Local Open Government Blog

Friday LOG Links - May 4

Mike Schechter — Fri, 04 May 2012 16:33:19 -0800

New federal proposal might be great for transparency, but rough on local government wallets. The DATA Act passed the House and heads to the Senate soon. [Governing.com]

Florida Guv provides a "sunburst" of executive emails, available online between 24 hours and one week after creation. [Palm Beach Post]

Utah rolls out new ombudsman to help manage public records issues. [Deseret News]

More open government? Oui! Quebec releases report on transparency initiatives. [Montreal Gazette]

TSA has more delays than O'Hare Airport in winter, takes just four years for FOIA response. [ProPublica]

The Little Things Matter: Public Records Suit Dismissed for Failure to Properly Serve County Auditor

Jeffrey Lane — Tue, 01 May 2012 11:41:49 -0800

In an unpublished opinion, the Washington Court of Appeals affirmed the dismissal of a public records suit due to the requester’s failure to properly serve the Pierce County Auditor. The requester, Larry Day, requested records from the Pierce County Prosecuting Attorney’s office relating to its prosecution of Day. The Prosecuting Attorney’s Office withheld a number of documents as attorney work product. Day subsequently filed a complaint under the Public Records Act naming the Prosecuting Attorney’s Office as the defendant. Day also served a copy of the complaint on the Prosecuting Attorney’s Office. Day did not serve any other public official or department. The Prosecuting Attorney’s Office appeared and filed a Motion for Summary Judgment arguing that Day’s service was improper. The trial court agreed and dismissed Day’s suit.

Counties can be sued under Washington law, but to properly serve a county, the plaintiff must serve the County Auditor or the Deputy Auditor. RCW 36.01.010; RCW 4.28.080(1). In contrast, a county department can only be sued if the law creating the department permits such a suit. Roth v. Drainage Improvement Dist. No. 5, 64 Wn. 2d 586, 588 (1964). Pierce County never designated the Prosecuting Attorney’s Office as an entity capable of being sued. Thus, to effectively serve his suit, Day was required to serve the Pierce County Auditor or the Auditor’s Deputy. Day did not and that mistake proved fatal to his suit.

Moreover, because Day failed to re-file and properly serve the Pierce County Auditor after his original suit was dismissed, the Court of Appeals held that the one year statute of limitations under the Public Records Act had run.

Washington Supreme Court Requires State Patrol to Disclose Accident Records

Mike Schechter — Thu, 12 Apr 2012 12:33:37 -0800

The Washington Supreme Court ruled today that the State Patrol cannot evade disclosure of public accident records using a federal statute and separate agreement with the State Department of Transportation. The decision affirms a 2010 decision from the Court of Appeals, Division II.

The Supreme Court's analysis mirrored that of both the trial court and the Court of Appeals in requiring the State Patrol to disclose requested records related to bike accidents on Seattle's Montlake Bridge. The State Patrol cannot hide behind a memorandum of understanding with the State Department of Transportation and WSDOT’s federal privilege under 23 U.S.C. §409, barring use of collision data in lawsuits. The federal privilege is intended to allow WSDOT to compile and analyze accident data to better implement highway safety measures funded by the federal government without concern that such analysis would be used to support lawsuits against the State.

Although WSDOT has physical custody of the accident records based on the MOU, they are still State Patrol records and subject to disclosure if the State Patrol cannot show an appropriate exemption. While the State Patrol’s reports do provide information for WSDOT’s federally exempt accident tracking and analysis, WSDOT’s exemption does not bar disclosure because the State Patrol collects its accident information for other non-exempt law enforcement investigation purposes.

In addition, the Supreme Court rejected a new argument from the State that the accident reports are confidential. The Court distinguished between reports submitted by motorists, which are largely confidential under RCW 46.52.080, and those submitted by law enforcement officers in the course of their duties, like the records at issue here that must be disclosed.

As we have seen frequently over the years, the Washington Supreme Court again construes the Public Records Act in favor of broad disclosure and will not allow agency exemption arguments to prevail unless the record unequivocally falls into a clear exemption.

To Boldly Go Where No Record Has Gone Before!

Mike Schechter — Mon, 09 Apr 2012 15:39:51 -0800

In a blog post today, NASA rolled out Version 2.0 of its Open Government Plan, aiming for an unprecedented level of transparency among large government agencies. The space agency already has numerous datasets available for public use and is working to make its computer code similarly open. The "flagship initiative" is redesigning nasa.gov to integrate search, video, and social media while building "an accessible, participatory and transparent web environment based on open and interoperable standards."

Maybe the most interesting of NASA's plans are its "technology accelerators." The International Space Apps Challenge will be a two-day global code-a-thon to develop applications solving space and social need problems. LAUNCH is a collaborative effort at social entrepreneurship between NASA, Nike, the US Agency for International Development and the State Department to align innovators, investors, and advisers towards accelerating technological advancement. Finally, Random Hacks of Kindness looks to create a community to develop open source solutions for social good.

