PRA Inquiries into Washington State's "Shadow Governments"

Arthur West continues his efforts to provide Washington’s appellate courts with the opportunity to define the scope and breadth of the Public Records Act. Rather than keep all the fun for itself, the Supreme Court graciously shared the opportunity to decide Mr. West’s latest appeal with Division II, transferring Mr. West’s request for direct review to the lower court. Division II affirmed the trial court in an unpublished opinion, West v. Gregoire, No. 42779-6-II (Sep. 11, 2012).

Apparently interested in reviewing documents relating to the Washington State Association of Counties, Mr. West submitted a memo to the Governor with the title “RE: ATTENDANCE AT SECRET SHADOW GOVERNMENT EVEN, AKA (WSAC 2009 ANNUAL CONFERENCE).” (Emphasis in Original). The Governor’s office did not immediately recognize that the memo contained a request for public records, an error Mr. West pointed out two weeks after submitting the memo. The Governor’s office offered to provide an estimate of response time within two days, but Mr. West stated that he had a litigation deadline six days away. The Governor’s office emailed him 57 pages of responsive documents the next day, then provided an additional 299 pages of documents two weeks later.

The Governor’s office withheld, under a claim of executive privilege, a document authored by one of the Governor’s Executive Policy Advisors. Mr. West sued under the PRA. After an in-camera review, the trial court concluded that the document contained no advice to the Governor and was thus subject to disclosure regardless of whether executive privilege exists in Washington. The Governor’s office disclosed the document that day.

The trial court awarded Mr. West $25/day in statutory penalties, excluding 22 days which the trial court concluded was a reasonable period for the Governor’s office to respond. West petitioned the Supreme Court for direct review of the penalty, and the Governor’s office cross-appealed. The Supreme Court transferred the case to Division II, which affirmed on all points. The court concluded that the statutory language providing that the prevailing requester is entitled to a statutory penalty “for each day that he or she was denied the right to inspect or copy said public record” necessarily included a reasonable time period for the government to respond to a request. That is, the government does not “deny” the right to inspect a record during the time reasonably necessary to gather responsive documents.

Both parties appealed the award of a $25/day penalty. Division 2 concluded that under the list of mitigating and aggravating factors contained in the Yousoufian V case, the amount was not "manifestly unreasonable" and affirmed.

Washington Association of County Officials Subject to Open Public Meetings Act

In 1959, the Washington legislature recognized the Washington Association of County Officials (WACO) as a statewide “coordinating agency” of county officials. In Washington State, many counties have independently elected assessors, auditors, clerks, coroners, sheriffs, treasurers and prosecuting attorneys. These positions are separate from the separately elected county commissioners or county councilmembers and executive. WACO is also distinct from the Washington State Association of Counties, Washington (WSAC), Public Ports Association and similar organizations. In 2008, a claim was brought against WACO claiming that it was subject to the Washington Open Public Meetings Act or “OPMA.” OPMA had been adopted in 1971 as part of a package of open government provisions, including campaign finance and public record disclosure.

The Court of Appeals in 1999 determined that both WACO and WSAC were subject to the public records portions of the 1971 initiative. Telford v. Thurston County Board of Commissioners, 95 Wn. App. 149, 974 P.2d 886 (1999). Questions remain, however, regarding the application of that law to the Public Records Act and OPMA. See Attorney General Opinion 2002 No. 2, finding the Telford analysis must be applied on a factual basis to determine the specific application of the components of the Public Disclosure Act to any particular entity, such as WSAC. The Telford court considered the following four factors to determine the application of the campaign finance provisions to an entity: 1) the entity’s governmental function; 2) the entity’s government funding; 3) governmental control over the entity; and, 4) the entity’s origin.

On June 1, 2011, the Court of Appeals in West v. WSAC, Court of Appeals No. 39366-2, applied those same factors to determine that WACO was also subject to OPMA. The court recognized that the OPMA portion of the Public Disclosure Act does not define “state agency.” This differs from the campaign finance and public records provisions of the public disclosure laws. “Nevertheless, because we construe the OPMA liberally to reach its intended purpose, we hold that for purposes of the OPMA, a “state agency” may be an association or organization created by or pursuant to statute which serves a statewide public function.” The court relied on the legislature’s formal recognition of WACO in 1959 – at WACO’s own request – in support of its determination that WACO was a public agency subject to the OPMA. Courts in other jurisdictions, however, have reached different results. See our March 31, 2011 blog posting.