Local Open Government Blog

Redact or Withhold? Will the State Supreme Court's New Disclosure Flow Chart Be Useful?

Foster Pepper — Fri, 10 May 2013 13:18:23 -0800

Yesterday was a busy day for public records issues, as the Washington Supreme Court issued two detailed decisions relating to the State Public Records Act. In Ameriquest Mortgage Co. v. Office of the Attorney General, the Court held records that include personal financial information protected under the Gramm-Leach-Bliley Act of 1999 (GLBA) must be withheld from disclosure under Washington’s PRA, even if the protected information could be redacted. On the other hand, in Resident Action Council v. Seattle Housing Authority, the Court held that records including information protected by certain federal housing regulations must be disclosed under Washington’s PRA, after making appropriate redactions.

The Court in Resident Action Council also provided a new disclosure flow chart and exemption categories for agencies to use in determining whether to disclose information or records pursuant to a PRA request.

Records that Include Information Protected by the Gramm-Leach-Bliley Act are Entirely Exempt from Disclosure Under Washington’s PRA

In Ameriquest Mortgage Co. v. Office of the Attorney General, the Supreme Court unanimously held that records including information protected by the GLBA must be withheld from disclosure under Washington’s PRA, even if the protected information could be redacted.

The Court in Ameriquest reviewed PRA requests for documents held by the Washington State Attorney General’s Office that it received from Ameriquest Mortgage Company as part of an AGO investigation into Ameriquest’s lending practices. Under the GLBA, financial institutions are prohibited from disclosing nonpublic personal information without notice to the consumer. However, an exception applies to those financial institutions complying with an investigation. The GLBA also prohibits agencies from using protected information outside the scope of their investigation and from disclosing such information to a third party. The Court in Ameriquest held that the documents obtained by the AGO that include nonpublic personal information protected by the GLBA are entirely exempt from disclosure under Washington’s PRA because redacting the nonpublic personal information prior to disclosure is outside the scope of the AGO’s investigation and, therefore, outside the use permitted by the GLBA.

(Note that in Resident Action Council, discussed below, the Court recognizes that this result is unusual. “If it is information within a record that is exempted, such information usually can be effectively redacted.”)

The AGO also obtained records from Ameriquest that did not include nonpublic personal information protected by the GLBA. The Court held that these records are subject to disclosure under Washington’s PRA because (1) the documents are not essential to law enforcement and, therefore, do not qualify under the statutory investigative record exemption (RCW 42.56.240); and (2) the documents are not exempt under the State Consumer Protection Act (chapter 19.86 RCW), as Ameriquest provided them voluntarily rather than pursuant to a civil investigative demand.

Records that Include Information Protected by HUD Must be Redacted and Disclosed Under Washington’s PRA

The Supreme Court in Resident Action Council v. Seattle Housing Authority held that records including information protected by HUD must be disclosed under Washington’s PRA, except for the personal information of welfare recipients, which should be redacted. The Court also held that it was within the trial court’s discretion to order the Seattle Housing Authority (SHA) to (1) electronically produce documents that are redacted in a particular format; (2) publish procedures regarding public records requests, a list of applicable exemptions, and policies governing redaction, explanations of withholding, and electronic records; and (3) pay statutory damages ($25 per day) and attorney fees to the Resident Action Council.

Under HUD regulations, SHA is required to keep one copy of each written grievance decision in the tenant’s folder and another copy with all names and identifying references deleted on file for inspection by other tenants who may seek to file a grievance in the future. RAC requested electronic copies of all hearing decisions (both redacted and unredacted) under Washington’s PRA. SHA unsuccessfully argued that HUD regulations preempt disclosure of the unredacted decisions and that an unredacted decision is entirely exempt from disclosure if it contains personal information of welfare recipients.

In the majority opinion written by Justice Gonzalez, the Court stated that HUD regulations merely ensure a limited form of disclosure to a limited class of persons in order to promote fairness within each housing authority’s grievance hearing process. HUD has made clear that it intends for state laws to generally govern disclosure and production of housing authority documents.

