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.


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On August 27, 2015, the Washington Supreme Court affirmed lower courts in holding “that text messages sent and received by a public employee in the employee’s official capacity are public records of the employer, even if the employee uses a private cell phone.” Nissen v. Pierce County

The case arose when a sheriff’s detective sent requests to Pierce County for records related to the County Prosecutor. One request was for cellular telephone records for the Prosecutor’s personal phone. There was no dispute that the Prosecutor personally bought the phone, pays for its monthly service, and sometimes uses it in the course of his job.

The Court’s unanimous decision required the Prosecutor to obtain a transcript of the content of all the text messages at issue, review them, and produce any that are public records to the County. “The County must then review those messages just as it would any other public record-and apply any applicable exemptions, redact information if necessary, and produce the records and any exemption log.”


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In Bichindaritz v. University of Washington, Division One of the Court of Appeals reversed a $723,290.50 penalty and $102,958.03 attorney fee award for violations of the Public Records Act by the University of Washington.  The trial court had concluded that the University’s production of documents to the requestor, a former employee who had sued the University, was not in good faith and that the University waited too long to produce records it had already assembled but had not yet reviewed.  The University appealed.

In particular, the University challenged the trial court’s conclusion that as soon as the University had assembled the responsive documents, they were ready to be produced to the requestor.  The Court of Appeals agreed with the University, explaining that the Public Records Act requires that responses to records requests be made “promptly,” but also expressly recognizes that an agency may need additional time to determine whether any part of the information requested is exempt.  See RCW 42.56.520.  As the court summarized:


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The Montana Supreme Court recently ruled that public employees have a reasonable expectation of privacy in their identity with respect to internal disciplinary matters, provided that the employee is not in a position of public trust and the misconduct resulting in discipline is not a violation of a duty requiring a high level of public trust. In Billings Gazette v. City of Billings, 313 P.3d 129 (Mont. 2013), the city rejected the local newspaper’s request for the identification of certain city employees who had been disciplined for accessing pornographic materials on city computers during work hours. The city provided the Gazette with materials that were responsive to its request, such as internal investigation documents and information regarding the specific discipline imposed, but it redacted the employees’ identifying information.

The Gazette sued to compel disclosure and argued that “unauthorized computer usage by disciplined [c]ity employees was subject to release under the ‘right to know’ provision of [the Montana Constitution] . . . and that any privacy interest the disciplined employees may have in the information being requested did not clearly exceed the public’s right to know.” After in camera inspection, the district court agreed and ordered the city to disclose the investigative materials, with redactions only for uninvolved third parties.


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Belfair Water District is a small water district with approximately 1,200 customers located near Bremerton. The District is the latest public agency to face civil penalties for violations of the Washington Public Records Act. Judge rules against Belfair Water District in public records dispute, Steven Gardner, Kitsap Sun, August 6, 2011. The litigated requests began in 2009 when Greg Waggett asked for copies of the District’s insurance policy and current budget.  Around the same time, Bonnie Pope, another requestor, requested copies of District commissioners’ expense reimbursement records. These were apparently the first public record requests handled by District staff.

Following these initial requests, Waggett began submitting increasingly burdensome requests to the District. According to the District, responding to these requests began to take up significant portions of district staff time and, ultimately, became so burdensome that two district employees quit their District jobs.


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The U.S. Supreme Court will soon decide whether the Freedom of Information Act (“FOIA”), 5 U.S.C. § 551-559, protects a corporation’s interest in “personal privacy.” In September of 2009, the Third Circuit ruled in favor of AT&T and against the Federal Communications Commission (“FCC”) in finding that FOIA’s law enforcement exemption protects a corporation’s interest in “personal privacy.” AT&T Inc. v. Federal Communications Commission, 582 F.3d 490 (2009). The FCC has appealed the ruling to the U.S. Supreme Court, which heard arguments in the case on January 19, 2011. See Court Weighs Whether Corporations Have Personal Privacy Rights, New York Times, January 19, 2011.

FOIA exempts from mandatory disclosure records collected for law enforcement purposes to the extent disclosure “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C). FOIA does not define personal, but does define person as “an individual, partnership, corporation, association, or public or private organization other than an agency.” 5 U.S.C. § 551(2).


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In a recent unpublished decision, a Washington State Court of Appeals addressed a Public Records Act request from the Neighborhood Alliance of Spokane County for records of the County’s Building and Planning Department. Neighborhood Alliance of Spokane County v. County of Spokane, No. 27184-6 (C.A. Wa., Div. III, August 11, 2009).

While an unpublished decision, the Court’s analysis does provide some guidance for a government’s review of electronic records in response to a public record request. First, the Court looked to federal court decisions under the Freedom of Information Act (FOIA) to guide the the standard for judicial review of the government agency’s response to a request.

“The adequacy of the agency’s search is judged by a standard of reasonableness, construing the facts in the light most favorable to the requestor.”


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On Tuesday, June 9, the Chair of Foster Pepper’s Public Disclosure Team and editor of this blog, Ramsey Ramerman, will be arguing two cases on behalf of the City of Federal Way in the Washington State Supreme Court.  Here are the issue statements from the Supreme Court’s website:

City of Federal Way v. Koenig:

Open Government—Public Disclosure—“Local Agency”—What Constitutes—Municipal Court

Whether the Federal Way Municipal Court is a “local agency” subject to the disclosure requirements of the Public Records Act, chapter 42.56 RCW.


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