In Wade’s Eastside Gun Shop, Inc. v. Department of Labor & Industries, the Washington Supreme Court holds that trial courts have discretion to impose Public Records Act penalties on a “per page” basis. The Court considered a number of factors in affirming the trial court’s considerable discretion. Penalties are assessed for withholding “such public record,” and the broad definition of a “public record” includes any “writing” (which, in turn, includes “all papers”). “A single page fits within the plain language of this broad definition.” The PRA also expressly provides that the penalty determination “shall be within the discretion of the court.” Finally, modern public records may be difficult to segregate under any bright-line rule (e.g., metadata, compiled transcripts of individual text messages, etc.). Ultimately, the Court reasoned, trial courts need flexibility “to respond appropriately to PRA violations in this age of rapidly advancing technology.” Under Wade’s, a trial court will continue to enjoy broad discretion to apply penalty formulas that result in a penalty amount that the court believes is appropriate to a particular PRA violation.
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.
The Public Records Act (PRA) requires that when an agency withholds or redacts records, its response “shall include a statement of the specific exemption authorizing the withholding of the record (or part) and a brief explanation of how the exemption applies to the record withheld.” RCW 42.56.210(3). In a 5-4 decision, the Washington Supreme Court held in City of Lakewood v. Koenig that an agency’s violation of this requirement entitles the requester to attorney fees and costs, regardless of whether the records were properly withheld.
In this case, David Koenig had requested records from the City of Lakewood relating to certain police officer incidents. In its response, the city redacted, among other things, driver’s license numbers from the records, citing to various statutory provisions without additional explanation. In a majority opinion written by Justice Steven González, the court found that the city’s response violated the PRA because the city either failed to cite a specific exemption or failed to explain how the particular statute applied to the redacted driver’s license numbers in the specific records produced. As a result, “the burden was shifted to the requester to sift through the statutes cited by the city and parse out possible exemption claims.” Opinion at 7-8. Because the PRA provides that costs and reasonable attorney fees shall be awarded to a requester for vindicating “the right to receive a response,” the court held that Koenig was entitled to his attorney fees and costs, including those on appeal. Id. at 10-12.
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.
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.”
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).
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.
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).
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.”
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.