The Court also stated in the majority opinion that most of the 141 exemptions under the PRA are “categorical,” exempting without limit a particular type of information or record (e.g., RCW 42.56.230(5) (exempting debit card numbers)). Conditional exemptions, which are less numerous, exempt a particular type of information or record, but only insofar as an identified privacy right or vital governmental interest is demonstrably threatened in a given case. If a type of record is exempt, then meaningful redaction generally is impossible, unless redaction actually transforms the record into one that is outside the scope of the examination. If information within a record is exempt, such information “usually” can be effectively redacted. (Note, the Court reached an “unusual” result in Ameriquest Mortgage Co., discussed above, with respect to information protected by the GLBA that cannot be effectively redacted).

The majority opinion divides the 141 current statutory PRA exemptions into the following new categories (set forth in Appendix A of the decision):

(1) Categorical-information exemptions;

(2) Categorical-record exemptions;

(3) Categorical-hybrid exemptions (exempting both information and records);

(4) Conditional-information exemptions;

(5) Conditional-record exemptions;

(6) Conditional-hybrid exemptions; and

(7) Ambiguous exemptions that “require serious consideration and construction” prior to any attempt at appropriate grouping.

Applying the new exemption categories, the majority opinion then set forth the following disclosure flow chart, instructing agencies on the steps that must be taken in determining whether disclosure is required under the PRA:

Notably, the concurring opinion written by Chief Justice Madsen stated that the categories and flow chart in the majority opinion exceed the scope of the question before the Court. The concurring opinion also stated that several of the majority’s PRA classifications are questionable. While four out of the nine justices signed the majority opinion, Justice Owens joined only with the result, which may limit the precedential value of the new chart and categories.

Under the PRA, Non-Physicians are Peers of Physicians

Lee Marchisio — Mon, 22 Apr 2013 13:14:28 -0800

Responding to complaints about Dr. Cornu-Labat, Quincy Valley Hospital conducted two ad hoc investigations concerning separate allegations of intoxication and incompetency to practice medicine. The ad hoc investigations failed to uncover enough evidence to substantiate either claim. However, hospital administrators “remained concerned” for the Doctor, placed him on paid administrative leave, and referred him to the Washington Physicians Health Program. After Dr. Cornu-Labat refused to visit WPHP, which precluded WPHP from issuing a recommendation on his fitness to practice medicine, the Hospital fired him.

Dr. Cornu-Labat filed separate Public Records Act requests for documents relating to both investigations. The Hospital denied the first request, claiming the Hospital was not an agency subject to the PRA and that the records relating to the intoxication investigation were “investigative” and exempt under RCW 42.56.240. His second, third, and fourth requests sought documents from both investigations, and the Hospital eventually denied those requests under PRA exemptions specific to the healthcare industry.

The Grant County Superior Court held that the peer review exemption cited by the Hospital did not apply because under RCW 4.24.250 (and RCW 42.56.360) peer review committees must be regularly constituted and consist of professional peers. The ad hoc investigations here included non-physicians.

The Washington Supreme Court reversed and held that the plain language of RCW 4.24.250 extended the exemption to committee records of non-physician staff sitting on the committee. RCW 42.56.360 did not narrow the scope of “peer review committee” for the purposes of exempting records from disclosure under RCW 4.24.250. Because other peer review statutes allow officers, directors, and employees to sit on review committees, the Hospital’s ad hoc investigations qualified as peer review committees even though non-physicians participated.

The Court remanded on this issue to determine whether the investigations were a function of regularly constituted committees or whether the investigations were conducted by ad hoc committees not entitled to the exemptions under RCW 4.24.250. The Court also remanded to determine whether the records sought embodied the proceedings of a formal meeting of the Hospital board (or its staff or agents) concerning the Doctor’s clinical privileges and therefore exempt from disclosure under RCW 70.44.062(1)). If the records were generated during a general investigation into Dr. Cornu-Labat’s alleged misconduct, then this exemption would not apply.

