In a five to four decision, the Washington Supreme Court concluded that emails exchanged between two separate public agencies – Kittitas County and the Washington State Department of Ecology  – were protected under the work product doctrine and therefore exempt from disclosure under the Washington Public Records Act, Chapter 42.56 RCW.

Kittitas County and the Department of Ecology both investigated a company, Chem-Safe, for violations of waste-handling requirements. During litigation regarding the Notice of Violation the County issued to Chem-Safe, emails were exchanged between the County and Ecology. The County later withheld these emails from production under the Public Records Act, claiming work product protection.

Continue Reading <i>Kittitas County v. Allphin</i>: Emails Shared Between Two Washington Agencies Protected Under Work Product Doctrine

The Washington Court of Appeals, Division One, has held that death-scene images of Kurt Cobain are exempt from public disclosure under the Washington Public Records Act, ch. 42.56 RCW (“PRA”). Lee v. City of Seattle.

Richard Lee, a “local conspiracy theorist who believes that Mr. Cobain was murdered,” made a public records request to the City of Seattle for the investigative file regarding Cobain’s death. The City provided records but withheld death-scene photographs. Lee filed a lawsuit alleging that withholding these photographs violated the PRA. Cobain’s daughter and widow intervened in the lawsuit. The trial court concluded the records were properly withheld and granted the Cobains’ motion for a permanent injunction to prevent release of the photographs.

Continue Reading Death-Scene Images of Kurt Cobain Exempt from Disclosure Under Washington’s Public Records Act

By Oskar Rey, MRSC 

The public records reporting system is now open — Are you ready?

In 2017, the state legislature adopted ESHB 1594, which made significant amendments to public records laws. One of those changes is a new reporting requirement in RCW 40.14.026(5). It requires each agency with actual staff and legal costs associated with fulfilling public records request of at $100,000 during the prior fiscal year to report to the Joint Legislative Audit and Review Committee (JLARC) on 18 different public records metrics.

JLARC has put together a public records reporting page with a lot of helpful information designed to help agencies comply with this new reporting requirement, including agency guidance, FAQs, and cost estimation worksheets. In addition, the JLARC public records reporting system is now open, and instructions for using the system have been provided.

This blog post will cover some of the questions MRSC has received about JLARC public records reporting requirements.

Are we an “agency” for the purpose of ESHB 1594?
The Public Records Act (PRA) definition of agency applies, so if your agency is subject to the PRA, then ESHB 1594 applies to you. But, as detailed below, the law treats agencies who spend more than $100,000/year in staff and legal costs associated with fulfilling record requests differently than those who spend less.

What is the deadline for reporting for the initial 2017 reporting period?
The deadline is July 1, 2018. However, that day is a Sunday, so you might want to calendar it for Friday, June 29, 2018.

What is the 2017 reporting period?
ESHB 1594 took effect on July 23, 2017, so the 2017 reporting period is July 23, 2017 to December 31, 2017. After that, the reporting periods will be for the entire preceding calendar year.

I am sure my agency did not meet the $100,000 threshold. Are we in the clear?
No, your agency must still respond. Even if an agency did not meet the spending threshold, it must still log onto the JLARC public records reporting system and attest to that fact. Agencies will not submit their calculations in this regard. Also, an agency may choose to voluntarily report even if it does not meet the $100,000 threshold.

Are there tools to help estimate the costs of fulfilling public records costs?
Yes, tools are available. JLARC has provided a $100,000 Tool to help you determine if your agency is required to report and a Public Records Cost Estimation Worksheet for agencies that do report. These tools are provided as a convenience — agencies are not required to use them.

What if we didn’t closely track the metrics for the initial reporting period?
Here is what JLARC says about that in its Agency Guidance (p. 3):

Because JLARC guidance was not published until mid-November, JLARC recognizes that many agencies did not collect data in a manner consistent with these guidelines. With that said, agencies should make a good faith effort to provide the best quality data available.

I don’t understand one of the metrics — who can I turn to for help?
Check out the resources available on the JLARC public records reporting page, especially the Metric FAQs and the Agency Guidance. If you still need help, you can email JLARC at JLARCPublicRecStudy@leg.wa.gov.

Will JLARC audit the accuracy of information submitted?
No, each agency is responsible for the accuracy of the data it submits.

What will JLARC do with this information?
JLARC will collect the data reported and will provide a method for the public and the state legislature to view it. JLARC already performs a similar function with respect to municipal use of lodging tax revenues, and it may be that a similar approach will be used for public records.

What are the penalties for failure to report?
Failing to report would constitute a violation of RCW 40.14.026(5), but the statute does not create specific penalties. Failure to report would also be apparent to the public once JLARC publishes the data it receives from agencies.

How long will these reporting requirements last?
ESHB 1594 does not contain a “sunset” date for reporting, so this should be viewed as an ongoing annual requirement.

