Local Open Government Blog

Supreme Court to Consider Disclosure of Copies of Documents Placed Under Seal by a Court

Sven Peterson — Fri, 12 Mar 2010 16:27:26 -0800

The Seattle Times reported on the Supreme Court arguments in a dispute between the Yakima Herald-Republic and Yakima County regarding the disclosure of copies of court documents. The dispute involves the billing records of defense attorneys in a murder case that were placed under seal by a judge. The judiciary is exempt from the disclosure requirements of the Public Records Act, but in this case the County also has copies of the records, and the newspaper sought disclosure of the records from the County. At issue is whether copies of documents also located in a sealed court file are subject to disclosure under the Public Records Act. The Seattle Times article is available here.

Bellevue City Council Members Allege Open Public Meetings Act Violations

Sven Peterson — Wed, 10 Mar 2010 09:28:22 -0800

Publicola is reporting that members of the Bellevue City Council are accusing the majority of violating the Open Public Meetings Act by negotiating the text of a letter to Sound Transit without holding an open public meeting. The council members allege that the letter regarding the future location of a light rail line through Bellevue was drafted via phone and email. The Open Public Meetings Act, Chapter 42.30 RCW, requires that all meetings of the governing body of a public agency shall be open and public. A meeting occurs when the majority of the governing body or any committee acting for the governing body transact any official business of the public agency, including but not limited to receipt of public testimony, deliberations, discussions, considerations, reviews, evaluations, and final actions. A court may determine that a meeting has occurred if a majority transact business via a "serial" or "rolling" meeting in which phone calls or email are forwarded among the group until a consensus is reached.

FCC Sees Broadband and Social Media as Building Blocks of More Open and Transparent Government

Mike Schechter — Thu, 04 Mar 2010 15:06:52 -0800

The FCC’s Government Operations Director Eugene Huang recently discussed how the forthcoming National Broadband Plan broadband access will help transform how citizens interact with the federal government. In his comments at M.I.T.’s Center for Future Civic Media, Huang discussed the need to make primary legal documents “free and publically available online.” Huang noted the need to stream government meetings, public hearings, and town hall meetings online as well as provide public government data to the internet in machine-readable formats.

Huang’s comments hint at a number of broad initiatives in broadband access, open government, and social media use that will be contained in the National Broadband Plan when it is released later this month. Development of the National Broadband Plan is an FCC project authorized in the 2009 American Recovery and Reinvestment Act. Huang’s speech can be found online at the FCC’s Broadband blog.

The National Broadband Act, due out March 17, will likely have some impact on local governments. Although many local jurisdictions are far ahead of the federal government. in providing data access and streaming meetings, as Washington, D.C., opens up, local governments are likely to face increasing pressure from citizens to provide similar services and information. Of course, as we have discussed before, new and improved access and communications, such as blogs and twitter feeds, will also have far-reaching impacts on public records management responsibilities for local governments.

We’ll provide more information and analysis as details of the National Broadband Plan become available during the next two weeks.

Public Records can only be Destroyed in Accordance with Appropriate Records Retention and Destruction Policies

Sven Peterson — Fri, 19 Feb 2010 14:53:47 -0800

The preservation and destruction of public records is governed by Chapter 40.14 RCW. Local Governments are responsible for adopting appropriate records retention policies and procedures. The local records committee establishes retention schedules for different types of local governments that specify retention periods applicable to different categorizes of public records. These schedules are available on the Washington State Archives website. Local governments should also consider other applicable retention schedules. For example, public hospital districts should consider the Medicare conditions of participation and the Joint Commission requirements, among others. Failure to adopt and implement appropriate records retention and destruction policies and procedures may result in financial penalties and even in possible criminal sanctions because the destruction or mutilation of a public record is a felony under certain circumstances. See Chapter 40.16 RCW. Individual officers and employees should make sure that they adhere to the retention schedule with respect to documents that they maintain, such as any email that constitutes a public record (whether or not the email is on a government, personal or business computer).

Pennsylvania Court Denies Blanket Exemption for Homeland Security Purchases

Will Patton — Tue, 16 Feb 2010 09:20:03 -0800

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 Westlaw 395637, February 5, 2010. The Court found that while disclosing the location of certain items, such as computer servers and biochemical testing equipment could be harmful to security, identifying the number and location of such items as bungee cords would not. The Court explicitly acknowledged the “enormity of the task” that individually identifying the non-sensitive items would create for PEMA, but nevertheless held that Pennsylvania’s new disclosure law required greater access to the Commonwealth’s public records.

