports should be withheld in their entirety, and instead instructed the agencies to produce the records, but redact identifying information (i.e. the officer’s name, social security number or other identifying data) in order to protect personal privacy interests.  The Court compared the unsubstantiated allegations against police officers with the Bellevue John Does case, where the Court found the names of public school teachers who are the subject of unsubstantiated allegations of sexual misconduct are exempt from disclosure, but the underlying investigative reports (with names redacted) were subject to release.  The Court also addressed the investigative records exemption to the PRA, RCW 42.56.240(1) (raised in the Kitsap County Superior Court case), and found it inapplicable, as the records are not essential to effective law enforcement.  Disclosure of the records (without identifying information) was justified by the public’s “legitimate interest” in knowing how the allegations of misconduct were investigated. Opinion at 18-22; see also RCW 42.56.050.

In contrast, the concurrence/dissent (4 justices) asserted that the entire record should be released, including the officer’s name.  Justice Madsen wrote that an officer’s name does not need to be redacted in an investigation or complaint against a police officer for sexual misconduct, because such allegations “in no way involve the details of one’s personal and private life.” Concurrence/dissent at 1.  “Public records relating to alleged misconduct of public servants and who government agents investigate such allegations are quintessential examples of the kind of information that the PRA opens to scrutiny.  The public has the right to know… .” Concurrence/dissent at 2.  That opinion would hold that the exemptions raised by the Police Guild and the officer did not justify nondisclosure.

Finally, Justice Johnson wrote a lone dissent finding that the two investigative reports “fit squarely” within the PRA exemption for investigative records, thus should not be disclosed at all. He found the lead opinion to be inconsistent with Bellevue John Does.

The practical result of these decisions is that disclosure outweighs privacy concerns in the arena of public employees’ misconduct. Investigative records detailing claims of misconduct must be released and available to the public. This will likely apply across the board to all public sector employees, and will not be limited solely to law enforcement or education. Even if allegations are unsubstantiated, the record must be released, though with redaction of names or personal identifying information.

Click here for a recent Seattle Times article on the decision.

 


 

Washington Supreme Court Reaffirms Courthouse Door as Bright-line in Public Records Act Application

In a 9-0 decision, the Washington Supreme Court upheld rejection of a public records request for court records in a court’s possession, once again reaffirming long-standing case law. The decision in Yakima County v. Yakima Herald-Republic, Case No. 82229-8 (January 13, 2010) also remanded the case for potential disclosure of similar records held outside of the court by other agencies.

The Yakima Herald-Republic filed public records requests regarding funding the defense of two indigent criminals charged with first-degree murder. The newspaper made its requests to both the Yakima County Superior Court and several outside agencies who had involvement with paying the defense expenses . These requests were made after the newspaper had sought to have the court provide the records, which the case judges had “sealed,” preventing disclosure of documents under the court administrative rules.

Washington courts have, since at least 1986, repeatedly rejected argument that courts are “agencies” subject to Washington’s Public Records Act, Chapter 42.56 RCW. See, Nast v. Michels, 107 Wn.2d 300, 730 P.2d 54 (1986). The newspaper tried to distinguish the Yakima case from the Court’s precedent by arguing that financial aspects of the case were merely administrative. While this argument would seem to be unremarkable, the newspaper urged that the defendants had two judges assigned, one to handle the financial matters and one to try the case. Because the financial matters were separate from the actual court proceedings, the financial documents should be disclosed.. (Many states, including Washington, require attorneys for indigent defendants to obtain court authorization for investigation and expert witness costs.)

The newspaper also called the judicial approval of indigent defense expenditures “curious,” but the Court succinctly rejected the newspaper’s public records argument as “without merit.” The Court went on to note that judicial approval of defense funding is provided for in both the federal and Washington rules on criminal procedure; dividing judicial responsibilities in potential capital cases is common (even required in California); and, indigent defense funding is still a judicial issue even if handled by a second judge.

For court documents that had been provided to outside agencies, the Court ruled that the Public Records Act applies and that the agencies should have complied with the PRA. The Supreme Court ordered that the trial court would first need to review the materials in question to determine if the trial court had forwarded the documents to the outside agencies with a protective order or other instructions “sufficient to retain their character as judicial documents” or if a PRA exemption to disclosure applies. These outside agencies may be subject to the PRA daily penalties (for delay in disclosing records) if the trial court finds they were not protected by court order and should have been disclosed.
 

City of Monroe, Washington, pays $157,394 to Settle Public Record Act Case

The Everett Herald reported today that the City of Monroe had agreed to pay over $150,000 to settle a five-year old dispute involving disclosure of public records. According to the Herald, the claimant spent approximately $115,000 in attorney fees to litigate this drawn-out dispute.

The subject of the request was e-mail traffic from and to City officials regarding City Council meetings in March 2005. The City, however, refused to provide unredacted e-mail messages from the home computers of various council members, citing privacy protection exemptions in the Public Disclosure Act. The City also claimed that it was not required to provide electronic copies of the e-mail records.

The City won in Superior Court, but lost in the Court of Appeals Mechling v. City of Monroe, 152 Wn. App. 830, 222 P.3d 808 (2009). The Court of Appeals held that e-mails are “records” – even on a home computer - under Washington’s Public Records Act. The City bears the burden to demonstrate why it could not produce electronic copies of those e-mails, if requested. Indeed, since the Mechling decision in 2009, the Washington Supreme Court has ruled that even the “metadata” contained in electronic e-mails is a public record and must be produced when requested. O’Neill v. City of Shoreline, ___Wn.2d___, 240 P.3d 1149 (October 7, 2010).