Washington Gets a Great Ranking, but Don't Look Under the Hood

Jennifer Peet — Thu, 05 Apr 2012 14:11:37 -0800

Washington placed 3rd in the nation in a recent investigation of “State Integrity,” sponsored by the Center for Public Integrity, in collaboration with Global Integrity, and Public Radio International. www.stateintegrity.org/

This is great news for Washington, but better news without studying the details.

Grades were based on various factors including: accountability at all three branches of government, public access to information, civil service management, internal auditing, pension fund management, insurance commissions, political financing, budgeting, procurement, lobbying disclosure, ethics enforcement, and redistricting. But the devil is in the details, and the details of this grading system are questionable.

As an example, whether state records are accessible at a “reasonable cost” is one component of the grading system and crops up in different areas. Washington agencies may not charge for locating records responsive to a request, nor may they charge for making records available. Washington may, however, charge for the cost of copying documents. In Civil Service Management, Washington received a grade of 0% under the category of making records available at a reasonable cost because it is authorized to charge for providing records. www.stateintegrity.org/washington_survey_state_civil_service_management

In the area of public access to records, Washington received a score of 100% for making records available at a reasonable cost, and the survey cited the same statute allowing the state to charge copying costs. http://www.stateintegrity.org/washington_survey_public_access_to_information The inconsistent metric calls into question the rankings altogether. A closer look into the other categories reveals similar weaknesses.

The Senate Majority Leader from #1 ranked New Jersey said, “I’m still in shock. If we’re number one, I feel bad for the rest of the states.” The Center for Public Integrity credits New Jerseys’ success to recent anti-corruption legislation accompanied by careful enforcement. But the Senator’s surprise may also be attributable to the grading system. Corruption is difficult to predict or prevent, and difficult to unearth while it is occurring. It certainly is difficult to measure. Although Washington performed well in this ranking, it may be wise for all states to chart a path that does not derive from a formulaic investigation of “integrity” or “corruption.”

Friday LOG Links - March 30

Mike Schechter — Fri, 30 Mar 2012 14:42:02 -0800

Broad national survey of government integrity rolls out and raises questions, but we're number 3! New Jersey is number 1?! And Illinois, whose last governor just had a burger and went off to serve his 14-year corruption sentence, is somehow tied for 10th. [State Integrity Investigation]

Beware of your filing cabinets. King County Sheriff gets dragged into City of Medina dispute with its fired police chief over public records copies in the Sheriff's hands. [Seattle Weekly]

Smaller and special purpose government boards like school districts and housing authorities still grapple with open public meeting compliance. Free tip for the day: If your entire board is sitting in the same room and discussing the district's work, it's probably a meeting. [Osage County Herald-Chronicle] [The Saratogian]

Now taking bets on the expected litigation bill for the City of Coos Bay fighting the Sierra Club over $16,700 in attorney fees the City tried to tack on for a public records request. [Eugene Register-Guard]

Friday LOG Links - March 9th

Mike Schechter — Fri, 09 Mar 2012 20:02:48 -0800

White House launches www.ethics.gov as one-stop shopping for open government information. [Wall Street Journal]

New York follows suit with Mayor Bloomberg signing a data transparency law that will allow the City to “continue leading the country in innovation and transparency…” with a unified open-data repository that opens for business in just six short years. [Information Week]

The Legislature giveth and the Legislature taketh: Florida legislature requires newly elected governors to preserve email and other records created before they are sworn in. Florida legislature also re-adopts measure providing a two-year disclosure exemption for tax-incentive deals. [Miami Herald] [Orlando Sentinel]

Washington Court of Appeals rules that enough ($$$) is enough, upholding trial court’s calculation of penalties awarded to Public Records Act frequent flier Arthur West. [Washington Court of Appeals]

Clarity is Key: Court Confirms Fair Notice Requirement of PRA Requests

Alicia Feichtmeir — Tue, 06 Mar 2012 09:49:36 -0800

A recent case decided by Division II of the Washington State Court of Appeals confirms that agencies must receive fair notice of a request for public records. In other words, a request must have sufficient clarity to be recognizable as a request for information under the Public Records Act. The Court also determined that a union representative had adequate standing to file a public records lawsuit on behalf of a union member.

In Germeau v. Mason County, Case No. 41293-4-II, 2012 WL 621468 (Feb. 28, 2012), Richard Germeau, a representative of the Sherriff’s Office Employees Guild (“Guild”), commenced representation of Guild member Detective Sergeant Martin Borcherding, who had been involved in an off-duty domestic dispute.