Finally, the Court rejected the Hospital’s argument that the confidentiality provision of Dr. Cornu-Labat’s employment contract precluded the Doctor from requesting hospital records involving members of its medical staff. The Doctor’s identity and his employment contract were irrelevant “because the PRA states that agencies may not inquire into the identity of the requestor or the reason for the request.” Employment contracts “cannot override the PRA.”

"Express Lane" for Routine Public Records Requests

Lindsay Coates — Fri, 08 Mar 2013 10:36:14 -0800

The Tri-City Herald reports that the Pasco City Council, in a 5-2 decision on Monday, adopted a new policy for handling public records by creating two processing tracks based upon on the complexity of the request. The new policy is intended to help the City process relatively simple requests quickly and efficiently, without the need to be held up when staff resources are required for large, more complex requests.

Under the policy, city staff are required to use an evaluation sheet to determine whether the request is “routine” or “complex.” The factors considered are:

(1) the general, expansive or all inclusive nature of the request;
(2) the number of departments involved;
(3) the location of records and available method of searching records;
(4) the potential number of records implicated;
(5) the rights of third parties;
(6) the need for clarification of the request;
(7) administrative tasks necessary to process the request;
(8) the amount of time needed to review documents for applicable exemptions;
(9) the need for legal review of the public records request;
(10) the format of relevant records; and
(11) other relevant circumstances

A request that scores 8 points or less on the evaluation sheet is considered a “Routine” request, while a request that scores 9 points or more is considered “Complex.” City staff (i.e. the City Clerk) will then spend 50% of available time processing Routine requests and 50% of available time processing Complex requests. The agenda report describes this policy as being similar to that implemented in grocery stores with “express lanes,” for those customers with a limited number of items.

Pasco’s policy also provides requestors the option to simplify their request in order to jump from the regular lane into the “express lane” and sets forth an appeals process for those requestors who wish to appeal their initial score.

The City Council plans to review the policy in six months to see how it's working and whether further changes are needed.

2013 Olympia Legislative Update - Open Government Bills Still Alive

Mike Schechter — Mon, 25 Feb 2013 13:05:44 -0800

Last Friday, February 22, was the first major deadline for legislation to stay under consideration in the Washington State Legislature this session. Bills had to pass out of policy committees by 5 p.m. (except for bills in the House fiscal committees and Senate Ways & Means and Transportation committees where the deadline is March 1).

The following bills are still alive following last Friday’s deadline. Some have been modified, while some remain in their original form. The next important date for legislation is March 13, 2013, the last day for bills to be considered in their house of origin (full legislative calendar here).

SHB 1198: Training of Public Officials and Public Record Officers
This bill would require the Attorney General to develop and implement training programs for the Public Records Act and Open Public Meetings Act and requires members of governing bodies and elected officials (within 90 days of taking oath) and public records officers (at regular intervals) to complete the training courses.

SHB 1037: Cost Recovery Mechanism for Public Records Requests
This bill would authorize an agency to charge a fee to recover the cost of furnishing a public record, including an electronic record, where the request is for a commercial purpose and not otherwise exempted. However, an agency would be prohibited from assessing the fee if the requestor is a member of news media, a nonprofit organization, an educational institution, or certain other persons and entities entitled to obtain the requested information or exempted by the bill.

SHB 1128: Injunctions and Time Limitations on Public Records Requests
This bill would authorize an agency to seek an injunction against public records requests if certain conditions are met. These conditions include harassing or retaliatory requests, requests that create an undue burden, safety threats arising from requests, or requests that would assist criminal activity. An agency would also be able to limit the number of hours it devotes to responding to public records requests, if the agency makes certain documents publicly available and meets other conditions.

