Over the course of representing her client, attorney Erica Krikorian sent two Public Records Act (“PRA”) requests to Monroe School District, the defendant in her client’s lawsuit alleging civil rights violations. Krikorian then negotiated a settlement with the district on the civil rights claim in which her client released any potential PRA claims. Krikorian, asserting that the PRA claims were hers, subsequently filed suit against the district for violations of the PRA. In Creer Legal v. Monroe School District, No. 76814-0-I (August 13, 2018), Division I of the Washington Court of Appeals affirmed dismissal of Krikorian’s lawsuit. The court held that Krikorian, as her client’s agent, did not own the PRA cause of action and could not assert the claim once it was released by her client in settlement.
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.
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:
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.
Everett Fighting Inmate’s Request For Bikini Barista Videos
By The Associated Press from Tri-City Herald [Washington]
The city of Everett is suing to block a prison inmate’s request for copies of surveillance videos of bikini baristas.
The Daily Herald reports the city filed a lawsuit in Snohomish County Superior Court last week seeking to prevent Jamie Wallin from obtaining videos under the state’s public records act.
In court filings, Everett attorneys say the court shouldn’t “feed this repeat sex offender’s perversions” by giving him videos featuring young women stripping and engaging in sexual conduct.
In a recent opinion, the Washington Attorney General concluded that governing bodies of public agencies may conduct their meetings exclusively by telephone conference call, so long as the call is open to the public under Washington’s Open Public Meetings Act, ch. 42.30 RCW (OPMA). AGO 2017 No. 4.
To comply with the OPMA, the Opinion suggests: “one or more specific locations can be designated as the meeting place; notification of the meeting place(s) and time can be provided in the manner outlined in RCW 42.30.075; the agenda can be posted online if required by RCW 42.30.077; and a speaker phone can be provided at the designated meeting place(s) to enable those attending to hear the public discussions and to provide testimony.” While other states (such as California and New York) specify standards for “remote” communication meetings, Washington does not. But according to the Attorney General, the absence of express standards is not controlling.
The AGO concludes by noting “a member of the public could conceivably bring legal action” under the OPMA, but that a successful challenge would be “unlikely.” AGO 2017 No. 4 cited to an earlier opinion (AGO 2014 No. 7), as well as judicial decisions from Maryland and Michigan in support of its position.
The laws about public records differ from one government to the next and are further complicated by some technologies, like police body cameras.
By Liz Farmer from Governing.com
In 2015, the editor of a newspaper in Florida filed a public records request with the Broward County Sheriff’s Office asking for the email of every employee during a five-month period to be searched for specific gay slurs.
In response, the South Florida Gay News received a $339,000 bill.
The office said fulfilling the request would take four years and require hiring a dedicated staffer. The exorbitant charge set off a year-long legal battle that attracted the Associated Press and its lofty resources. To show how arbitrary the number was, the AP and South Florida Gay News filed a similar request to the sheriff’s office in other Florida counties. They were quoted fees ranging from as little as $37 to more than $44,000.
The City of Seattle owns, and for many years operated, the Woodland Park Zoo. Acting under statutory authorization, the City contracted with the Woodland Park Zoo Society, a privately formed not-for-profit corporation to manage and operate the Zoo. Following the lead of earlier decisions of the Washington Court of Appeals and those of other states’ courts, the Washington Supreme Court confirmed the application of a four-part balancing test to determine whether an entity is the “functional equivalent” of an agency and therefore subject to the state’s Sunshine Laws. Fortgang v. Woodland Park Zoo, No. 92846-1 (Jan. 12, 2017). The four factors (known in Washington as the “Telford test”) are:
- whether the entity performs a government function;
- the extent to which the government funds the entity’s activities;
- the extent of government involvement in the entity’s activities; and
- whether the entity was created by the government.
The Zoo Society operates the Woodland Park Zoo under an operations and management contract with the City of Seattle. The case arose from the Zoo Society’s refusal to provide documents to a requester seeking information about the Zoo’s former elephant exhibit. The Zoo Society denied that it was an agency subject to the state’s Public Records Act (PRA), and the requester brought suit. Of the four Telford factors, the Court found only the second to be inconclusive. Under the Telford analysis, the Court held that the Zoo Society is not the functional equivalent of a government agency.
A Washington court of appeals ruled that the City of Lynnwood violated the Washington Public Records Act (“PRA”) when it failed to provide “any reasonable estimate when records would be provided” in its initial response to a broad records request. Hikel v. City of Lynnwood, No. 74536-1-I (Dec. 27, 2016).
The appellate court affirmed the trial court’s rejection of other PRA claims by a former City Councilmember, represented in the case by the City’s former mayor. The trial court had earlier rejected all of the claims.
But the appellate court found that, despite the City’s efforts to comply with the PRA, the initial response to the request did not satisfy RCW 42.56.520. That provision requires a response within five business days of receipt of the request. If the agency needs additional time, it must acknowledge the request and include “a reasonable estimate of the time the agency…will require to respond.” RCW 42.56.520(3). A reasonable estimate of the time needed to provide a first installment of records has been found compliant. Opinion at p. 10 (citing Hobbs v. Wash. State Auditor’s Office, 183 Wn. App. 925, 943, 335 P.3d 1004 (2014)).
The City’s initial response had asked for clarification due to the large volume of responsive records and advised that it would provide an estimate after it received clarification from the requester. The City then provided its estimate 11 days later. The appellate court held that the City’s initial response was a procedural violation of the PRA. The City was not liable for penalties, but it was subject to an attorney fee claim as to that single violation.
Public records officers will use this case as a further check to be added to the already-long checklist to assure PRA compliance.