Germeau was an experienced public records requestor, having made several past requests using the official Mason County Public Records Request Form. Despite his familiarity with the form, Germeau instead drafted a letter to the Sherriff’s Office seeking information and documents pertaining to any pending investigation of Borcherding. The letter did not specify that it was a public records request, and instead emphasized that Germeau, on behalf of the Guild, would be representing Borcherding during the internal investigative and discipline processes.

The Sheriff’s Office did not respond in writing and did not produce documents in response to Germeau’s letter. Several months later, after receiving records from other sources, Germeau believed his original request to the Sherriff’s Office had been ignored, and he had not received all pertinent records. Germeau then filed a complaint against the Sherriff’s Office and the County alleging violations of the PRA.

First, the Court of Appeals reversed the district court’s finding that Germeau lacked standing to bring the PRA action against the County. The Court of Appeals held that Germeau, as a representative the Guild, had a sufficient “personal stake” in the outcome of the suit to have standing on behalf of the Guild members he represents.

However, Germeau’s victory was short lived, as the Court ultimately upheld the district court’s dismissal of the lawsuit. The Court found that Germeau had failed to provide fair notice of a PRA request, and that nothing in the August letter put the County on notice that Germeau was requesting records under the PRA. Instead, the letter appeared to request documents in connection with the Sherriff’s Office’s internal investigation of Borcherding under the Guild’s collective bargaining agreement, not the PRA. Consequently, the Court of Appeals upheld summary judgment for the County and Sherriff’s Office, finding that the agencies had not violated the PRA.

This case provides several helpful takeaways for both agencies and requestors:

Just as an attorney may have standing to bring a PRA claim on behalf of a client, similarly a union representative or the union itself has a sufficient standing to bring a PRA claim on behalf of a union member.
While the fair notice rule doesn’t require a requestor to specifically cite to the PRA, the language of the request must be sufficiently clear so that the agency understands that a request for public records has been made.
For requestors: Clearly state that your correspondence is a request for public records. Whenever possible, use an agency’s official public records request form.
For agencies: Seek clarification from requestors if there is uncertainty about whether correspondence might be a request for public records.

Friday LOG Links - March 2nd with Bonus Videos!

Mike Schechter — Fri, 02 Mar 2012 16:45:24 -0800

It doesn’t look good for the Washington Sunshine Committee to get a dawn surprise from the State Legislature as the session wraps up today. Maybe next year the light’s shinin’ through; they’ve been waiting so long. [Seattle Times]

Paper on “The New Ambiguity of Open Government” questions whether burying citizens in downloadable data through open data initiatives “may placate the public’s appetite for transparency by providing less nourishing substitutes.” We may have seen this argument before: Less filling? Tastes great! [Fierce Government IT]

An Australian government struggles to manage records and fulfill requests of adoptees and former orphans from nearly 50 miles worth of boxes. [Image and Data Manager]

Irony-challenged Georgia legislators ban recording of their meeting before approving new open government laws. Or rabble-rousing reporters conflate two quasi-related topics to make for fun headlines. There’s no winners here. [Atlanta Journal-Constitution]

In not particularly shocking news, spies are sneaky: the CIA jacks up review costs for classified documents without public comment or notice. [National Security Archive at GWU]

Washington Court Ruling Encourages Installment Responses to Records Requests

Milt Rowland — Fri, 02 Mar 2012 14:05:31 -0800

In Double H, L.P. v. Washington Department of Ecology, No. 29918-0-III, 2012 WL 593213 (Feb. 23, 2012), the Washington Court of Appeals, Division III, was called upon to decide whether the trial court abused its discretion in grouping two public records requests as one request for purposes of deciding the number of days for which a penalty under RCW 42.56.550(4) would be awarded. The trial court decided that the requestor’s two requests, which sought only records related to an Ecology investigation of Double H, should be grouped as a single request for purposes of penalties. The trial court also declined to penalize Ecology for producing the requested documents (totaling about 3,000 pages) in installments, and declined to award penalties for the groups requested separately. This court affirmed, holding that these determinations were discretionary with the trial court and that the trial court had not abused its discretion.

Double H requested records related to a DOE investigation of it, in August 2009. Ecology sent the mandatory five-day letter, estimating that the responsive records would be produced the week of September 10, 2009. In fact, although production began with an installment provided on September 24, 2009, two other sets of responsive records were produced later. In January 2010, Double H renewed its request, to catch records not in existence in August 2009, and Ecology estimated that these would be produced the week of March 19. However, the first installment of responsive records was produced a month later, and the final installment was not produced until January 2011. Ecology stipulated that the penalty period was 683 days.

The court noted that the “PRA embodies two mandates in determining a penalty amount. First, a penalty is mandatory when a requesting party is improperly denied access to a public record under the PRA.” The court added, “Second, a penalty shall be awarded for each day records are wrongfully withheld.” But, as Ecology argued (and the Court agreed), “beyond these mandates, establishing the penalty amount is within the sound discretion of the trial court.”