HB 1203: Exempting Personal Information Relating to Children
This bill would add a new exemption to the Public Records Act for personal information contained in any file maintained by the Department of Early Learning for a child enrolled in a licensed child care.

SHB 1418/HB 1763: Hours of Availability for Smaller Local Agencies
No action was taken on HB 1763. However, SHB 1418 would allow public agencies that do not maintain office hours for a minimum of 30 hours per week to post directions about how to make public records requests. This bill would also establish the date of receipt of a public records request as the date of such smaller agency’s next regularly scheduled meeting and requires the agency to respond to a request at the next regularly scheduled meeting.

SB 5171/ HB 1299/ HB 1298: Sunshine Committee Recommendations
No action was taken on HB 1299. However, SB 5171 and HB 1298 would add language to the Public Records Act clarifying the exemption for sexual assault victim information and exempting information contained in a local or regionally maintained gang database. SB 5171 also repeals the exemption for data on closed medical malpractice claims that may reveal the identity of a claimant, health care provider, health care facility, insuring entity, or self-insurer.

SB 5169: More Sunshine Committee Recommendations

This bill would implement certain recommendations of the Sunshine Committee including clarifications on the personal information exemption and public access to applications for some executive positions.

The following bills failed to make the cutoff and are considered “dead.” However, a bill may be resurrected if it finds its way onto another bill with a broad enough title (although unlikely).

HB 1197: Public Comment on Proposed Action
This bill would have required the governing body of a public agency to allow for public comment on any proposed action.

HB 1714: Recordings of Executive Sessions
This bill would have authorized governing bodies to record closed executive session meetings and exempted the recordings from disclosure under the Public Records Act. A court would be authorized, upon finding that a public agency intentionally violated the Open Public Meetings Act, to order recording of closed executive sessions for two years.

HB 1019: Identification of Public Records Requestors
This bill would have amended the Public Records Act to make records available for inspection and copying only to an identified person.

SB 5436/HB 1449: Specific Prosecution and Defense Documents
These bills would have provided an exemption to the Public Records Act for victim impact statements and other documents and materials provided by defendants or their attorneys during communications regarding plea agreements and sentencing recommendations.

SB 5170/HB 1297: More Sunshine Committee Recommendations
These bills would have clarified what information resulting from background checks of a guardian ad litem may and may not be disclosed to the parties in a parent-child termination action.

Production on a "Partial or Installment Basis" Also Means Just One Production

Lee Marchisio — Thu, 14 Feb 2013 13:22:15 -0800

Does a single production constitute production on an installment basis and trigger the PRA’s statute of limitations? Divisions I and II of the Washington Court of Appeals disagree.

In Bartz v. Department of Corrections, Division II of the Court of Appeals held that the PRA’s one-year statute of limitations runs even if the agency delivers only one production. In other words, a single production also means “the last production… on a partial or installment basis.” A plain reading of the statute might suggest otherwise. “Actions under this section must be filed within one year of the agency’s claim of exemption or the last production of a record on a partial or installment basis.” RCW 42.56.550(6).

Division II reasoned that a literal reading would lead to an absurd result, namely: “a more lenient statute of limitations for one category of PRA requests” after the Legislature shortened the statute from five years to one in 2005.

Yet, Division I concluded just that. In Tobin v. Worden, 156 Wn. App. 507 (2010), Division I held that the one-year statute does not apply unless the agency claims an exemption or produces records on installment. There, the agency did not claim an exemption and produced only a single document. Because a single production could not be an installment, Division I concluded that the statute did not apply.

Pace of PRA Legislation Mirrors PRA Requests

Lee Marchisio — Fri, 01 Feb 2013 09:43:34 -0800

As the Legislature hits full stride, open government initiatives and reforms continue to make headlines and receive editorial ink.

The Tacoma News Tribune reports that newly sworn-in Attorney General Bob Ferguson wants to reinstate a full time open-government ombudsman in the Attorney General’s Office. The Tribune also notes his support for HB 1198, requiring training for public officials and employees on public records and open meetings.

