Immigration judges are career civil-service employees in the Department of Justice’s executive office. The judges preside over matters such as deportation, exclusion, removal and rescission proceedings for non-citizens charged with immigration law violations. The American Immigration Lawyers Association submitted a request under the federal Freedom of Information Act (FOIA) for records about complaints filed against immigration judges. The Department of Justice disclosed thousands of pages of records, but redacted (1) information that disclosed the identity of individual judges, and (2) information that was determined to be non-responsive to the specific request regarding judicial conduct. The U.S. Court of Appeals for the District of Columbia found that the Department of Justice erred with respect to both categories of redactions. American Immigration Lawyers Association v. Executive Office for Immigration Review, 830 F.3d 667 (D.C. Cir. 2016). The Court concluded that the government’s across-the-board approach to redacting immigration judges’ names was improper and remanded the case for rehearing with a more particularized inquiry into the propriety of redacting individual judge’s names. With respect to redactions based on non-responsiveness, the Court found no basis in FOIA for such redactions. The government was without authority to redact information within the records on the basis of non-responsiveness when no statutory exemption shielded the information from disclosure.
The City of Seattle owns, and for many years operated, the Woodland Park Zoo. Acting under statutory authorization, the City contracted with the Woodland Park Zoo Society, a privately formed not-for-profit corporation to manage and operate the Zoo. Following the lead of earlier decisions of the Washington Court of Appeals and those of other states’ courts, the Washington Supreme Court confirmed the application of a four-part balancing test to determine whether an entity is the “functional equivalent” of an agency and therefore subject to the state’s Sunshine Laws. Fortgang v. Woodland Park Zoo, No. 92846-1 (Jan. 12, 2017). The four factors (known in Washington as the “Telford test”) are:
- whether the entity performs a government function;
- the extent to which the government funds the entity’s activities;
- the extent of government involvement in the entity’s activities; and
- whether the entity was created by the government.
The Zoo Society operates the Woodland Park Zoo under an operations and management contract with the City of Seattle. The case arose from the Zoo Society’s refusal to provide documents to a requester seeking information about the Zoo’s former elephant exhibit. The Zoo Society denied that it was an agency subject to the state’s Public Records Act (PRA), and the requester brought suit. Of the four Telford factors, the Court found only the second to be inconclusive. Under the Telford analysis, the Court held that the Zoo Society is not the functional equivalent of a government agency.
A Washington court of appeals ruled that the City of Lynnwood violated the Washington Public Records Act (“PRA”) when it failed to provide “any reasonable estimate when records would be provided” in its initial response to a broad records request. Hikel v. City of Lynnwood, No. 74536-1-I (Dec. 27, 2016).
The appellate court affirmed the trial court’s rejection of other PRA claims by a former City Councilmember, represented in the case by the City’s former mayor. The trial court had earlier rejected all of the claims.
But the appellate court found that, despite the City’s efforts to comply with the PRA, the initial response to the request did not satisfy RCW 42.56.520. That provision requires a response within five business days of receipt of the request. If the agency needs additional time, it must acknowledge the request and include “a reasonable estimate of the time the agency…will require to respond.” RCW 42.56.520(3). A reasonable estimate of the time needed to provide a first installment of records has been found compliant. Opinion at p. 10 (citing Hobbs v. Wash. State Auditor’s Office, 183 Wn. App. 925, 943, 335 P.3d 1004 (2014)).
The City’s initial response had asked for clarification due to the large volume of responsive records and advised that it would provide an estimate after it received clarification from the requester. The City then provided its estimate 11 days later. The appellate court held that the City’s initial response was a procedural violation of the PRA. The City was not liable for penalties, but it was subject to an attorney fee claim as to that single violation.
Public records officers will use this case as a further check to be added to the already-long checklist to assure PRA compliance.
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.
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.
By Scott North from Herald Net
EVERETT — It looks as if an Olympia man could get a check for $45,000 from the city of Everett, along with copies of police surveillance videos of bikini baristas behaving badly.
The Everett City Council on Wednesday is scheduled to consider a settlement that city attorneys negotiated with prolific public records requester Arthur West.