This court relied on Yousoufian v. Office of Ron Sims, 152 Wn.2d 421, 98 P.3d 463 (2004) (sometimes referred to as “Yousoufian II”), and Sanders v. State, 169 Wn.2d 827, 864, 240 P.3d 120 (2010), for the proposition that a grouping of records for purposes of calculating the number of records for which a penalty must be assessed must be reasonable, and further the purposes of the PRA. The problem with artificially grouping records according to the dates of installment production, according to the court, is that such grouping ultimately penalizes an agency for producing records in installments. An agency liable for, e.g., $27 per day in penalties for a total failure to produce records for, e.g., 683 days in delayed production of one group of 3,000 records would pay less than an agency that produced those same 3,000 pages in 25 installments over that 683 day period. This result, the court held, would be contrary to the purposes of the PRA.

Are Penalties Applied Separately to Each Public Records Response? It Depends.

Lindsay Coates — Thu, 23 Feb 2012 16:01:32 -0800

In Double H. L.P. v. Washington Department of Ecology (No. 29918-0-III), Division III of the Washington Court of Appeals clarifies that a court is not required to impose separate penalties on each improper public records response. Instead, a single penalty may be applied to a series of responses when they relate to the same subject matter.

The Department of Ecology received an initial records request from Double H. L.P. regarding Ecology’s investigation of illegal hazardous waster disposal on Double H’s farm. Double H. later followed up with a “refresher” request for records created after the date of the initial request. Ecology responded by producing records on nine different occasions and posting an exemption log that identified certain records withheld from production under various exemption claims.

Ecology conceded that withholding some of the documents violated Washington’s Public Records Act. However, the trial court concluded that only one group of records existed for penalty calculation purposes and that a separate penalty would not be applied to each separate production date. The Court of Appeals upheld the trial court’s reasoning and rejected Double H.’s argument that multiple production installments require multiple penalty groups (which, not surprisingly, would have substantially increased the overall penalty awarded).

The Court of Appeals applied an abuse of discretion standard and reviewed whether the trial court’s decision was manifestly unreasonable or based on untenable grounds. It expressly recognized that nothing in the PRA, and nothing in the Washington State court cases interpreting the PRA, requires trial courts to create penalty groups in a specific fashion.

In summarizing its holding, the Court of Appeals stated that selecting a same-subject group for penalty purposes (rather than a group based upon production dates) encourages agencies not to withhold records until fully assembled and promotes early record production. While this decision does not necessarily prevent a trial court from applying a separate penalty to each record production, it does provide trial courts the flexibility to consider a public agency’s attempt to provide responses in a timely manner when records and information first become available.

Friday LOG Links

Mike Schechter — Fri, 17 Feb 2012 02:36:19 -0800

US Department of Justice wins Rosemary Award for worst open government performance in 2011. Some journalists report Attorney General Eric Holder misunderstood the award and responded “you like me, you really like me” but that cannot be confirmed as 18 ½ minutes of the awards banquet video were erased. [National Security Archive – George Washington University]

The Open Government Singularity is nearly upon us, but California might be getting there just a bit quicker. One day, all government business and expenditures will relate to public records and open meetings; all public records requests will be about the expense of public records lawsuits. [The Sacramento Bee – Capitol Alert]

The high cost of reviewing public records about public records requests: Hawaii agency expects cost of producing a year’s worth of requests to run $123,000. [Honolulu Civil Beat]

Would you be reading this if it were printed in 8-point type next to the obituaries? Journalists are fighting to keep published public notice requirements in place. [Society of Professional Journalists]

British civil servants sound like American civil servants when it comes to public records requests, except for the accent. A survey by the UK Ministry of Justice finds their FOIA “has failed to increase understanding of government, may have reduced trust and has done little to improve decision-making in Westminster.” [The Guardian]

Friday LOG Links

Mike Schechter — Fri, 10 Feb 2012 17:34:50 -0800

You’re not from around these parts – 4th Circuit upholds Virginia’s denial of non-residents’ public records requests. [Courthouse News Service]

CSPAN Nine in the making? Senate Judiciary Committee votes in favor of allowing television cameras into the U.S. Supreme Court; Scalia retorts that only town criers were contemplated by the Founders. [Citizen Media Law Project]

New Jersey municipalities attempt to limit videotaping of council meetings. What happens if Snooki and J-Woww show up unexpectedly? [The Record/NorthJersey.com]

New tools, new arguments. Cities struggle with tablet computing and text messages during meetings. At least the fights aren’t about Angry Birds and sexting in session. Yet. [Petaluma Press Democrat] [Voice of OC]

Washington cities are trying to balance blogs, tweets, pokes, and likes with laws written four years before Steve Jobs sold his first Apple. [Kitsap Sun]

Seattle Times reports about Gold Bar Community Relations

Steve DiJulio — Mon, 06 Feb 2012 13:38:26 -0800

Update: The Seattle Times corrected its coverage to reflect that Councilmember Wright was convicted of domestic violence assault in 2007.

