Division Three of the Washington Court of Appeals concluded that Benton County did not violate the Public Records Act, Chapter 42.56 RCW (PRA), by temporarily withholding records pending notice to a third party named in those records.

Donna Zink made a PRA request for records, which included records regarding sex offenders. The County sent third-party notices to the individuals named in those records, notifying them of the records request. The County’s notices stated that while RCW 42.56.540 permitted the notification, the County did not believe the records were exempt.

In response to the notices, one of the individuals named in the records, John Doe, filed a lawsuit against the County and the requester, seeking to enjoin production of any record identifying him. In an answer to the complaint, the requester asserted a cross claim against the County for violations of the PRA. The cross claim contended the County was withholding records without an applicable exemption, that the County was not required to give John Doe notice, and that the County provided that notice in order to delay or deny release of the records.


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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:


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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.


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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

In Adams v. Washington State Department of Corrections, Division II of the Court of Appeals held that for purposes of penalty calculation for agencies that do not comply with PRA requests under RCW 42.56.565(1), an agency will be punished for “bad faith” if it fails to engage “in any serious independent analysis of the exempt status of documents.” The Court of Appeals affirmed the findings of the trial court that found that the DOC’s justification for withholding a prisoner’s state and federal rap sheets was insufficient, and that the DOC engaged in “bad faith” under the PRA by failing to.

In this case, Adams, a prisoner, submitted a public records request to the DOC for his inmate central file—a collection of documents that contained, among other items, an offender’s criminal history obtained from both state and federal authorities, otherwise known as “rap sheets.” The DOC refused to produce portions of the rap sheets requested, some of which were obtained from ACCESS, a federal database, arguing that the records were exempt from disclosure under RCW 4.56.070(1) and federal laws. The DOC also argued that non-conviction criminal history information was for law enforcement use only, and therefore exempted from disclosure.


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In 2005, the Washington Legislature amended the Public Records Act to shorten the statute of limitations from five years to one year.  See Laws of 2005, ch. 483, § 5; former RCW 42.17.410.  Actions for judicial review under RCW 42.56.550 now “must be filed within one year of the agency’s claim of exemption or the last production of a record on a partial or installment basis.”  RCW 42.56.550(6).  Since this amendment, however, appellate courts have given the statute inconsistent treatment in cases involving single productions where no exemptions were claimed by the agency.  This issue most recently arose in last week’s decision from Washington’s Court of Appeals (Division I) in Mahmoud v. Snohomish County, No. 70757-4-I (unpublished).  There, the court held that the one-year statute of limitations barred all of the requestor’s claims.

Division I previously addressed this statute in Tobin v. Worden, 156 Wn. App. 507 (2010).  In that case, the court held that the one-year limitations period is triggered only by a claim of exemption or the agency’s “last partial production” – meaning the production of a record that is “part of a larger set of requested records.”  Id. at 514 (quoting RCW 42.56.080).  Because the production in Tobin involved no exemption and the production of a single document, the court held that the one-year statute of limitations did not apply.


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The Washington Court of Appeals issued three notable Public Records Act decisions in the past few days.  In Andrews v. Washington State Patrol, Division III held that an agency that fails to comply with self‑imposed disclosure deadlines does not violate the PRA if the agency acts diligently to produce the requested records.  The specific records request was complex, seeking audio recordings of third‑party telephone conversations protected by attorney‑client privilege.  In order to preserve confidentiality, the State Patrol developed a method to identify responsive records from over six months of recordings without actually listening to the recorded conversations.  In the process, the State Patrol missed self‑imposed disclosure deadline estimates without notifying the requestor that it needed additional time to compile the records.  Facing 1,000 additional public records requests at the time, the Patrol ultimately disclosed the records in less than 90 days.  The Court held that the PRA’s requirement that agencies provide a “reasonable” estimated response date is not a requirement for an “exact” estimate and that the Patrol’s failure to meet its self‑imposed deadlines or to notify the requestor that additional time was needed did not violate the PRA’s “fullest assistance” provision.

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In an unpublished opinion, Center for Justice v. Arlington School District, No. 627263-1-I (Sep. 4, 2012), a Washington Court of Appeals affirmed a trial court’s conclusion that a school district’s “special meetings” were not “regular meetings” because they did not occur in accordance with a schedule declared by statute or rule. The school district

In an unpublished opinion, the Washington Court of Appeals affirmed the dismissal of a public records suit due to the requester’s failure to properly serve the Pierce County Auditor. The requester, Larry Day, requested records from the Pierce County Prosecuting Attorney’s office relating to its prosecution of Day. The Prosecuting Attorney’s Office withheld a

A recent case decided by Division II of the Washington State Court of Appeals confirms that agencies must receive fair notice of a request for public records. In other words, a request must have sufficient clarity to be recognizable as a request for information under the Public Records Act. The Court also determined that a union representative had adequate standing to file a public records lawsuit on behalf of a union member.

In Germeau v. Mason County, Case No. 41293-4-II, 2012 WL 621468 (Feb. 28, 2012), Richard Germeau, a representative of the Sherriff’s Office Employees Guild (“Guild”), commenced representation of Guild member Detective Sergeant Martin Borcherding, who had been involved in an off-duty domestic dispute.

Germeau was an experienced public records requestor, having made several past requests using the official Mason County Public Records Request Form. Despite his familiarity with the form, Germeau instead drafted a letter to the Sherriff’s Office seeking information and documents pertaining to any pending investigation of Borcherding. The letter did not specify that it was a public records request, and instead emphasized that Germeau, on behalf of the Guild, would be representing Borcherding during the internal investigative and discipline processes.


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