Attempted Murder For Hire And Public Records

In 2010, Michael Mockovak was found guilty of soliciting and attempting to murder his business partner, among other charges. While incarcerated, Mockovak filed suit under the Washington Public Records Act, chapter 42.56 RCW (“PRA”), against King County and the King County Prosecuting Attorney’s Office, seeking all documents referring to the immigration status of an informant, Kultin, who helped secure Mockovak’s conviction. Although records were disclosed, many were heavily redacted to protect attorney work product. The agencies also withheld Kultin’s National Crime Information Center (“NCIC”) Report, arguing they were barred from disclosing it by federal statute. In affirming the trial court’s decision in favor of the agencies, the Washington Court of Appeals addressed a number of discovery and PRA issues. Mockovak v. King County, No. 74459-3-I (Dec. 19, 2016).  

The PRA Does Not Override Federal Touhy Regulations.  Mockovak’s convictions arose out of a joint federal-state investigation conducted by the Puget Sound Safe Streets Violent Crimes Task Force. The task force included both federal and state law enforcement officers specially appointed to federal positions. Mockovak argued that certain task force documents became subject to the PRA when task force member Carver (also a Seattle Police Department detective) “used” the documents, citing the Washington Supreme Court decision in Concerned Ratepayers Association v. Public Utility District No. 1 of Clark County, 138 Wn.2d 950, 983 P.2d 635 (1999). While the appellate court agreed the task force documents likely qualified as public records under the PRA, that alone did not require disclosure. Because the documents were created by and belonged to a federal agency, the PRA did not permit a Washington state agency to release them in contravention of the federal agency’s regulations. Federal agencies are statutorily authorized to adopt regulations – known as Touhy regulations – governing agency administration, including use and disclosure of records. See 5 U.S.C. § 301.
Public Records Disputes Are Not a Forum to Raise Brady Claims.  Mockovak also argued that he was constitutionally entitled to the requested records under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), which requires the prosecution to turn over material exculpatory evidence to the defense. The Court rejected this argument, citing numerous federal decisions holding that Brady claims are proper only in connection with a criminal proceeding, not a suit for the disclosure of public records. The Court noted that “[t]his is not to say that the PRA trumps or otherwise limits what Brady allows. It simply means that the issue must be litigated in the proper forum.”
Records Were Protected Work Product.  The Court also rejected a number of work product arguments raised by Mockovak. First, King County and the Prosecuting Attorney’s Office’s communications with the U.S. Attorney’s Office were protected as work product under the “common interest” rule, even if there were some “tensions” between the offices regarding the details of Mockovak’s prosecution. Such tensions did not preclude the agencies from sharing common investigative and prosecutorial interests. Further, disclosure of certain documents to “friendly witness” Kultin did not result in a waiver, as he participated in both the prosecution and investigation and shared a common interest in having Mockovak prosecuted.  The Court also held that documents prepared by the U.S. Attorney’s Office were “prepared in anticipation of litigation” – to prosecute Mockovak – even though the U.S. Attorney ultimately agreed that the State should handle the prosecution.  The documents constituted “opinion work product” that was “absolutely immune from disclosure” and, even if regular work product, Mockovak did not demonstrate a substantial need for the documents.
Partial Disclosure of Information Contained in NCIC Report Did Not Waive Federal Exemption. Mockovak’s final argument was that the NCIC Report was improperly withheld because the agencies waived any protection of the report when Carver summarized information he learned from the report in his declaration testimony. The PRA allows agencies to not disclose records when “[an]other statute . . . exempts or prohibits disclosure.” RCW 42.56.070(1). Here, the agencies relied on 28 U.S.C. § 534, governing exchange of criminal identification records between agencies. In rejecting Mockovak’s waiver argument, the Court observed that “a federal statutory bar on disclosure cannot be waived.” Moreover, general discussions of topics or partial disclosures of information contained in a document do not waive an otherwise valid exemption over the document itself. Carver’s references to arrest and criminal history information contained in the NCIC Report were “limited, general, and cursory” and did not waive the protections of the PRA’s “other statute” exemption and 28 U.S.C. § 534.