On February 5, 2012, Emily Heffter from the Seattle Times reports about Gold Bar:

Most small towns have a local busybody.

In Gold Bar, it's Anne Block, whose hyperlocal news site is a hotbed of rumors and accusations. She writes that city officials are "evil people," "wife-beaters" and "promiscuous." There also are restaurant recommendations and a recipe for peanut-butter cups.

On her site, goldbarreporter.org, Block likened the former mayor to a dog and accused the former City Council of tampering with meeting minutes, hiding public records and making Gold Bar like "a religious fundamentalist town in Iran."

Block, 44, is an attorney who has become one of Snohomish County's most notorious activists as she's taken her crusade for a more transparent government online. She's also become a divisive figure in tiny Gold Bar, which is dealing with money problems while trying to respond to Block's four lawsuits and extensive requests for public records.

Block, a Massachusetts native, moved to Gold Bar in 2006 after law school and started her news website to try to publicize what she alleges as corruption at Gold Bar City Hall. She is aided by unsuccessful City Council candidates Susan Forbes and Joan Amenn.

Block and her partner visited the Seattle area and loved it so much they decided to move to Gold Bar so she could set up her employment-law practice. Her partner, Noel Frederick, also has an interest in politics and has run for City Council.

"What motivates us? Basically, in a nutshell, it's open government and the idea that a handful of people can effectively make change, just like Martin Luther King and Elizabeth Cady Stanton and Susan B. Anthony," Block said.

Asked whether they're certain everything on the site is true, Block and Forbes answered simultaneously:

"Yes," said Block.

"It may not be perfectly true," said Forbes, "but there's something in it that's true."

In September, Block posted a story alleging that County Executive Aaron Reardon spent taxpayer money on a trip "with his mistress and a former Snohomish County employee."

The allegation came out of the blue during Reardon's re-election campaign — at the top of a story titled: "Reardon's deck of cards loaded with jokers and criminals" that featured his photo floating in front of a background of animated falling confetti.

A month later, a county employee did come forward and say she had traveled with Reardon on county trips as part of an affair. The State Patrol is investigating whether Reardon misused county funds. The executive has denied criminal wrongdoing, but has not commented on the alleged affair.

There's a gray line between opinion and fact, said Judy Endejan, who practices media law in Seattle. But the language on Block's website raises a red flag, she said.

"Right now we're in an age where, you know, it's kind of the Wild West because people feel like they can just say anything on the Internet and not have to suffer the consequences, and that's not really true," she said.

'Too much corruption'

The Gold Bar Reporter's newsroom is Block's kitchen table in a subdivision with a mountain view. There in front of her laptop — with her snowflake tablecloth and collection of souvenir spoons — she churns out articles about local officials and puts them online.

"We decided there's been just too much corruption out here in Gold Bar, so we had to do something," she said in an interview she agreed to do via Skype because she believes her phone lines are tapped.

Eventually, Block, Amenn and Forbes would like a traditional community news site. But they said there's so much corruption they don't have time to write many feature stories.

Block started going to City Council meetings a few years ago and became annoyed that the mayor, Crystal Hill, was bringing her kids to the meetings and leaving them in the break room. So, she said, she emailed Hill and told her to get a baby-sitter because they were disrupting the council.

Later, Block requested all of Hill's email, then accused her of a whole list of things: affairs, extortion, hiding public records, and she even disclosed an alleged medical condition. She put it all on her website, because, she said, "Why not?"

Hill didn't want to comment for this story. She married John Pennington, the head of the Snohomish County Department of Emergency Management, and moved out of town in 2009 before her term ended.

Hill has said she resigned because of relentless harassment.

She told The (Everett) Herald shortly after she resigned that someone using an alias had been bombarding her, her family and her Seattle employer with emails accusing her of using drugs, supplying drugs to city staff and having an affair with a fired city employee. Hill said at the time the allegations were false and she had little recourse.

For Block, one records request led to another, and another, and several with Snohomish County government, as well. One of her lawsuits seeks records that mention her own name.

"She's a hot topic in town," said City Councilmember Christopher Wright. "It's not a secret that Anne Block is suing the city and making wild accusations about people."

The Gold Bar Reporter calls Wright "a deviant criminal, wife beater and liar." Court records show Wright has never been charged with domestic violence, though he was convicted of assault and drunken driving almost 20 years ago.

Wright said he has had to answer co-workers' questions about whether he really beat his wife. (He says he didn't.)

"People would come up to me and say, 'Oh, we read about you online.' And that's when it really, really got to a point that I really would have loved to sue her," he said.

