Lyft Inc. and Rasier LLC (collectively, “Lyft”) filed suit under Washington’s Public Records Act, ch. 42.56 RCW (“PRA”), seeking to enjoin the City of Seattle from releasing quarterly zip code reports Lyft submits to the City pursuant to local ordinance. Lyft asserted that the reports are protected from public disclosure because they are trade secrets under the Uniform Trade Secrets Act, ch. 19.108 RCW (“UTSA”). The superior court entered a permanent injunction preventing release of the zip code reports, and the Washington Supreme Court accepted direct review of the court’s decision.

In a 5-4 decision, the Washington Supreme Court reversed the order granting injunctive relief. First, the Court determined that, while the evidence was mixed and the question was not beyond debate, substantial evidence supported the superior court’s findings that the zip code reports were trade secrets within the meaning of the UTSA.

Continue Reading Washington Supreme Court Holds Trade Secrets Not Categorically Excluded From Disclosure Under State Public Records Act, More Stringent Injunction Standard Applies

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

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

In the third of a series of cases, the Washington Court of Appeals in White v. Clark County [White III] holds ballot secrecy extends after mandatory retention periods. In White v. Clark County (2015) [White I] and White v. Skagit County (2015) [White II], the Court of Appeals previously held pre-tabulated ballots are exempt from production in response to a records request under Washington’s Public Records Act (PRA), chapter 42.56 RCW. Because the requests associated with White I and White II were for ballots stored within mandatory retention periods, the decisions did not directly control the request in White III for ballots stored after those periods.

Immediately after tabulation, “all ballots counted at a ballot counting center must be sealed in containers … and be retained for at least sixty days….” The sealed containers may only be opened by the canvassing board for the canvass, a recount, random checks, or by court order. Plaintiff Timothy White (the requester) argued that, after the mandatory retention period, ballots are no longer required to be kept in secured containers and are therefore subject to production in response to a public records request. The Court of Appeals disagreed:

Continue Reading Washington Court of Appeals Reaffirms: Ballots Are Secret

On Friday, July 7, the United States Court of Appeals for the Third Circuit concluded that photographing, filming, or otherwise recording police activity in public “falls squarely within the First Amendment right of access to information.” With this holding, the Third Circuit joined the “growing consensus,” of the Circuit Courts of Appeal: the First, Fifth, Seventh, Ninth and Eleventh Circuits have previously reached the same conclusion.

In Fields v. City of Philadelphia, No. 16-1650 (3d Cir. July 7, 2017), the Court addressed the claims of two plaintiffs. The first, Amanda Geraci, filmed police arresting a protester at a 2012 anti-fracking protest in Philadelphia. After she began filming, an officer pinned her against a wall, preventing her from recording the arrest. The second, Richard Fields, used his iPhone to take a photograph of police breaking up a 2013 party. An officer saw Fields taking a photograph and arrested him, issuing Fields a citation. Neither Fields nor Geraci interfered with the police.

Continue Reading Third Circuit Joins “Growing Consensus” to Hold First Amendment Protects Right to Record Police Officers Conducting Official Duties in Public

The Washington Court of Appeals declined to decide what it called an “interesting and important issue” regarding an agency’s obligation under the Washington Public Records Act, Chapter 42.56 RCW (PRA), to obtain records from a third party in response to a public records request. Because the record and briefing on appeal left “unanswered factual questions,” the court vacated the trial court’s order granting summary judgment in favor of the Washington Department of Corrections (DOC).

In Baker v. Department of Corrections, No. 34967-5-III (Wash. App. June 29, 2017), a DOC inmate requested copies of negotiable financial instruments deposited by DOC into his inmate trust subaccount. With the assistance of Bank of America (BOA), DOC manages this internal trust accounting system to assist with inmate finances, such as an inmate’s court-imposed financial obligations. DOC scans the front and back of negotiable instruments (e.g., checks or money orders) with BOA’s proprietary software and transmits the digital images to BOA. The digital images are not stored on DOC’s system. DOC then destroys the paper copies of the negotiable instruments after a certain period of time.