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.

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.”

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.

Court Agrees -- A Special Meeting is Not a Regular Meeting

In an unpublished opinion, Center for Justice v. Arlington School District, No. 627263-1-I (Sep. 4, 2012), a Washington Court of Appeals affirmed a trial court’s conclusion that a school district’s “special meetings” were not “regular meetings” because they did not occur in accordance with a schedule declared by statute or rule. The school district regularly held bi-monthly “business meetings,” which were properly noticed as “regular meetings” under the OPMA. It often held what it called “study sessions” just prior to the regularly scheduled business meetings, following the OPMA notice requirements for “special meetings.” The Center for Justice (CFJ) argued that, because of their frequency, the study sessions should have been noticed as regular meetings. Noting that the OPMA did not define “regular meetings” for agencies other than those of the state, the court interpreted the statute as anticipating two types of meetings: those with dates fixed by rule or law (regular meetings), and all others (special and emergency meetings). Because the dates of the study sessions were not fixed by rule or law, they were not regular meetings and the District’s use of the “special meeting” notice provisions was proper.

The District had conceded violations of the OPMA relating to 21 executive sessions it had commenced without first opening a meeting. The trial court granted judgment to CFJ and awarded its attorney fees, reduced by a “degree of success” it calculated by dividing 21 sessions by 144 total alleged violations, or a 14.6% success rate. The appellate court concluded that because CFJ had alleged multiple violations for each session, the trial court had committed an arithmetic error—essentially dividing the number of rotten apples by the total number of allegedly rotten apple seeds—to produce a meaningless “percentage.” The court remanded for a re-calculation of the fee award.

The appellate court also awarded attorney fees to CFJ on appeal for establishing that the trial court had erred in its fee calculation. Although the District prevailed on the remainder of CFJ’s claims, because CFJ’s appeal was not frivolous, the District received no fee award.

Denver Post Denied Access to Former Colorado Governor's Personal Cell Phone Records

The Colorado Supreme Court recently held that the Denver Post could not obtain records from the personal cell phone of former Colorado Governor Bill Ritter.  Denver Post Corp. v. Ritter, ---P.3d ---, 2011 WL 2449325 (Colo. 2011).  The Court found that the newspaper did not clearly state a claim that the cell phone bills were public records under the Colorado Open Records Act (“CORA”).

Governor Ritter had a practice of using two cell phones. The first phone was a state-paid Blackberry, which Ritter used almost exclusively for email. The Governor paid for the second phone, which he used for both personal calls and calls he made in his role as Governor.

In 2008, the Denver Post sued Ritter, seeking access to the private cell phone bills, arguing that they were public records under CORA.  The Post asserted that the bills would reveal valuable information about the workings of the state government. CORA defines public records as “writings made, maintained or kept by the state … for use in the exercise of functions required or authorized by law.” § 24-72-202 (6)(a)(I), C.R.S. (2010).  The newspaper claimed that the records met the statutory definition because the former Governor used his personal phone “in the exercise of functions required or authorized by law” and that the phone bills were “made” as a by-product of Ritter’s phone use.  The Post also argued that Ritter was attempting to privatize his conduct by using a private, personal account, and that this was an unacceptable “loophole” in the requirements of CORA.  Slip-Op. at 6.

A majority of the Justices of the Colorado Supreme Court denied the Denver Post’s request, finding that the newspaper’s complaint failed to state a claim that the former Governor’s personal cell phone billing statements were actually public records under CORA.  The Court found that the Post’s complaint was conclusory and did not allege facts demonstrating that Ritter “made”, “maintained” or “kept” his personal cell phone billing records in his official capacity as Governor.  The Court was simply unconvinced by the Post’s efforts to fit the cell phone bills into the statutory definition of a public record.  As such, the Post’s action failed.  Two Justices dissented, opining that the phone bills were, in fact, public records under CORA. These justices noted their concerns that public officials not use “efficiency and convenience as an excuse to shield records of their official conduct from the citizens on whose behalf they serve.”  Slip-Op. at 15.