Block estimates she's read 125,000 city and county emails. She knows a lot of dirt on everybody — and her articles range from true to partly true or exaggerated.

Says Endejan, the media lawyer: "If you accused someone of being a drunken wife beater, I would probably drill you pretty hard on what facts you had to support that, and one drunken-driving conviction 25 years ago probably wouldn't do it for me."

But everyone is so afraid of being sued by Block that they don't dare try to stop her, said Mayor Joe Beavers. On Block's site, the mayor is nicknamed "Tricky Beavers."

Gold Bar is home to about 2,000 people. That means Block, Forbes and Amenn run into their subjects at the grocery store, the gas station, everywhere.

The situation has taken a toll on their relationships with the locals.

After handling Block's records requests for a couple of years, the city clerk said in a court declaration that she was uncomfortable serving as a witness in a lawsuit because the Gold Bar Reporter website had created an environment that was "contentious and hostile."

Block doesn't go into City Hall alone, and she recently bought a gun because she said someone tried to kick in her door.

"I've had death threats. I've had beer bottles thrown on my front lawn."

Actually, she clarified, it was a half-filled can of Miller. She has photos she says prove someone put a tracking device on her car.

"I wonder when I turn the key to my car one day whether it's going to blow up."

Chunk of budget

In 2010, Gold Bar spent $70,000 of its $573,898 budget responding to public-records requests, almost all of which were from Block and Forbes, according to a filing in Snohomish County Superior Court.

"As mayor, I have had little time to do anything but respond to the PRRs that have been submitted and continue to be submitted by Forbes and others," Beavers wrote in a statement for the court.

Beavers is lobbying the Legislature for a law that would allow cities to deny records requests they deem harassing.

The city has paid thousands of dollars to an Issaquah technology company to dissect Hill's personal Blackberry to ferret out her disclosable emails. Gold Bar hired a sixth employee and transferred one of its two maintenance workers into City Hall to help respond to requests, according to the mayor's court affidavit.

Wright says they are spending so much on records requests, they can afford to snowplow only the major arterials.

City officials say they don't read the Gold Bar Reporter ("except for humor," said Beavers). But they have saved hundreds of printouts documenting the last three years of postings.

The Jan. 10 City Council agenda had 10 items, and eight of them were regarding lawsuits filed by either Block or Forbes.

The crusade is costing Block tens of thousands of dollars of her own money, she said, but she won't back down because she's so committed to cleaning up government.

In a September 2009 posting, Block summed up her potential impact this way:

"For years, people like Crystal Hill ... have controlled and manipulated Gold Bar residents and local politics. But with an activist attorney in Gold Bar, along with a new online newspaper, those days are numbered."

Information from The Associated Press is included in this report. News researcher Gene Balk contributed.

Emily Heffter: 206-464-8246 or eheffter@seattletimes.com. On Twitter @EmilyHeffter.

Social Media is an Opportunity and a Threat for Public Entities

Jennifer Peet — Fri, 03 Feb 2012 09:33:25 -0800

Social media is an issue for local government everywhere as shown by the Jackson (Mississippi) Fire Department’s recent foray into internet posting policies. A disgruntled former employee created a Facebook post with unsavory information about the Fire Department, forcing the Department into a conversation about its social media policy.

The Jackson Fire Department issued a memo on social media, while the City itself is still developing a full policy. The Department’s memo encourages employees not to: publicly discuss issues that might be detrimental to the Department or that might conflict with the duties and ethics of a firefighter; to air personal grievances; and clarify that their opinions are their own and not those of the Department.

The rise of social media outlets like Facebook, LinkedIn, and Twitter presents an important communication opportunity for public entities and their constituents. However, the use of social media needs to be carefully planned to avoid pitfalls. Social media is, by definition, an interactive tool intended to create conversations among users and provide a venue for commentary and feedback. For public entities, the tool is useful for broadcasting to a growing internet audience, but allowing feedback and conversation can be a risk. Like the Jackson Fire Department, every government entity will need to have a conversation about the inherent conflict between an individual’s free speech rights and the government’s legitimate right to protect the government service.

Although it is important for public entities to use as many of these communication channels as practicable, the constant need to update and monitor social media outlets drains staff resources.

Public entities must also consider how they will comply with their archiving and public records responsibilities when communicating in an electronic format.

It should be clear to constituents that messages intended for the public agency should be conveyed through the agency’s official website. For example, a public records request or other official query won’t necessarily be recognized via Twitter or Facebook.

These considerations are plaguing the private sector, as well. McDonald’s launched a Twitter campaign last week with the hash tag: “#McDstories.”

When users co-opted the hash tag to distribute negative stories about McDonald’s, the company rapidly ended the campaign. The company stated in an email to the Silicon Valley Business Journal: "With all social media campaigns, we include contingency plans should the conversation not go as planned. The ability to change midstream helped this small blip from becoming something larger." This is a wise strategy for any entity using social media, public or private.

