Over the course of representing her client, attorney Erica Krikorian sent two Public Records Act (“PRA”) requests to Monroe School District, the defendant in her client’s lawsuit alleging civil rights violations. Krikorian then negotiated a settlement with the district on the civil rights claim in which her client released any potential PRA claims. Krikorian, asserting that the PRA claims were hers, subsequently filed suit against the district for violations of the PRA. In Creer Legal v. Monroe School District, No. 76814-0-I (August 13, 2018), Division I of the Washington Court of Appeals affirmed dismissal of Krikorian’s lawsuit. The court held that Krikorian, as her client’s agent, did not own the PRA cause of action and could not assert the claim once it was released by her client in settlement.
The Washington Court of Appeals, Division One, concluded that emails of University of Washington professors relating to faculty union organizing were not “public records” under Washington’s Public Records Act, Chapter 42.56 RCW. Although the emails were sent to UW email addresses, the Court concluded that emails relating to faculty concerns and unionizing efforts were not created “within the scope of employment” and were therefore not “public records” under the Washington Supreme Court’s decision in Nissen v. Pierce County.
In Nissen, the court addressed text messages on an employee’s private cell phone, and determined that records on private cell phones were only “public records” if created within the scope of employment. The Court of Appeals’ new decision applies that test to records sent and received from a public employees’ official work email account, retained on a public agency’s server.
In the third appeal related to a 2003 public records request, the Washington Court of Appeals concluded that in setting a penalty for violations of the Public Records Act, Chapter 42.56 RCW (PRA), the trial court did not abuse its discretion in considering the small size of the City of Mesa and the burden the penalty imposed per capita on its taxpayers.
Courts have authority to enter penalties of up to 100 dollars per day for wrongful withholding of public records under the PRA. The Washington Supreme Court has adopted a sixteen-factor test to determine the size of the penalty. One of these factors is deterrence considering the size of the agency and the facts of the case.
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.
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.
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.
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.
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.
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.