Citing a potential Gold Bar bankruptcy stemming from public records act requests and lawsuits, public officials lobbied for HB 1128, which allows an agency to seek an injunction against requesters who seek to harass or intimidate the agency or its employees, the Everett Herald reports. The bill also allows agencies to limit employee hours spent compiling responses to PRA requests if those agencies provide several types of records online.

The Olympian offers a different perspective on HB1128. Citing the continuing “assault” on the Public Records Act, the Olympian’s editorial board finds the attempted tradeoff between agency efficiency and openness “unsatisfactory.”

Citing the Public Disclosure Commission’s role as election watchdog, the Walla Walla Union-Bulletin editorial board offered its support to Rep. Jim Moeller’s effort bolster PDC funding. HB 1005 would require annual fees from political committees, politicians and lobbyists who file with the PDC. Proponents expect about $600,000 a year in additional revenue for the agency.

Washington's Constitution Guarantees Public Access to Court Documents When Relevant to a Motion Actually Decided

Lee Marchisio — Fri, 11 Jan 2013 15:09:07 -0800

In Bennett v. Smith Bunday, the Washington Supreme Court rules that article I, section 10 of the Washington Constitution requires that only material relevant to a decision actually made by a court is presumptively public. In the absence of a court decision, records do not become part of the administration of justice and may remain sealed for good cause under a stipulated protective order.

Stemming from a marriage dissolution, Rondi Bennett and her father, Gerald Horrobin, sued the accounting firm Smith Bunday Berman Britton, alleging that the firm aided Rondi’s husband in embezzling and hiding money from jointly owned businesses. As part of discovery, Smith Bunday provided confidential nonparty tax records under a stipulated protective order, and the documents were marked “confidential.”

Although the case settled, a response filed in the court by Rondi and Gerald contained or made reference to “confidential” documents in violation of the stipulated protective order, apparently by accident. The parties agreed that Rondi and Gerald would refile redacted and sealed versions. However, Rondi and Gerald’s expert witness moved to intervene, asserted his right as a member of the public to open access to court records, and opposed the refilling because “everything was about to go underground.”

Under article I, section 10 of the Washington Constitution, court records that become part of the administration of justice are presumptively public and may be sealed from the public only upon a showing of some compelling need for secrecy. However, the public does not have an interest in documents when the court does not actually make a decision or when the documents are not relevant to the merits of a motion before the court.

Here, the “confidential” documents filed with the court were not part of the administration of justice because the parties settled prior to court disposition. The trial court had no occasion to use the information as part of its decision making process. As the Court further noted, “The supporting material cannot be relevant to a nonexistent decision.” Therefore, the “confidential” documents were not presumptively public under article I, section 10.

Arkansas FOIA: Soliciting Individual Board Approval Constitutes a Meeting, Providing Background Information Does Not

Lee Marchisio — Tue, 08 Jan 2013 13:26:31 -0800

In contrast to Washington law, the open-meetings provision of the Arkansas Freedom of Information Act (FOIA) does not define “meetings” that are subject to the Act’s requirements. Here, the Arkansas Supreme Court concludes that submitting a draft ordinance and a memorandum in support of that ordinance does not constitute a meeting subject to the FOIA’s requirements.

In McCutchen v. City of Fort Smith, City Administrator Kelly circulated a draft ordinance expanding his hiring-firing authority, a memorandum supporting the ordinance, and other documents to five of seven members of the Fort Smith Board of Directors in advance of a Board study session. Plaintiff McCutchen sued the City, alleging that Kelly violated the open-meetings provision of the FOIA by engaging in a series of private one-on-one meetings with Board members.

Although some Board members expressed support (and others opposition) to the proposed ordinance, the Arkansas Supreme Court held that Kelly did not violate the FOIA because he did not solicit specific responses from Board members. Moreover, McCutchen failed to produce evidence that the proposed ordinance was discussed or debated prior to the study session or that Board members exchanged any correspondence about the memorandum.