Maryland State Police's Internal Affairs Files Relating to Illegal Racial Profiling Not Exempt Personnel Records

Steve DiJulio — Thu, 11 Feb 2010 11:44:52 -0800

In response to a suit filed by the NAACP, a Maryland Court of Appeals decided that the Maryland State Police (MSP) must produce certain internal affairs files. In 2003, the NAACP and MSP entered into a federal consent decree to address claims of racial profiling. In 2007, the NAACP sought documents to verify MSP compliance with the consent decree. MSP produced many documents, but resisted producing the internal affairs files that may contain complaints of racial profiling. MSP asserted those files were “personnel records of an individual” and exempt from disclosure. On February 2, 2010, the court rejected the MSP defense, as well as the claim that an “Officer’s Bill of Rights” precluded disclosure.

For more information, click here.

Illinois Court Distinguishes FOIA Precedent and Requires Disclosure of Police Survey under Illinois Law

Steve DiJulio — Mon, 08 Feb 2010 11:53:11 -0800

The Rockford (Illinois) Police Department commissioned a 2007 survey by Rockford College of uniform and non-uniform Department personnel, as well as residents in a particular area of the City. In addition to Departmental performance, the survey sought an assessment of employee job satisfaction.

The Rockford Police union sought disclosure of the survey results. The City resisted, asserting that the survey results were protected from disclosure under any of three exemptions: audits; personnel matters; or, the “self-critical analysis” privilege. On January 22, 2010, an Illinois Appellate Court rejected the City’s defenses and affirmed an earlier court order requiring disclosure of the survey. The Illinois Freedom of Information Act does not include an exemption for “self-critical analysis,” and the Illinois court would not graft federal precedent onto the state law exemptions.

For more information, click here.

New Jersey Appellate Court Holds Judicial Privilege May Not Be Absolute Outside Traditional Litigation Setting; Expunged Criminal Record

Milt Rowland — Thu, 04 Feb 2010 10:13:45 -0800

In Nunez v. Pachman, 2009 WL 5084084 (N.J. Super., A.D., Dec. 29, 2009), the Court was called upon to decide whether a verbal reference in an arbitration to an expunged criminal record could violate a reasonable expectation of privacy and give rise to a cause of action sounding in tort. In New Jersey, “expungement” requires “all” records of a conviction to be destroyed. This in turn can give rise to a reasonable expectation of privacy. The court noted that other states’ laws on expungement may be less strict, and cited cases holding that no claim for violation of a right to privacy existed in those states, under different expungement laws.

The absolute privilege from defamation actions for statements made in judicial proceedings may not apply outside traditional judicial litigation for a, because the protections from wrongful disclosure, like motions in limine, court-ordered sealing of documents, etc., may not apply. The court held that protection of attorneys and witnesses in arbitrations unrelated to the subject matter of the privacy claim (here, in a union grievance arbitration, the fact that the union member had been arrested and convicted, though the conviction was expunged, the expunged conviction was not truly germane to the proceedings) was only qualified immunity, and the attorney could be liable for invasion of privacy unless, on remand, the attorney satisfied a several-factor test.

Thus when records are made privileged or otherwise exempt from disclosure, there may be some basis for a claim that revelation of those records outside the traditional judicial setting could give rise to liability, even though the case was in alternative dispute resolution.

Court of Appeals Declines to Recognize Tort Cause of Action for Damages for Negligent Disclosure of Unsubstantiated Allegations of Misconduct

Milt Rowland — Mon, 01 Feb 2010 11:06:18 -0800

In Corey v. Pierce County, 2010 WL 255956 (Court of Appeals, Div. 1 Jan. 25, 2010), the Court of Appeals reversed a trial court order allowing a claim for damages for negligent release of unsubstantiated allegations of misconduct by a deputy prosecutor. The former deputy prosecutor alleged that disclosure of allegations of misconduct violated her right to privacy. The court held that protection against disclosure by an agency subject to the public records laws must be based upon the Public Records Act (PRA), RCW 42.56. The PRA provides for an action to order publication of information that would be offensive to a reasonable person and not of legitimate concern to the public. RCW 42.56.050; RCW 42.56.230(2). The PRA provides for injunctive relief to prevent this disclosure. RCW 42.56.540. The PRA does not, however, provide a cause of action for damages. The court declined to recognize a common law right of action.