Don't Touch That File Cabinet! California Allows Lawsuits to Halt Record Disclosure

Mike Schechter — Mon, 30 Jan 2012 09:42:42 -0800

A new case from the California Court of Appeals confirms that third parties named in public records may file “reverse” public records lawsuits to prevent disclosure by California public agencies. The case concerned a Santa Monica high school teacher who had been investigated and disciplined for sexually harassing a student. Two years later, a parent filed a public records request under the California Public Records Act seeking all of the school district’s records related to that investigation and discipline.

The teacher filed suit against the school district seeking to stop disclosure of the records. Ultimately, the Court of Appeals held the teacher’s suit was valid, but that these particular records should be disclosed because the public interest outweighed the teacher’s right to privacy. The disclosure was mandated to a large degree because a reprimand had been issued. California agencies, however, may disclose personnel disciplinary files whenever the complaint is “substantial” and “there is reasonable cause to believe the complaint is well-founded” regardless of the actual disciplinary outcome.

As a result, California public agencies can begin to implement the best practices seen in similar jurisdictions (including Washington State), where disclosure exemptions are permissive rather than mandatory. When “reverse” public records lawsuits are allowed and an agency believes that a record’s release may be sensitive to a third party, there is generally no bar to an agency informing the third party of its intent to release records (so long as the agency is still acting within appropriate response times and other public records act requirements). For California agencies, unlike Washington, this is the only way to seek court review before disclosure because the agencies themselves are barred from filing lawsuits asking for guidance.

Clarifying Records Request Clarifications - All Clear? Court of Appeals Rules Confused County was Reasonably Confused

Mike Schechter — Mon, 23 Jan 2012 17:02:34 -0800

Today’s Washington Court of Appeals decision in Levy v. Snohomish County stems from Inmate Percy Levy’s less-than-clear records request to the County Prosecutor’s office:

“While pending trial back in 2002… my attorney provided me with a statement made by my co-defendant Breena Johnson. I want a copy of that statement.”

Perhaps unsurprisingly, the designated public records officer sought clarification from Levy, because the records officer was neither Levy nor his attorney. Today’s decision again points out that agencies managing public records requests are allowed to seek clarification and don't need to be mind readers.

As the records officer tried to clarify and fulfill the request without heedlessly duplicating responses to a previous request that Levy had made, Levy first denied he had made a previous request. Then Levy acknowledged the previous request.

Finally, after 59 days and several rounds of confounding correspondence, Levy was in possession of the two documents he apparently had sought. For its troubles in interpreting Levy’s request and conscientious attempt to not burden an inmate with the cost of paying for records he already had, the County was rewarded with a public records act lawsuit.

Levy’s lawsuit alleged that the County’s request for clarification was unwarranted and that the 59-day “delay” was unreasonable. The Court of Appeals found that the County’s request for clarification was reasonable and that there was no delay. The County did inadvertently omit one document when it finally understood what Levy was requesting, but realized its oversight and sent out the document one day later.

Although the Court does not break new ground, the decision serves as a reminder about the need for diligence and documentation in responding to public records requests. Snohomish County was able to show the patent ridiculousness of Levy’s lawsuit by demonstrating that it promptly responded to every communication from him and was striving to understand his request. This case is another example of inmates using the Washington PRA for other than the act’s intended purpose of fostering public access to documents. Such cases caused the legislature to restrict the rights of inmates under the PRA.

Tri-City Herald Reports on Massive Document Production in Response to Request from Annexation Opponent

Steve DiJulio — Wed, 28 Dec 2011 14:38:01 -0800

The ongoing controversy over a City of Pasco annexation authorized by legislation adopted by the State Legislature in 2009 (ESSB 5808), has resulted in broad requests for City public records. The requests are so expansive as to cause substantial delay in production of the public records. This is not an unusual occurrence, as the Public Records Act (PRA) is regularly used as a political tool against public agencies. This approach is completely permissible under Washington law, as a requester need not identify the purpose for the records request. Washington has regularly recognized that the often substantial cost of compliance, even in the face of an unjustified records request, is outweighed by the policy supporting public access to documents. The Legislature and courts have only responded to date with respect to prisoner's suits under the PRA. See January 20, 2011 posting on this blog.

Walla Walla Union-Bulletin Urges County Commissioners and Sheriff to Meet in Public

Steve DiJulio — Mon, 12 Dec 2011 12:32:39 -0800

In an editorial on December 9, 2011, the Walla Walla Union-Bulletin commented as follows:

Dec. 09 -- The budget discussion between Sheriff John Turner and the three county commissioners got heated this week when it veered off course.