The Washington State Supreme Court has also addressed a public official’s use of private technology in the context of public records.  In O’Neill v. City of Shoreline, 170 Wn.2d 138, 240 P.3d 1149 (2010), the Court authorized a search of a government official’s personal computer to locate an email (complete with original metadata).  A councilmember had used her personal computer to transact city business.  While there was no question under Washington’s Public Records Act that the email message in O’Neill was a public record, the Court ventured into new territory by allowing the requestor access to a personal, non-government device.  In dicta, the Court explained that the ruling was justified by the Court’s concern for the integrity of the Washington Public Records Act: “We note that this inspection is appropriate only because [the government official] used her personal computer for city business. If government employees could circumvent the PRA by using their home computers for government business, the PRA could be drastically undermined.” 170 Wn.2d at 150.  For more information on this topic, see our prior blog posts on O’Neill v. City of Shoreline and Mechling v. City of Monroe.

Caught Playing Hooky? Using Public Records Requests to Identify Wisconsin Teachers That "Called in Sick" During February Protests

In February, thousands of protestors, including many teachers, attended rallies in Wisconsin’s capitol to protest Governor Scott Walker’s proposed limits on collective bargaining for public workers.  As a result, schools were closed for a day or more in many districts.  Now conservative groups have filed public records requests asking school districts across the state to release the names of teachers who “called in sick” during the protests.

Many districts have complied, but the Madison School District (“District”), which had four days of closures in February, has denied several public records requests.  As reported by the Wisconsin State Journal, the District is concerned that the release of the teachers’ names could “risk the safety of teachers and students, and disrupt morale and the learning environment in schools.”  The requesting groups deny that the information will be used to harm or harass teachers.  However, the District’s counsel believes otherwise, citing “a number of threats” made against board members, administrators and district employees as a result of teachers’ participation in the protests.

Some districts have successfully prevented disclosure of teachers’ names. The Wisconsin Education Association Council argued on behalf of the La Crosse and Holmen School Districts that safety risks outweighed the benefits of disclosure, obtaining an injunction from a La Crosse Circuit Court Judge.

Wisconsin’s Public Records laws do not include a disclosure exemption for general safety concerns. There is an exemption for specific employee records, including “personally identifiable information” such as addresses, phone numbers and social security numbers. Sec. 19.36(1) of the 2003 Wisconsin Act 47.  However, the requestors in this case seek only names, not identifying information.

When there is no established exemption (by statute or common law) and a public records custodian has doubts or concerns about whether to release records, Wisconsin courts perform a balancing test. Sec. 19.35(1)(a).  Records may be withheld only if the public interest in nondisclosure outweighs the public interest in disclosure, as there is a strong presumption of access.  See Matter of Estates v. Zimmer, 151 Wis. 2d 122 (Wis. Ct. App. 1989).

It remains to be seen how the court will balance the competing interests in this case, and whether the District’s safety argument will outweigh the presumption of disclosure that is central to the Wisconsin Public Records Act.

Washington’s Public Records Act is similar, in that there is no blanket exemption for safety or privacy. To prevent disclosure out of concerns for privacy or safety, an agency must prove that disclosure of the information 1) would be highly offensive to a reasonable person, and 2) is not of legitimate concern to the public.  RCW 42.56.050.  Specific personal identifying data is, of course, exempt from disclosure. RCW 42.56.210.  However, names must generally be disclosed.  See John Doe No. 1 v. Reed, __ U.S. ___, 130 S. Ct. 2811, 177 L.Ed.2d 493 (2011) (finding that Washington’s public records act authorized the release of the names of voters who signed referendum petitions); King County v. Sheehan, 114 Wn. App. 325, 57 P.3d 307 (2002) (holding that public records act does not exempt from disclosure the full names and ranks of county police officers).