Medical Privacy should always be considered in responding to Public Records Act requests

Sven Peterson — Fri, 29 Jan 2010 08:07:48 -0800

In addition to federal HIPAA (Health Insurance Portability and Accountability Act) requirements, the Washington State Medical Records Act, Chapter 70.02 RCW places strict limits upon the disclosure of health care information. These limits apply to all health care providers, not only to hospitals. This includes anyone who "is licensed, certified, registered, or otherwise authorized by the law of this state to provide health care in the ordinary course of business or practice of a profession." An example would be EMT services provided by fire departments and fire districts. The Public Records Act specifically incorporates the Washington Medical Records Act at RCW 42.56.360. Washington's privacy protections are thus different from and in addition to those provided by federal law under HIPAA. More information regarding HIPAA is available at the U.S. Department of Health & Human Services HIPAA website

House Bill Would Remove the Collective Bargaining Public Records Exemption

Sven Peterson — Tue, 26 Jan 2010 08:14:16 -0800

A bill has been introduced in the Washington State House of Representatives that would remove a public records exemption for certain records regarding public sector collective bargaining. HB 1471 would remove the exemption for all records created or presented during collective bargaining, and all records received by the bargaining representative -- after a collective bargaining agreement is reached.

WAPRO Public Records 101 Seminar, January 26, 2010

Rosa Fruehling-Watson — Wed, 06 Jan 2010 09:45:40 -0800

The Washington Association of Public Records Officers (WAPRO) is sponsoring an all-day seminar entitled Public Records 101 in Lakewood on Tuesday, January 26, 2010. Steve DiJulio, a member of our firm’s Public Disclosure Team, is participating on a panel in the afternoon. The panel will review the latest Public Records Act court opinions and provide insights and ideas on compliance with the Act.

The WAPRO agenda and registration form contains more information about the training.

U.S. Supreme Court to Address Privacy of Text Messages Sent on Employer-Owned Devices

Rosa Fruehling-Watson — Fri, 18 Dec 2009 17:11:41 -0800

The Seattle Times reported this week that the United State Supreme Court announced that it would consider whether an employee has a right to privacy when sending and receiving text messages on an employer-owned electronic device. The case is City of Ontario v. Quon, and is an appeal from a 2008 Ninth Circuit ruling (Quon v. Archwireless Operating Company, Inc.). In that case the Ninth Circuit held that an employee’s right to privacy outweighed the public employer’s right to audit text messages sent from its employer-issued pagers. See our 2008 news alert for more information about the Ninth Circuit ruling.

The U.S. Supreme Court is expected to hear arguments in the case in the spring and issue a decision by the end of June 2010.

Sunshine Committee Issues its Annual Report to the Legislature

Sven Peterson — Tue, 15 Dec 2009 08:19:37 -0800

On November 13 the Sunshine Committee issued its third annual report to the legislature. The Committee adopted recommendations to retain, modify, or eliminate 9 exemptions to the Public Records Act. Among the Committee's recommendations are that the legislature retain exemptions relating to certain records filed with the utilities and transportation commission or Attorney General, including records containing commercially valuable information, and that the legislature eliminate the exemptions that relate to personal records of the legislature, including correspondence and email. The Committee also recommended that all future exemptions be limited to a term of five years, after which they would be examined on a case by case basis.

The Committee's full report including all of its recommendations is available here.

Governor Gregoire signed an executive order on December 3 proposing that the legislature eliminate the Sunshine Committee.

Sunshine Committee on Governor's List For Possible Elimination

Rosa Fruehling-Watson — Fri, 04 Dec 2009 17:23:45 -0800

Yesterday, Governor Gregoire signed an executive order that eliminated 17 boards and commissions and she has asked lawmakers to eliminate 78 other boards, which according to the Spokesman-Review includes the Public Records Exemptions Accountability Committee, also known as the “Sunshine Committee.” The Sunshine Committee reviews and recommends changes to exemptions in the Public Records Act.

Here is a link to the list of eliminated boards and commissions.

State Judicial Ethics Advisory Committee Allows Judges to Blog

Rosa Fruehling-Watson — Fri, 20 Nov 2009 16:58:12 -0800

In a recent Ethics Opinion, the Judicial Ethics Advisory Committee authorized blogging by judges. The Ethics Opinion advises, however, that any judge that engages in blogging should consider posting a disclaimer that the opinions expressed are only those of the author and should not be imputed to other judges and should outline constraints that the judge is subject to in order to avoid ex parte communication.