Instead of focusing on the specifics of the budget, the meeting became a debate over whether commissioners Gregg Loney, Greg Tompkins and Perry Dozier should meet individually with Turner and his command staff to discuss and develop strategic plans for the Sheriff's Office.

It is simply not the job of the county commissioners to help develop strategic plans for the Sheriff's Office. That is the sole responsibility of the county sheriff, who is directly elected by the people of Walla Walla County.

The Board of County Commissioners is a legislative body. The commissioners are elected to oversee the overall operation of the county, which includes establishing the budget.

The three commissioners, however, are not the sheriff's direct boss. The people are the sheriff's boss.

The expectation is that the sheriff oversees the Sheriff's Office and establishes polices and develops strategic plans. The sheriff makes a budget request to the commissioners, who then allocate funding based on those plans as well as other factors such as the needs of other county offices and how much money is available.

Holding private meetings on a regular basis between individual commissioners and the sheriff is unnecessary.

That's the case whether it is the sheriff or any of the other independently elected county officials. The auditor does-n't develop strategy with the commissioners on how to run an election nor does the coroner develop with commis-sioners policies regarding autopsies.

The three commissioners said they would be willing to discuss various issues with Turner in a public meeting that is recorded -- just like all commission meetings.

"That way we all hear the same thing and they are recorded for the public to listen to, and then I would be willing to do that. And I've told the sheriff that, too," Tompkins said.

Exactly. The people's business should always be done in public.

Turner, however, has concerns about meeting in public.

"You know that plan doesn't work because when it comes to tactics and how we deploy people (and) when we talk about the tremendous civil and safety liability issues to the office, that's not for the public," he said.

It was suggested by a commissioner that when sensitive topics come up the commissioners and sheriff could meet behind closed doors in an executive session with their attorney.

Absolutely not. We do not believe that would be legal under the state's Open Public Meetings Act. The law nar-rowly defines the subjects for which meetings can be closed, things such as personnel matters and pending litigation. Strategic plans for law enforcement do not apply.

Developing strategic plans is best done by the sheriff and his command staff. And after those plans are developed the commissioners -- in public -- provide oversight through the budget process.
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Visit Walla Walla Union-Bulletin (Walla Walla, Wash.) at union-bulletin.com.

Everett School Board Plans a Meeting About Meetings

Steve DiJulio — Mon, 28 Nov 2011 11:26:06 -0800

On November 25, 2011, Sharon Salyer of The Herald reported on Everett School Board planning to hold a forum early next year to discuss open government. The following is a reprint of the article in full:

Controversy has swirled around the Everett School Board all year over openness and transparency.

The school board now plans to hold a forum early next year to have outside experts discuss issues such as the state Open Public Meetings Act and the steps involved in getting records from government agencies.

Ed Petersen, school board president, suggested during a meeting Tuesday night that the school district contact a nonpartisan group, such as the League of Women Voters. The group could help select the experts who would speak on the state's open-government laws.

The goal is to have the event in January or February, Petersen said. It would give the public an opportunity to talk about openness in government.

"The benefits we're looking for are a better informed community and information from those who attend to help us in our operations," he said.

The idea for the forum was first proposed in September, as the School Board was wracked with controversy following a scuffle among three members, Petersen, Kristie Dutton and Jessica Olson.

Olson has often been at odds with other board members since being elected in 2009. Fellow board members have censured her twice this year.

At the same meeting that the school board was considering Olson's second censure, planner Reid Shockey of Everett suggested the special public meeting, which would include a panel of experts discussing open government and the state Open Public Meetings Act.

In other business during Tuesday's School Board meeting, board members discussed whether to grant a request from Olson to see unredacted copies of legal invoices or bills since June from a Seattle law firm which advises the school district.

Board member Jeff Russell said he was concerned about Olson's request to view unredacted invoices because they contain private and confidential information about staff, students and families.

"We rightly place conditions upon the viewing, copying, reporting or moving of such records," he said.

Dutton asked for Olson to sign a document saying that she would not remove any of the documents or post them on social media sites or in other way violate the privacy rights of those involved in legal issues.

"We have had Director Olson's assurance before that she would not copy or take the invoices and she did exactly that," said board member Carol Andrews.

Olson asserted that the legal invoices are not confidential. "They're the public's documents," she said.

Student names are abbreviated or initials are used, she said. Her earlier review of the legal billings showed "there was not one piece of information ... required to be redacted."

"We're telling the public that the invoices belong to the district and not the public," she said. "Each one of us is duly elected by the citizens. We have the right to go in and look."

The School Board voted not to allow Olson to see the unredacted invoices. However, Andrews later suggested that the board allow all board members regular access to redacted attorney invoices.

The motion was made after Olson left the meeting after approximately three hours due to a scheduling conflict. That motion was approved unanimously for the four remaining board members.

Sharon Salyer: 425-339-3486; salyer@heraldnet.com.