An article in the May 26, 2011 Seattle Times highlights a recent Seattle “name release” case.  A labor arbitrator, acting at the request of the Seattle Police Officers’ Guild, just ordered the Seattle Police Department to stop releasing the names of officers found to have engaged in misconduct.  It is reported that the city attorneys plan to appeal, believing the decision is in conflict with Washington law.

Pennsylvania County Must Disclose Contractor's Employment Records - Even Though County Doesn't Have Them

Allegheny County, Pennsylvania contracts with hundreds of service providers. One of those contracts is with A Second Chance, Inc. (ASCI), where ASCI evaluates an individual’s qualifications to provide foster care to dependent children. A Pittsburgh television station requested that the County provide the “names, birth dates and hire dates of all employees” of ASCI who provide services to the County. Not surprisingly, the County said that those records were not available to the County and they rejected the television station’s request under the Pennsylvania Right-To-Know-Law (RTKL). Without explaining how the County should get the records, the Commonwealth Court of Pennsylvania (a court whose jurisdiction is generally limited to legal matters involving State and local governments and regulatory agencies) held that the employment records of ASCI were “public records” and accessible under the RTKL. It is unclear what process would be used under the RTKL by a local government to recover such records from a contractor.

In Washington, a contracting agency that provides governmental services is generally considered an agency and subject to the Washington Public Records Act. Clarke v. Tri-Cities Animal Care & Control Shelter, 144 Wn. App. 185 (2008). In the most common situation, the request would be made directly to the contracting agency (in Pennsylvania, ASCI). But in the event a request is not made directly to the contracting agency, but instead to the local government, the local government must either recover the documents from the contractor or maintain a separate court action to protect the local government from liability under the Public Records Act. See, e.g., City of Federal Way v. Koenig, 167 Wn.2d 341 (2009), discussed in the October 23, 2009 posting on this site: “WA Supreme Court Re-Affirms that Public Records Act Does Not Apply to the Judiciary.”

In Washington, as in Pennsylvania, the fact that an agency subject to the Washington Public Records Act does not possess a document does not necessarily preclude agency responsibility for producing a public record. See Concerned Ratepayers v. PUD No. 1, 138 Wn.2d 950 (1999) (design specifications for power plant prepared by PUD’s contractor, but not in possession of PUD, required to be disclosed).

"Confidential" But Is It?

In this era of WikiLeaks’ disclosure of secret State Department and military cables, the question of what is and what is not “confidential” government information has become more opaque.

Conflicting viewpoints on the issue of what is “confidential” also arise in the local government context, as reported in the February 28, 2011 edition of the Everett Herald: “Legality of disclosing executive session information not an easy call.”

The Everett Herald reported on the censure of an Everett School Board member for disclosing information from a closed, executive session about a potential building purchase. But, the newspaper noted there is a real dispute between the school board and the censured school board member about whether the information she discussed potential acquisition of an office building for multiple educational uses was already public knowledge.

The Everett Herald article points to a continuing dilemma for public officials in Washington, especially for an elected official who finds conflict between the official’s interest in wide ranging conversations with constituents, and the official’s duty to the office to which elected. Washington law expressly prohibits a public official from “disclosing confidential information gained by reason of the officer’s position.” RCW 42.23.070(4).

For elected board members, confidential information is most frequently obtained in a part of a meeting when in executive session under one of the reasons listed in RCW 42.30.110. Listed as the second of those reasons is for an executive session to “consider the selection of a site or the acquisition of real estate by lease or purchase when public knowledge regarding such consideration would cause a likelihood of increased price;” – the specific provision that is the subject the Everett School Board censure.

One can well understand that if a government’s interest in purchasing a specific building or parcel of land and its ultimate price limit is known, that this information may well cause the government and its constituents to pay more that it otherwise would. Thus the justification for an executive session in the first place and the parallel prohibition against disclosing confidential information all make sense. But what is and what is not confidential is often disputed, as illustrated by the Everett School Board controversy. This also highlights the common law and statutory requirements that the elected official’s first responsibility is to the agency, notwithstanding the interest in public communications. See, RCW 42.23. 070(3) (prohibiting a municipal officer from holding another position that would “require or induce” the official to disclose confidential information acquired by reason of the public office). Best practice for any governing board facing this dilemma is to explicitly identify in the executive session itself what it considers to be the particular elements that are and should remain confidential.

