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.
By John Gillie from The News Tribune
A three-year fight over public access to government-related emails stored in a former Puyallup city councilman’s private email account might be appealed to the U.S. Supreme Court.
Puyallup City Manager Kevin Yamamoto told the Puyallup City Council late Tuesday that the case, which the city has lost in two separate forums, involves a major constitutional question and should be resolved by the nation’s highest court.
Arthur West, an Olympia open-government advocate and plaintiff in the case, told the council that he too wants to see the city appeal the state courts’ decision.
“I think you guys should go to the Supreme Court, not because you have any chance — you have like a 2 percent chance of getting review accepted. The longer you delay this and the more unreasonably you fight, the worse it’s going to be for you,” he said.
Abandoned Claims. In West v. Gregoire, Division II of the Court of Appeals held that a PRA requestor who moves for a show cause order under RCW 42.56.550(1) abandons any claims he or she does not either (1) address in briefing, (2) mention in oral argument, or (3) otherwise specifically preserve for judicial review. Arthur West submitted a public records request to Governor Gregoire’s office. After providing West an initial five‑day letter, the Governor’s office did not further communicate for several months. And when it did, it asserted executive privilege (which was later upheld in Freedom Foundation v. Gregoire). West sued, claiming that executive privilege should not be recognized in Washington.
Some months later, West brought a show cause motion, but failed to mention in the motion or at oral argument his other PRA claims (notably, his claim that the Governor’s initial delay in production was unreasonable). Citing the detailed show cause procedures under RCW 42.56.550(1) and the public policies in favor of judicial economy and against piecemeal litigation, the court held that a .550(1) show cause hearing can function as a PRA claimant’s trial. Any PRA issue not mentioned or otherwise expressly preserved in a .550(1) show cause motion is abandoned, just like any civil claimant’s allegation not mentioned in the pleadings, not raised in response to a summary judgment motion, or unsupported at trial, is deemed abandoned.
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.