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.


Continue Reading

In Eggleston v. Asotin County, No. 34340-5-III, 2017 WL 6388976 (December 14, 2017), Division Three upheld the trial court’s decisions, holding that (1) an email between a contractor and subcontractor is not a “public record,” and therefore not subject to disclosure, and (2) preliminary drafts of a bridge project, which were not evaluative and contained no substantive comments, did not fall within the deliberative process exemption from disclosure, and thus should have been provided to requestor Eggleston. The court affirmed an award of $49,385.00 in penalties and $50,133.67 in attorney fees, staff fees and costs.

Asotin County engaged TD&H, an engineering firm, to replace a bridge. TD&H, in turn, was concerned about possible archaeological sites near the bridge, and consulted a geologist, Kevin Cannell, ultimately engaging him to perform a preliminary archaeological and cultural review of the proposed roadway for the bridge project. Before TD&H engaged him, Mr. Cannell had sent TD&H an email, offering his services. It is that email, from January 2002, that Eggleston sought.


Continue Reading

The Washington State Court of Appeals recently held that the First and Fourth Amendments of the United States Constitution and Article I, Section 7 of the Washington State Constitution, do not afford an individual privacy interest in public records contained in an elected official’s private email account.

Arthur West submitted a public records request to the City of Puyallup for communications received or posted through City Council Member Steve Vermillion’s private website and email account that related to matters of City governance. Vermillion had used the account during his election campaign and occasionally received emails from constituents and the City, which he forwarded to his City account when an official response was warranted. In response to the request, Vermillion and the City declined to provide records located in Vermillion’s private email account. West sued to compel disclosure under the Public Records Act. West v. Vermillion, No. 48601-6-II (Wash Ct. App., Nov. 8, 2016. The Superior Court ruled in favor of West and ordered Vermillion, under penalty of perjury, to produce records within the scope of the request.


Continue Reading

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.


Continue Reading

Under Washington’s Public Record Act, an action challenging an agency’s refusal of records must be filed within one year of the agency’s claim of exemption. RCW 42.56.550(6). The Supreme Court holds that an insufficient exemption log will not trigger the running of the statute of limitations.

Rental Housing Association of Puget Sound v. City of Des Moines, 165 Wn.2d 525 (2009  A “log need not be elaborate but should allow a requestor to make a threshold determination of whether the agency has properly invoked the exemption.”  WAC 44-14-04004(4)(b)(ii).  ). See also December 15, 2014 posting entitled “Washington Supreme Court Orders Attorney Fees And Costs To Requester For Agency’s Violation Of PRA’s ‘Brief Explanation’ Requirement.”


Continue Reading

In Gronquist v. Washington State Department of Licensing, the Washington Court of Appeals, Division II, held that the Department of Licensing improperly redacted several items from a business license application prior to disclosure. Citing RCW 42.56.070(1), Licensing argued that the home address, home telephone number, business telephone number, income information, employee information, banking information, and marital status information from a business license application were all exempt from disclosure under three “other statutes” incorporated into the PRA, among other exemptions.

The Court of Appeals disagreed. First, the redacted information was not protected tax information under Department of Revenue statutes. RCW 82.32.330 (return or tax information) did not apply to the redacted information because the statue, in fact, authorizes Revenue to disclose “tax information that is maintained by another Washington state or local governmental agency….” Because Licensing (another agency) held the application, the information was not protected tax information under the Revenue statute. Although the PRA itself also exempts personal tax information collected in connection with an assessment or tax, this exemption did not apply because business license applications do not provide financial information for tax purposes.


Continue Reading

Responding to complaints about Dr. Cornu-Labat, Quincy Valley Hospital conducted two ad hoc investigations concerning separate allegations of intoxication and incompetency to practice medicine.  The ad hoc investigations failed to uncover enough evidence to substantiate either claim.  However, hospital administrators “remained concerned” for the Doctor, placed him on paid administrative leave, and referred him to the Washington Physicians Health Program.  After Dr. Cornu-Labat refused to visit WPHP, which precluded WPHP from issuing a recommendation on his fitness to practice medicine, the Hospital fired him.

Dr. Cornu-Labat filed separate Public Records Act requests for documents relating to both investigations.  The Hospital denied the first request, claiming the Hospital was not an agency subject to the PRA and that the records relating to the intoxication investigation were “investigative” and exempt under RCW 42.56.240.  His second, third, and fourth requests sought documents from both investigations, and the Hospital eventually denied those requests under PRA exemptions specific to the healthcare industry.


Continue Reading

White House launches www.ethics.gov as one-stop shopping for open government information. [Wall Street Journal]

New York follows suit with Mayor Bloomberg signing a data transparency law that will allow the City to “continue leading the country in innovation and transparency…” with a unified open-data repository that opens for business in just six