The Court distinguished the prior case Harris v. City of Fort Smith, where a city administrator violated the FOIA by holding one-on-one meetings with Board members in order to obtain approval to acquire property at auction. The administrator sought secret approval, and later ratification by Board resolution, in order to avoid making public the city’s maximum bid prior to the auction. There, the administrator violated the FOIA because the individual contacts to seek Board approval constituted an informal meeting subject to the FOIA’s open-meetings provision. City Administrator Kelly did not seek similar pre-approval, here.

Gold Bar Meets the Gold Standard of Records Request Response; Still Costs City A Pretty Penny

Mike Schechter — Wed, 14 Nov 2012 11:31:37 -0800

By 2009, Susan Forbes “and other persons aligned with her” had submitted 82 record requests for various City of Gold Bar public records. Many of those emails were stored on the personal email devices of the mayor, city council members, and other city staff. For over a year, the City corresponded with Ms. Forbes, fulfilling her “purposeful[ly] broad” requests through installments, but also extending its estimated times for response on several occasions. “Unsatisfied” with the delay and the absence of a privilege log outlining withheld documents, Ms. Forbes sued the City claiming the delays were not “reasonable.”

The Washington Court of Appeals, Division 1, provided some vindication for the City, if not relief, upholding a trial court’s summary judgment rejecting Ms. Forbes’ Public Records Act lawsuit. As the Court reiterated, the PRA allows a public agency to respond to a request for public records by providing a reasonable timeframe for response. The agency may fulfill requests in installments as additional requests are assembled to complete broad requests. The superior court may, however, require the agency to show that the estimate was “reasonable” under RCW 42.56.550. By analogy to FOIA and PRA case law on the reasonableness of searches, the Court found that the extensive nature of the requests, resulting in disclosure of 28,290 documents, made delays in production reasonable.

During litigation, Ms. Forbes also requested that the trial court review in camera personal emails that were not produced. The lower court declined because Ms. Forbes “did not have any clear articulation as to why such a review would be appropriate.” Division I affirmed and held that the City’s “clear and consistent record” of adequate searches in reasonable times did not merit in camera review of records not produced. Importantly, the personal emails at issue did not contain city business. The Court distinguished Mechling v. City of Monroe, where personal emails were not exempt because they contained information relating to the conduct of government. Here, no emails containing city business were withheld. Furthermore, because the personal emails were merely non-responsive, they were not withheld, and the City was not required to produce a privilege log.

The cost of responding to the voluminous requests and the related litigation has pushed the City of 2100 people to the brink of bankruptcy. One of the largest expenses (and reasons for delay) was the need to search city officials’ personal electronics and home computers, including sorting personal emails from City business. Better document management practices may not have eliminated Ms. Forbes’ issues, but it could have decreased Gold Bar’s costs.

Metadata: You [Only] Get What You Ask For

Lee Marchisio — Tue, 13 Nov 2012 16:18:14 -0800

In an unpublished opinion, Division II affirmed a trial court’s grant of summary judgment against George Nervik, a 45-time Public Records Act requestor of Department of Licensing emails and attachments. The Court held that some of Mr. Nervik’s claims were time-barred by the PRA’s one-year statute of limitations and that several of his other claims were not properly preserved for appeal. However, the bulk of the opinion is devoted to Mr. Nervik’s purported request for email metadata.

Metadata associated with a public record is subject to disclosure under the PRA. But, a government agency is not required to provide metadata unless the metadata is specifically requested. Requesting emails or records in electronic format does not automatically lead to a request for metadata. Moreover, agencies have discretion in formatting records and need not provide records in electronic format. Here, Mr. Nervik requested that emails “should be in Outlook .pst format only together with all attachments....” Although .pst files presumably contain metadata, the Court held that this “mere format request” was not a specific request for metadata. In other words, requesting records in a format that contains metadata is not a request for that metadata. The Court ruled that the Department properly produced some records in hard copy for redaction and others in electronic format without metadata. Therefore, the Department was entitled to summary judgment on Mr. Nervik’s claim that it failed to disclose public records by not providing metadata.