See our October 23, 2009 blog entry regarding the City of Federal Way v. Koenig case for information regarding the applicability of the Public Records Act to the judiciary.

Kitsap County Parks Department Takes Down Facebook Site In Light of Secretary of State's Records Management Advisory

Rosa Fruehling-Watson — Tue, 10 Nov 2009 10:13:47 -0800

The Kitsap Sun recently reported that on October 28, 2009, the Kitsap County Parks and Recreation Department’s blog (launched September 8, 2009 and hosted on a County intern’s Facebook site) was taken down. According to the article, the decision to take the blog down stemmed partially from the electronic records management advisory issued by the Secretary of State’s office. See our November 4, 2009 blog posting for more information regarding the advisory. The other reasons cited include the need to update the County’s communication policy to cover statements made by employees on third-party sites and the County’s information technology systems so the County can track records created through various social media.

Kitsap County’s decision follows a similar decision made by Alachua County in Florida. According to the Gainesville Sun, Alachua County recently put a ban on staff conducting any county business using text messages – whether using a county-issued cellular phone or a personal cell phone. The reason cited for the ban is the fact that text messages are public records and the county’s computer system has no way to track and save the messages.

Washington State Archives Publishes Records Management Advice Regarding Blogs, Wikis, Facebook and Twitter

Rosa Fruehling-Watson — Wed, 04 Nov 2009 17:12:56 -0800

The Washington State Archives recently published a records management advice sheet entitled “Electronic Records Management: Blogs, Wikis, Facebook, Twitter & Managing Public Records” that provides guidance to state and local government agencies regarding the retention of public records of posts to social networking websites such as blogs, wikis, Facebook, and Twitter.

The advice sheet provides five (5) factors for agencies to consider when managing the retention of public records created or received through social networking sites. These factors include determining whether the posts are public records (yes, if the posts are made or received in connection with the transaction of the agency’s public business). Determining whether the posts are simply copies of records that the agency is already retaining or whether the posts are primary records. Determining how long the posts will be retained and how the agency will retain the posts (especially if the posts are maintained by a third-party vendor). Finally, determining which business activities are appropriate for social networking, particularly if the agency is unable to manage the creation, receipt, and retention of the posts as public records.

Supreme Court of Arizona Holds Metadata is a Public Record

Rosa Fruehling-Watson — Fri, 30 Oct 2009 09:43:27 -0800

Yesterday, the Supreme Court of Arizona held, in a unanimous decision, that under the state’s public records laws any entity that maintains electronic records must disclose those records along with embedded metadata. Lake v. City of Phoenix et al, No. CV-09-0036.

Washington Appellate Court Rules that Destruction of Informational-Only Emails Pursuant to a Records Retention Policy Does not Violate the Public Records Act

Sven Peterson — Mon, 26 Oct 2009 15:15:26 -0800

On October 13, 2009, Washington State Court of Appeals (Division II) affirmed a trial court’s summary judgment in a public records case brought by the Building Industry Association of Washington (BIAW). BIAW sued Pierce County when the County did not produce certain email records that the BIAW had located from a different agency. The court ruled that emails from the Washington Secretary of State’s office to the Pierce County Auditor had been properly deleted pursuant to the applicable retention policies. The Court further held that the State’s Public Records Act (PRA) does not authorize a requestor to comb through agency records searching for records that do not exist.

At issue were several informational emails that were sent by the Secretary of State to all county auditors regarding voter registration forms submitted by the Association of Community Organizations for Reform Now (ACORN). When these emails were not produced by Pierce County in response to a public records request, BIAW sued, arguing that the County was withholding the emails in violation of the PRA or had destroyed them in violation of Washington State's Preservation and Destruction of Public Records Act, chapter 40.14 RCW. In response the County contended that the emails had likely been deleted pursuant to its general records policies since the emails were purely informational. The County submitted affidavits to the trial court demonstrating its office policies and procedures, the use of email, and what had happened in the particular circumstances involved.

The Court agreed with the County, stating that BIAW had failed to introduce evidence contradicting the County’s affidavits. The Court also noted that the County’s procedures comply with applicable retention policies published by the Secretary of State regarding informational only emails; and, that destruction of records in accordance with retention policies is allowed as long as no public records request for those records is outstanding at the time of destruction. Neither the trial court nor the appellate court reached the issue of whether the improper deletion of a record in violation of chapter 40.14 RCW would constitute a separate violation of the PRA.