The Colorado Supreme Court recently held that the Denver Post could not obtain records from the personal cell phone of former Colorado Governor Bill Ritter.  Denver Post Corp. v. Ritter, —P.3d —, 2011 WL 2449325 (Colo. 2011).  The Court found that the newspaper did not clearly state a claim that the cell phone bills were public records under the Colorado Open Records Act (“CORA”).

Governor Ritter had a practice of using two cell phones. The first phone was a state-paid Blackberry, which Ritter used almost exclusively for email. The Governor paid for the second phone, which he used for both personal calls and calls he made in his role as Governor.

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Once again the Washington Supreme Court will be called upon to evaluate the reach of the Public Records Act (“PRA”) in the digital age. On Thursday, January 27, 2011, the Court entertained oral argument in Neighborhood Alliance of Spokane County v. County of Spokane, No. 84108-0, a case involving Spokane County’s failure to produce missing electronic records ostensibly stored (then erased) off the hard drive of an old, retired County computer.

In 2005, Alliance, a nonprofit government accountability group, made several public records requests seeking documents they believed would expose alleged nepotism in County hiring processes. In response to Alliance’s request, County officials checked the hard drives of the computers its employees were currently using, but did not search computers that were no longer in use (no matter how recently the computers had been retired). The hard drive of a particular computer that may have held the requested information was wiped clean and thereafter, despite Alliance’s outstanding records request, the retired computer was not searched. The parties disagreed as to whether the record did exist on the hard drive, whether the County conducted a proper search, whether the County violated the PRA, and if so, the appropriate level of penalties. The Court of Appeals held that the County did violate the PRA by failing to conduct a “reasonably adequate” search for the complete electronic information requested, and remanded the case to the trial court to determine the resulting penalties, costs and fees.

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The Washington State Court of Appeals recently upheld the denial of a public employee’s repeated requests for an agency’s investigative records following the employee’s termination. The Court also found that the trial court did not abuse its discretion by imposing sanctions (under superior court Civil Rule (“CR”) 11) on the employee for frivolous records requests.  Phillips v. Valley Communications, Inc. (unpublished decision issued December 27, 2010).

The employee, Phillips, who worked at a 911 call distribution center, had complained about his supervisor, triggering agency investigations. Phillips was terminated, after a psychiatric evaluation concluded he was not fit for duty.

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The Alabama Supreme Court recently ruled that a public corporation (“Health Care Authority”) that owned several hospitals was a “local government entity” and therefore subject to the state’s Open Records Act.  Tennessee Valley Printing Company, Inc. v. Health Care Authority of Lauderdale County and the City of Florence, — So.3d —-, 2010 WL 4272678 (Ala.). Despite the Health Care Authority’s protestations, the Court found that the corporation’s assets had been accumulated through use of statutorily-authorized governmental powers, including eminent domain and issuance of tax-free bonds, and that the corporation could not sell substantially all of its assets without prior approval of an authorizing government subdivision.

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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

A Pennsylvania appeals court recently overturned a trial court ruling that allowed the Pennsylvania Emergency Management Agency (PEMA) to withhold the complete list of the recipients of goods and services PEMA purchased with Homeland Security funds in response to a disclosure request from a Pittsburgh newspaper reporter. Bowling v. Office of Open Records, 2010

Update May 31, 2009

U.S. Attorney General Eric Holder’s Memorandum For Heads of Executive Departments and Agencies provides a nice summary of what the presumption of openness means.  The Attorney General identifies three ingredients:

1. Only assert an exemption if nondisclosure serves the exemption’s public purpose.

2. When possible, redact exempt information rather than withhold an entire document.

3. Never assert an exemption merely to hide mistakes or because of abstract concerns.

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Update (April 22, 2009) — Happy Earth Day

In this editorial, Seattle City Attorney Tom Carr responds to an earlier editorial about his role in the “closed door” meeting controversy.  The two editorials serve to highlight an often overlooked point — the public’s perception of a government’s compliance with open government laws can be more important than the government’s strict compliance with those laws.  One of the primary purposes of open government laws like the Open Public Meetings Act and the Public Records Act is to build public trust.  If the public thinks the government is trying to keep something secret that should be public, it builds distrust.

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