Continue Reading Documents Held by Third-Party Vendor: An “Interesting and Important” Washington Public Records Act Issue Left Unresolved

In its second decision related to the Port of Vancouver’s lease of property for a new rail terminal facility to export petroleum products, 1 the Washington Supreme Court held that the Port appears to have violated the state’s Open Public Meetings Act, ch. 42.30 RCW (OPMA), in its discussion of the lease during five executive sessions held in 2013.

The case centers on RCW 42.30.110(1)(c), which permits public agencies to meet in executive session to “consider the minimum price at which real estate will be offered for sale or lease when public knowledge regarding such consideration would cause a likelihood of decreased price.” After considering the plain language of the statute, its legislative history, and the practical impacts of a narrow interpretation, the Court unanimously adopted a narrow reading of the statute:

Continue Reading Washington Supreme Court Holds That Executive Sessions On Real Estate Sales And Leases Must Be Focused On Minimum Price

By Jake Thomas from The Columbian

A Superior Court judge ruled Friday that Clark County violated the state’s public records act and must pay $15,750 in penalties for mishandling a dispute with former Councilor David Madore over the release of messages from his private cellphone.

The ruling from Judge Daniel Stahnke stems from a lawsuit filed last year by Community Planning Director Oliver Orjiako that alleged that the county didn’t adequately respond to his public records request for texts from Madore’s cellphone related to county business.

The lawsuit, which was related to harassment and whistleblower complaints Orjiako filed against Madore, cited Nissen v. Pierce County, a 2015 state Supreme Court decision that determined that communications generated on elected officials’ personal devices are public records if they pertain to public business.

Continue Reading What Happens When A County Elected Official Does Not Produce Records? Washington State Court Finds County Liable For Official’s Actions

On May 16, 2017, Washington Governor Jay Inslee signed two public records bills passed by the legislature in April, Engrossed Substitute House Bill 1594 and Engrossed House Bill 1595.

EHB 1595 addresses the costs associated with responding to requests made under the Washington Public Records Act, Chapter 42.56 RCW (“PRA”).

First, the bill permits agencies to charge for the cost of producing electronic documents, including costs of transmitting electronic records, the physical media device provided to the requester, and the costs of electronic file transfer or cloud-based data storage. Agencies may calculate their own actual costs, or charge default amounts set by the bill if making those calculations would be unduly burdensome. The bill’s default amounts are ten cents per page for scanning records; five cents for every four files delivered to the requester electronically; ten cents per gigabyte for electronically transmitted records; or a flat fee of up to two dollars as long as the agency reasonably estimates the cost will equal or exceed that amount.

Continue Reading Governor Signs Two Bills Amending Washington’s Public Records Act

A Washington Court of Appeals held that the Public Employees’ Collective Bargaining Act, chapter 41.56 RCW (PECBA), is not an “other statute” exempting records from disclosure under the Public Records Act, chapter 42.56 RCW (PRA), because the PECBA does not “expressly prohibit or exempt the release of specific records or information.” SEIU 775 v. Freedom Found., No. 48881-7-II (Apr. 25, 2017). This case represents the latest in a string of PRA disputes between local chapters of SEIU and the Freedom Foundation. In two opinions issued in 2016 (see here and here), the court addressed two separate disputes over the “commercial purposes” exemption of the PRA, RCW 42.56.070(9). SEIU is the union representing the individual workers who deliver personal care services to functionally disabled persons.

This latest lawsuit arose out of the Freedom Foundation’s request for Department of Social and Health Services (DSHS) records regarding the times and locations of trainings and meetings for the workers. The meetings were held at state facilities and not open to the public; and, DSHS provided time for SEIU to meet with the workers at these meetings. After receiving notice of the Freedom Foundation’s request from DSHS, SEIU sought to enjoin release of the records, concerned that the Freedom Foundation intended to show up at these meetings to discourage the workers from participating in the union.

Continue Reading Washington Court Holds Public Employees’ Collective Bargaining Act Does Not Exempt Information from Public Disclosure