The deal would bring an end to litigation over West’s 2014 demand for the barista videos. It also would memorialize his offer to not publish any of them on the Internet unless they contain images of public officials engaged in misconduct.
“I’m very encouraged that the city and I could come to a reasonable arrangement that would guarantee that the public interest would be served while not publishing all of the videos online,” West said. “It was never my intention to publish the videos of the baristas online.”
The record also is clear that West has for months quietly been seeking a cash payout in the case. He retained an attorney last summer who repeatedly demanded $150,000 or more to make the controversy go away.
Republished with permission from the International Municipal Lawyers Association (IMLA) with Washington Law commentary from Lee Marchisio, Foster Pepper
Gilleran v. Township of Bloomfield, No. a-15-15 (Sup. Ct. N.J. Nov. 22, 2016)
Denial of access to town’s video security tape footage permissible under [New Jersey’s] Open Public Records Act (“OPRA”) security exemption because footage contained critical information about operating system and vulnerabilities; however, court noted there may be a common law cause of action for releasing portions of footage.
Seeking to determine whether certain people had entered the Township’s municipal building, Plaintiff Patricia Gilleran requested five days’ worth of footage from one of Bloomfield’s stationary security cameras. A clerk for the Township asked that the request be narrowed to a shorter time period, noting that five days of security camera footage was quite voluminous. Accordingly, Gilleran reduced her request to one day of footage and was later informed that her request had been denied under OPRA’s exemption for security information.
A public employee’s right to privacy was analyzed in some detail by the Pennsylvania Supreme Court in a decision entered October 18, 2016. Pa. State Educ. Ass’n v. Commonwealth. See 41 IER Cases 1310 (Pa. 2016). The Court considered the history of that state’s Right to Know Law (RTKL) as well as federal and state constitutional protections. The court’s deep dig into the privacy issues extends back to 1890 and a regularly cited law review article, Samuel D. Warren and Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890). There, Warren and Brandeis stated that all citizens have the “right to immunity of the person,” the “right to be let alone,” and the “right to one’s personality.” Sometimes referred to as the “right of informational privacy,” the Pennsylvania Supreme Court applied such a right to the home addresses of public school employees. Although the Court struggled with the argument that the RTKL changed the analysis, a majority of the Court determined that the constitutional right to privacy must be considered in any balancing of claims for public records disclosure under the RTKL. As to employee’s home addresses, the Court found no basis to overcome the constitutionally protected privacy interest.
The Washington State Sunshine Committee makes recommendations to the Washington Legislature to repeal or amend exemptions to disclosure under the state’s Public Records Act, Chapter 42.56 RCW. Earlier this week, the Committee released its 2016 Annual Report. The report summarizes committee discussions regarding the exemptions reviewed in 2016 and attaches five recommended amendments (at Report Exhibits A-E) to the Public Records Act and related statutes.
Kevin Anderson, a noncustodial parent, sought child support records from the Department of Social and Health Services, Division of Child Support (DCS). Dissatisfied with DCS’s response partially denying his request, he sued under the Washington Public Records Act, chapter 42.56 RCW (PRA). On November 15, 2016, a Washington Court of Appeals rejected Anderson’s claims.
Child support records may be subject to public disclosure, but foremost the records are “private and confidential.” RCW 26.23.120(1). Records may only be disclosed “under appropriate circumstances” as authorized in the statute. RCW 26.23.120(2). Here, DCS provided records and information about Anderson’s own child support case, but redacted information about the mother and child. The Court held that DCS’s disclosures to Anderson, with redactions, were appropriate. The law limiting disclosure of child support records was an “other statute” under the PRA and therefore a proper basis for the redactions. The Court also referred to the Legislature’s direction that juvenile justice records “shall be confidential and shall be released only” under specific statutory authority. See RCW 13.50.100(2).
The Court further held that emails between the DCS support enforcement officer and the prosecuting attorney’s office were protected as attorney-client communications, and were properly withheld from disclosure. The case is Anderson v. Department of Social and Health Services.