King County Council Acts to Address Social Media and Public Record Laws

The King County Council recently took action to ensure that the County’s use of social media, including Twitter and Facebook, complies with the County’s obligations under various King County and Washington public record laws, including Chapter 2.14 K.C.C. and Chapters 40.14 and 42.56 RCW. 

A number of County agencies are beginning to use online social media to engage and communicate with the public.  For example, Metro Transit uses its Twitter page to update commuters on the status of various bus routes – a tool that was especially important during the recent November snow storm. In light of the growing use of Facebook, King County Elections now uses its Facebook page to encourage young voter registration and to educate King County residents about the County’s mail-in ballot system. The King County Council wants to ensure that public posts on these and other County social media sites comply with public record laws.

The ordinance passed by the King County Council (Ordinance 2010-0507, Dec. 13, 2010) created a Social Media Advisory Group responsible for providing the Council with policy options for ensuring ongoing compliance. The Advisory Group will be made up of four representatives of the King County Public Records Committee, together with representatives from various King County agencies and local not-for-profit agencies.

The Advisory Group is to produce a Social Media Policy Options Report for the Council by March 31, 2011. The report is to include a range of policy recommendations, including: (1) options for effective use of social media to communicate with the public; (2) an online training module for employees authorized to use social media on behalf of King County; (3) a description of existing policies and laws that regulate King County’s use of social media; and, (4) options for cost effective ways to address the public records retention requirements.

The Ordinance also directs King County agencies to identify those employees authorized to use social media for County business and to ensure that those employees complete the training program developed by the advisory group. 

The list of public agencies using social media continues to grow. As new forms of social media are developed and adopted, government agencies should be proactive to ensure compliance with applicable public record laws. See Sven Peterson’s article: “Public Records can only be Destroyed in Accordance with Appropriate Records Retention and Destruction Policies.”  

Meetings of Committees Attended by Other Members May Become a Meeting of the Full City Council (If Quorum) and Require Advance Notice as a Full Council Meeting

The Washington Attorney General concluded that committee meetings of a city council may require additional notice when enough other council members attend the committee meeting to make a quorum of the full council. Interpreting the Open Public Meetings Act (OPMA), the Attorney General Opinion No. 9 (AGO 2010 No. 9, November 30, 2010), the Attorney General concluded:

The Open Public Meetings Act requires that notice be properly given of a meeting of the governing body. This requirement is not satisfied by notice given for a meeting of a standing committee of a city council as a governing body, where a quorum of members of the city council attend the meeting and take action as defined in the act, such that a meeting of the city council as a governing body takes place.

A reference to the Attorney General Opinion follows:

Particularly important to note is that discussion by a committee may be an “action” under the OPMA definitions. As a result, a better practice for an agency that uses committees (whose meetings are subject to the Open Public Meetings Act) is to include as part of meeting notice (in adopted code, resolution or otherwise) that the committee meeting is also a meeting of the legislative body (e.g., city council). An additional report on the Opinion is at

Councilmember Sues for Mayor's Failure to Limit Public Comment at Council Meeting

The tension between open meeting laws and laws restricting use of public property for political activities is highlighted by a reported incident out of the City of Sumner, Washington. According to the Tacoma News Tribune, a councilmember has filed a complaint with the State’s Public Disclosure Commission. The complaint is reported to assert the Mayor and other City officials allowed political speech (criticism of the councilmember who was running for a state legislative office) to continue at a public meeting of the Sumner City Council.

Washington, like many states, has a public meeting law that requires public access to meetings of a municipal governing body and related agencies. While public access does not grant a public right to speak at such a meeting (the public has a right to speak at public hearings, not meetings), local councils and commissions regularly provide for citizen comment at some time during a meeting’s agenda. The presiding officer of such a meeting can control the meeting to prevent improper conduct by a citizen. See Council Meeting Conduct and Citizen Rights under the First Amendment.

