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.”


Continue Reading

In Predisik v. Spokane School District No. 81, the Washington Supreme Court holds by a 5 justice majority that disclosure of employer investigation records that reveal an employee’s identity do not implicate employee privacy rights under the Public Records Act (PRA) when the records do not describe the allegations being investigated.  The court therefore reversed the Court of Appeals below, ordered disclosure of the records without redaction, and denied the employees’ requests for injunctive relief under the PRA.

Two media outlets submitted public records requests to Spokane Public Schools for documents concerning employees on administrative leave.  In response, the District produced three records: an “administrative leave letter” placing an employee on leave and banning the employee from district property and from talking with students about the matter; and two spreadsheets that documented the amount of leave pay accumulated by the employee named in the leave letter and a second employee also on leave.  None of the documents detailed the allegations’ contents.


Continue Reading

The Public Records Act (PRA) requires that when an agency withholds or redacts records, its response “shall include a statement of the specific exemption authorizing the withholding of the record (or part) and a brief explanation of how the exemption applies to the record withheld.”  RCW 42.56.210(3).  In a 5-4 decision, the Washington Supreme Court held in City of Lakewood v. Koenig that an agency’s violation of this requirement entitles the requester to attorney fees and costs, regardless of whether the records were properly withheld.

In this case, David Koenig had requested records from the City of Lakewood relating to certain police officer incidents.  In its response, the city redacted, among other things, driver’s license numbers from the records, citing to various statutory provisions without additional explanation.  In a majority opinion written by Justice Steven González, the court found that the city’s response violated the PRA because the city either failed to cite a specific exemption or failed to explain how the particular statute applied to the redacted driver’s license numbers in the specific records produced.  As a result, “the burden was shifted to the requester to sift through the statutes cited by the city and parse out possible exemption claims.”  Opinion at 7-8.  Because the PRA provides that costs and reasonable attorney fees shall be awarded to a requester for vindicating “the right to receive a response,” the court held that Koenig was entitled to his attorney fees and costs, including those on appeal.  Id. at 10-12.


Continue Reading

In Robbins, Geller, Rudman & Dowd, LLP v. State, Division II of the Court of Appeals decided that private parties may assert the Public Records Act exemption in RCW 42.56.270(1) for certain financial, commercial, and proprietary information obtained by public agencies. Private parties may also assert that disclosure would produce a public loss, regardless of the agency’s position on the issue. However, the court declined to address the open question in Washington of the proper standard for an injunction based on an “other statute” exemption under RCW 42.56.070(1).

The law firm of Robbins, Geller, Rudman & Dowd sought to enjoin release of information that the firm submitted to the Washington Attorney General’s Office (“AGO”) as part of its response to a request for qualifications. Although the Court of Appeals held that the law firm could assert the proprietary information exemption under RCW 42.56.270(1), it reversed the trial court’s decision to issue a permanent injunction, finding that the law firm failed to prove that the exemption, or any other exemption, prevented disclosure of the information at issue in response to a public records request.


Continue Reading

In Gronquist v. State of Washington, Department of Corrections, Division II of the Court of Appeals held that RCW 42.56.565(1) prohibits an award of PRA penalties to a prison inmate serving a criminal sentence absent a showing of bad faith by the agency who denied the request.

Prison inmate Gronquist had requested several records from the Department of Corrections, including certain surveillance videos of the prison where he was incarcerated.  DOC withheld the surveillance videos as exempt investigative records essential to effective law enforcement under RCW 42.56.240.  DOC also inadvertently failed to disclose one page in a 96-page production of documents, which it later provided to Gronquist upon discovery of the error.  The trial court awarded penalties of $15 per day ($260 total) to Gronquist, but found no bad faith on DOC’s part.  Gronquist appealed on several grounds.


Continue Reading

On The Willis Report (FOX NEWS, July 29, 2010), a regular FOX Business News broadcast, host Gerri Willis reviewed some of the issues surrounding efforts to gather information about the salary of public officials in Bell, California. Gerri interviewed Steve DiJulio, a Foster Pepper lawyer and regular contributor to this blog. Steve discussed that many

The Washington Attorney General has called for legislation to create an administrative board to manage disputes over Public Record Act claims. The legislation is not likely to be considered until 2011. In an op-ed piece in Crosscut, AG Rob McKenna noted during "Sunshine Week" that this would save substantial costs when compared with the

As you may know, Ramsey Ramerman, an attorney in Foster Pepper’s Public Records/Open Government practice, recently left the firm to take an in-house legal position with the City of Everett. We wish him all the best and look forward to our continued relationship with the City related to its legal needs.
 
We wanted to