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.
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.
The Washington Court of Appeals declined to decide what it called an “interesting and important issue” regarding an agency’s obligation under the Washington Public Records Act, Chapter 42.56 RCW (PRA), to obtain records from a third party in response to a public records request. Because the record and briefing on appeal left “unanswered factual questions,” the court vacated the trial court’s order granting summary judgment in favor of the Washington Department of Corrections (DOC).
In Baker v. Department of Corrections, No. 34967-5-III (Wash. App. June 29, 2017), a DOC inmate requested copies of negotiable financial instruments deposited by DOC into his inmate trust subaccount. With the assistance of Bank of America (BOA), DOC manages this internal trust accounting system to assist with inmate finances, such as an inmate’s court-imposed financial obligations. DOC scans the front and back of negotiable instruments (e.g., checks or money orders) with BOA’s proprietary software and transmits the digital images to BOA. The digital images are not stored on DOC’s system. DOC then destroys the paper copies of the negotiable instruments after a certain period of time.
Are Your Policies and Practices Up-To-Date?
On July 23, 2017, recent legislation on public records will take effect, impacting local governments across the state. Engrossed Substitute House Bill 1594 and Engrossed House Bill 1595 make a number of changes to the Public Records Act, Chapter 42.56 RCW (“PRA”), and Washington’s laws regarding preservation and destruction of public records, Chapter 40.14 RCW. In many cases, preparing for these changes will require revisions to agency policies on public records and updates to agency practices in processing requests. Below are some highlights of the new legislation.
Charging for Electronic Records
Agencies will now be authorized to charge for the cost of producing electronic records, including the costs of delivery, the physical media device provided to the requester, and the costs of electronic file transfer or cloud-based data storage. Default fees are $0.10 per page for scanning records; $0.05 for every four files delivered to the requester electronically; and $0.10 per gigabyte for electronically transmitted records. Alternatively, an agency may charge a flat fee of up to $2.00 for the entire request as long as the agency reasonably estimates the cost will equal or exceed that amount.
In its second decision related to the Port of Vancouver’s lease of property for a new rail terminal facility to export petroleum products, 1 the Washington Supreme Court held that the Port appears to have violated the state’s Open Public Meetings Act, ch. 42.30 RCW (OPMA), in its discussion of the lease during five executive sessions held in 2013.
The case centers on RCW 42.30.110(1)(c), which permits public agencies to meet in executive session to “consider the minimum price at which real estate will be offered for sale or lease when public knowledge regarding such consideration would cause a likelihood of decreased price.” After considering the plain language of the statute, its legislative history, and the practical impacts of a narrow interpretation, the Court unanimously adopted a narrow reading of the statute:
By Jake Thomas from The Columbian
A Superior Court judge ruled Friday that Clark County violated the state’s public records act and must pay $15,750 in penalties for mishandling a dispute with former Councilor David Madore over the release of messages from his private cellphone.
The ruling from Judge Daniel Stahnke stems from a lawsuit filed last year by Community Planning Director Oliver Orjiako that alleged that the county didn’t adequately respond to his public records request for texts from Madore’s cellphone related to county business.
The lawsuit, which was related to harassment and whistleblower complaints Orjiako filed against Madore, cited Nissen v. Pierce County, a 2015 state Supreme Court decision that determined that communications generated on elected officials’ personal devices are public records if they pertain to public business.
EHB 1595 addresses the costs associated with responding to requests made under the Washington Public Records Act, Chapter 42.56 RCW (“PRA”).
First, the bill permits agencies to charge for the cost of producing electronic documents, including costs of transmitting electronic records, the physical media device provided to the requester, and the costs of electronic file transfer or cloud-based data storage. Agencies may calculate their own actual costs, or charge default amounts set by the bill if making those calculations would be unduly burdensome. The bill’s default amounts are ten cents per page for scanning records; five cents for every four files delivered to the requester electronically; ten cents per gigabyte for electronically transmitted records; or a flat fee of up to two dollars as long as the agency reasonably estimates the cost will equal or exceed that amount.