But, in addition to laws providing for open public meetings, many states prohibit the use of public facilities, funds and personnel to advocate for a political campaign or to support a ballot measure. See RCW 42.17.130, the Washington State law that address this issue. According to the News Tribune, the Sumner councilmember urged the Mayor to cut off a speaker at a city council meeting. The speaker was, according to the councilmember, using the council meeting to advocate for that councilmember’s opponent in the legislative race (and using the City facilities for political activity). The mayor, and apparently the rest of the city council, disagreed with the Councilmember under fire, and the speaker was allowed to continue. The Public Disclosure Commission will now decide whether to reconcile the potentially competing public policies of open public meetings and the prohibition on use of public facilities for campaign activity.

Metadata and the Courts

Metadata is the new worry of public disclosure requests. Within the hard drive of any standard computer, a host of metadata is created with each underlying electronic document. Metadata describes the document’s history, tracking and management.

At least in Arizona and Washington that metadata is now also subject to a public disclosure, along with the underlying document itself, when requested. A recent Phoenix Law Review article analyses this proliferating phenomenon. David W. Degnan, Accessing Arizona’s Government: Open Records Requests for Metadata and other Electronically Stored Information after Lake v. Phoenix, 3 Phoenix L. Rev. 69 (2010).

Lake v. Phoenix, 222 Ariz. 527, 218 P.3d 1004 (2009), involved a request by a demoted City of Phoenix police officer, attempting to show through documents’ metadata that comments about his performance were backdated to conceal retaliation for his whistleblowing activities. The Arizona Supreme Court held that this metadata (showing the creation and history of the documents) was a public record and must be disclosed. In Washington, the State Supreme Court arrived at the same conclusion regarding metadata in O’Neill v. City of Shoreline, _____Wn.2d____, ____P.3d____, (2010) WL 3911347 (2010). There, the requestor of the metadata was attempting to find transmission history of the author and recipients of an e-mail. The email was originally sent to the Deputy Mayor’s home computer, and later discussed in a Council meeting. A print copy of the email was provided to the requestor in response to the original request. But, the requestor later sough the metadata for the email that had by then been deleted from the Deputy Mayor’s home computer. The Washington Supreme Court found that the metadata associated with that e-mail was also a public record and that the computer drive on the Deputy Mayor’s home computer should have been searched to find that metadata. The email, and the underlying metadata, had become part of the City’s public records.

The issues with the nature of electronic records and their storage are multiplying. As the Law Review article points out, a study published as early as 2003 suggested that 93% of all communication was then conducted in an electronic medium; and the percentage has only risen. In addition, there are divergent standards for keeping and retrieving electronic records in response to actual or threatened litigation in contrast to public records act requirements. In electronic discovery, there can be a court enforced reasonableness standard. In the public records context there may be no such limitation. But, public records laws in Washington and most other jurisdictions do not require a public agency to produce any new document or summarize documents in response to a public records request. And, a courteous discussion with a requestor may eliminate the need to search for or retrieve metadata associated with any requested documents, as the requestor may have no interest in that level of electronic scrutiny.

The Law Review article concludes with the well recognized caution that in the end there “is the need for state and local government agencies to have electronic record management procedures (and resources) in place to respond quickly and efficiently to future open records requests involving ESI [electronically stored information].” The record management systems for ESI must also include metadata, at least in Arizona and Washington.

Ohio Supreme Court Holds City May Maintain 3X5 Cards for Record Management

A City of Cleveland law requires daily reporting by pawnbrokers of their transactions. For years, that reporting has been through the filing of 3X5 cards (double sided). A lower court had held that such an "antiquated" system violated the Ohio public record laws. The Ohio Supreme Court disagreed and reversed. Like the Washington Public Records Act, the Court held that an Ohio city had no duty to maintain its records in a particular format, and was not required to create or provide access to nonexistent records. As a result, people seeking access to pawn records in Cleveland must play the cards they are dealt.

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