The Court of Appeals in Mechling also ruled that e-mail and the home e-mail addresses of council members who sent e-mail messages about City business from their home computers was not protected by the privacy exemptions of the PDA. First, the Court noted that the council members had themselves made those e-mails subject to public disclosure by using their home computers for City business. Second, the Court stated that the privacy protections apply to information in a personnel file, not to information found on business e-mails.

The Mechling case serves as yet another reminder that when elected officials use their home computers for government business, those records – including their home e-mail addresses – become subject to public disclosure.

Washington Supreme Court Again Rules in Favor of Document Release

In a unanimous decision, the Washington Supreme Court again came down in favor of expansive public records disclosure and narrow reading of exemptions from disclosure, this time in the realm of investigation records during pending criminal trials. Among the public records at issue in Seattle Times Co., et al. v. Serko & Chushcoff, et al., Case No. 84691-0 (Nov. 18, 2010) were materials gathered during the Pierce County Sheriff’s Office investigation of the Maurice Clemmons police killings. In 2009, Clemmons shot and killed four Lakewood police officers, then evaded law enforcement with assistance from his friends and family before being killed himself by a Seattle police officer. Soon after, criminal proceedings began against Clemmons’ alleged accomplices.

The Seattle Times and others requested records related to the Clemmons investigation from the Sheriff, which he intended to release. The criminal defendants sought to stop the Sheriff from producing “any and all” records responsive to the requests, claiming the records were exempt “because their production would impair their right to a fair trial.” More specifically, the defendants argued that release of the materials would result in media coverage that could taint the future jury pool. Ruling for the defendants, the trial court relied on RCW 42.56.540, which allows the superior courts to enjoin disclosure of a public record if doing so “would clearly not be in the public interest and would substantially and irreparably damage any person… or vital government functions.”

The Supreme Court, however, vacated the trial court’s order and reaffirmed its previous holding that RCW 42.56.540 is a procedural provision allowing for injunctive relief to enforce records release exemptions, but does not otherwise provide any specific exemption. See Progressive Animal Welfare Soc'y v. Univ. of Wash., 125 Wn.2d 243, 257, 884 P.2d 592 (1994). The Court allowed that fair trial rights may sometimes be a basis for suppressing records, but that in this context the withholding must be analyzed like any other precautionary measure aimed at issues regarding pre-trial publicity, e.g. change of venue or a gag order. But the defendants had to show a probability of unfairness or prejudice from pre-trial publicity. And then the trial court would need to inquire into other alternatives to suppression and “find with particularity” that it is more probable than not that unfairness or prejudice would result from disclosure. The trial court’s order here was not particular regarding resulting unfairness or prejudice and did not consider alternatives, so the Court found the order suppressing records had no proper basis.

Beyond this main holding, the Court discussed several other public records issues:

  • Writs of mandamus remain a proper tool for third parties seeking disclosure of information related to a criminal trial because intervention is unavailable. But the Court acknowledges that Washington’s rule may be out of step with other states that allow direct third-party intervention in criminal cases for the purpose of information gathering.
  • The Court rejected the criminal defendants’ theories that the work-product privilege extends from the prosecutor’s office (from which records were not requested) to the law enforcement agency (from which records were requested). Police are not merely the investigatory arm of the prosecutor. Work-product only includes material prepared by the attorney, not prepared on behalf of the attorney.
  • The PRA exemption for law enforcement investigative records exemption, RCW 42.56.240, has limited application, generally covering only the time before a suspect has been arrested and the matter has been referred to the prosecutor.
     

Washington Supreme Court Issues Comprehensive Public Records Act Decision

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.
 

Ohio Supreme Court Allows Disclosure of "Uncharged-Suspect" Records

On July 20, 2010, the Ohio Supreme Court expanded access to public records formerly protected from disclosure under the “uncharged-suspect” exemption to Ohio’s Public Records Act. The court held that the exemption applies only to portions of records that, if released, could reveal a suspect’s identity. The records in question were not “inextricably intertwined” with the suspect’s identity, so the court ordered disclosure after identifying information was redacted.

The decision was not, however, unanimous. The dissent stated concern that the ruling will weaken the uncharged suspect exemption, impose an onerous burden on trial courts by requiring additional review of portions of records, and create an unworkable redaction standard that may not actually protect suspects’ identities.

How does Washington compare? Like Ohio’s Act, Washington’s Public Records Act exempts certain types of investigative, law enforcement and crime victim information from public inspection. Similarly, the Washington Supreme Court does not support a blanket investigative records exemption, finding that in some scenarios, the trial court should determine on a case-by-case basis whether nondisclosure of all or parts of a requested record is essential to effective law enforcement or for the protection of privacy rights.

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.
 

Washington State Supreme Court Withdraws Yousoufian Opinion

Update 7/5

What does this mean for other PRA cases?  If you have a case at the penalty stage, I'd probably seek a stay because unless the Court adopts the identical test,  if you do it now you'll just have to do it again later.

Original Post

The Washington State Supreme Court has withdrawn its January Opinion in the long-running Yousoufian v. Office of Ron Sims case.  In that Opinion, the Supreme Court had ruled that the $124,000 Public Records Act penalty award against King County was too small.  The Opinion adopted 16 factors trial courts should use to set penalty amounts.  For more details on the Opinion, see this MRSC article.

King County had moved to have the Opinion withdrawn after it was revealed that the Opinion author, Justice Richard Sanders, had a pending appeal in a Public Records Act case, where he was relying on his Yousoufian Opinion to argue that his judgment against the State should be increased.  In light of the recent U.S. Supreme Court holding in Caperton v. Massey that a West Virginia Supreme Court Justice's decision not to recuse himself violated due process, this result is not surprising. 

Here is an article in the Seattle Times on the Supreme Court's ruling.  Here is a post on the Supreme Court Blog about the order.