Under Washington state law, “the records of a person confined in jail shall be held in confidence” and made available only to criminal justice agencies as provided by law. RCW 70.48.100(2). In Zabala v. Okanogan County, the requester submitted five Public Records Act requests to the Okanogan County Sheriff’s Office and the Okanogan County Prosecuting Attorney’s Office. In combination, the requests sought any and all records, created in the last three years, related to monitored or recorded phone calls of inmates in the Chelan, Douglas, or Okanogan County jails, including voicemail, e-mail, audio, notes, reports, transcripts, arguments, pleadings, motions, briefs, memos, and letters. The agencies denied the requests as not being for identifiable records and because any responsive records were exempt from public disclosure.

Continue Reading Washington Court of Appeals Holds Jail Records Exemption Extends to Jail Recordings and Related Records Even if Created or Held by Another Agency

The first quarter of 2018 has seen a number of open government rulings and developments in Washington state. From a flurry of court decisions, legislative action, and a veto by the governor, to decisions addressing exemptions for education and law enforcement records, the summary below recaps recent legal developments under Washington’s Public Records Act (PRA), ch. 42.56 RCW.

Continue Reading First Quarter Public Records Roundup

Article II, Section 9 of the Montana state constitution protects the right to examine documents of public agencies. In Nelson v. City of Billings, the Montana Supreme Court held the state constitution did not require disclosure of attorney-client communications or attorney work product.

Article II, Section 9 provides, “No person shall be deprived of the right to examine documents of all public bodies or agencies . . . except in cases in which the demand of individual privacy clearly exceeds the merits of public disclosure.” Kevin Nelson claimed that because the only express exemption to this constitutional provision was “individual privacy,” attorney-client and work product documents were not exempt from disclosure.

Continue Reading Montana Supreme Court Holds Documents Protected by Attorney-Client Privilege or Work Product Not Subject to Disclosure Under State Constitution

The Washington Court of Appeals, Division Two, held that a Puyallup City Council member’s Facebook posts were not “public records” under Washington’s Public Records Act, Chapter 42.56 RCW, because the council member did not prepare the records within the scope of her official capacity as a member of the City Council.

The litigation centered on plaintiff Arthur West’ public records request to the City asking for all records sent to or received by City Council Member Julie Door’s “Friends of Julie Door” Facebook site. The City conducted a search of its own records and located one email, which it disclosed. The City did not disclose any posts on the “Friends of Julie Door” site.

Continue Reading Washington Court of Appeals Holds City Council Member’s Facebook Posts Are Not Public Records

The Washington State Attorney General filed an amicus brief on Wednesday, January 10, 2018, arguing that the Public Records Act, Chapter 42.56 RCW, applies to the Washington State Legislature and individual legislators. The brief was filed in a lawsuit pending in Thurston County Superior Court.

The plaintiffs in the matter, a group of news organizations including the Associated Press and The Seattle Times, submitted public records requests to individual legislators. In its own motion, the legislature takes the position that several amendments to the PRA, including amendments in 2007, removed legislators from the PRA. The 2007 amendments essentially removed the definition of “state legislative office” from the PRA by removing a cross reference to the campaign finance statutes, formerly Chapter 42.17 RCW.

Continue Reading Washington State Attorney General Argues Legislator Records are Subject to Public Disclosure

In Eggleston v. Asotin County, No. 34340-5-III, 2017 WL 6388976 (December 14, 2017), Division Three upheld the trial court’s decisions, holding that (1) an email between a contractor and subcontractor is not a “public record,” and therefore not subject to disclosure, and (2) preliminary drafts of a bridge project, which were not evaluative and contained no substantive comments, did not fall within the deliberative process exemption from disclosure, and thus should have been provided to requestor Eggleston. The court affirmed an award of $49,385.00 in penalties and $50,133.67 in attorney fees, staff fees and costs.

Asotin County engaged TD&H, an engineering firm, to replace a bridge. TD&H, in turn, was concerned about possible archaeological sites near the bridge, and consulted a geologist, Kevin Cannell, ultimately engaging him to perform a preliminary archaeological and cultural review of the proposed roadway for the bridge project. Before TD&H engaged him, Mr. Cannell had sent TD&H an email, offering his services. It is that email, from January 2002, that Eggleston sought.

Continue Reading An Email Between Vendor and Subvendor is Not a “Public Record”; Deliberative Process Exemption Does Not Apply Unless Opinions or Recommendations are Made

On November 17, 2017, the Joint Legislative Audit and Review Committee (JLARC) issued guidance on the new reporting requirements enacted by the legislature in 2017. Engrossed Substitute House Bill 1594, which became effective July 23, 2017, requires all agencies to maintain a log of all public records requests submitted to the agency, and imposes more detailed reporting requirements for agencies that spend at least $100,000 on staff and legal costs associated with fulfilling public records requests in the past fiscal year. See RCW 40.14.026(4), (5). These detailed reporting requirements include the average time to acknowledge and close out records requests; the number of requests abandoned by requesters; the type of requester (i.e., law firm, media, incarcerated persons, etc.), to the extent that information is known; and the estimated agency staff time spent on each request. RCW 40.14.026(5).

The JLARC guidance document provides agencies direction on the detailed reporting requirements, including (1) how to calculate the $100,000 threshold and (2) for agencies exceeding the $100,000 threshold, what data they should be collecting for submission by July 1, 2018.

Continue Reading Public Record Reporting Requirements: Guidance Issued for Washington Public Agencies