Washington State Settles Public Records Claim for $65K

Mike Schechter — Tue, 23 Oct 2012 11:29:01 -0800

Another day, another dollar (actually 65,000 of them) paid out under the Public Records Act. The Washington Attorney General's Office and the Department of Corrections split the bill to settle a claim by the Washington Coalition for Open Government. WCOG alleged that the AG's Office had helped corrections officers sue to stop disclosure of records requested by a prisoner. This case had its origins with the same arsonist, Allan Parmelee, whose frequent records requests prompted the State Legislature to allow injunctions against harassing and abusive requests.

Public Records Lawsuit Frequent Flier Sent Packing

Mike Schechter — Thu, 04 Oct 2012 09:33:48 -0800

Arthur West, well known to those who follow open government issues in Washington State, had another of his lawsuits rebuffed by the Court of Appeals. In an unpublished decision, Division II rejected his Public Records Act and Open Public Meeting Act claims against the Washington Public Ports Association. The Court also declined to decide whether or not the Association is a public agency for purposes of the Public Records Act. While this case does not add much substantively to Washington's open government jurisprudence, it does serve as a reminder that detailed facts are a plaintiff's strongest ally in open government cases. The Court of Appeals was unwilling to let the OPMA or case go forward because Mr. West's allegations showed him to be a concerned citizen, but did not identify a specific injury. Similarly, Mr. West did not document a specific Public Records Act issue, so the Court of Appeals allowed the trial court's summary judgment in favor of the Ports Association to stand. Contrast this scenario to many recent Washington Public Records Act cases where the appellate courts have been quite harsh with public agencies that fail to meet their duty to provide access to citizens.

Court Agrees -- A Special Meeting is Not a Regular Meeting

Steven Gillespie — Thu, 13 Sep 2012 14:35:18 -0800

In an unpublished opinion, Center for Justice v. Arlington School District, No. 627263-1-I (Sep. 4, 2012), a Washington Court of Appeals affirmed a trial court’s conclusion that a school district’s “special meetings” were not “regular meetings” because they did not occur in accordance with a schedule declared by statute or rule. The school district regularly held bi-monthly “business meetings,” which were properly noticed as “regular meetings” under the OPMA. It often held what it called “study sessions” just prior to the regularly scheduled business meetings, following the OPMA notice requirements for “special meetings.” The Center for Justice (CFJ) argued that, because of their frequency, the study sessions should have been noticed as regular meetings. Noting that the OPMA did not define “regular meetings” for agencies other than those of the state, the court interpreted the statute as anticipating two types of meetings: those with dates fixed by rule or law (regular meetings), and all others (special and emergency meetings). Because the dates of the study sessions were not fixed by rule or law, they were not regular meetings and the District’s use of the “special meeting” notice provisions was proper.

The District had conceded violations of the OPMA relating to 21 executive sessions it had commenced without first opening a meeting. The trial court granted judgment to CFJ and awarded its attorney fees, reduced by a “degree of success” it calculated by dividing 21 sessions by 144 total alleged violations, or a 14.6% success rate. The appellate court concluded that because CFJ had alleged multiple violations for each session, the trial court had committed an arithmetic error—essentially dividing the number of rotten apples by the total number of allegedly rotten apple seeds—to produce a meaningless “percentage.” The court remanded for a re-calculation of the fee award.

The appellate court also awarded attorney fees to CFJ on appeal for establishing that the trial court had erred in its fee calculation. Although the District prevailed on the remainder of CFJ’s claims, because CFJ’s appeal was not frivolous, the District received no fee award.

PRA Inquiries into Washington State's "Shadow Governments"

Steven Gillespie — Thu, 13 Sep 2012 09:20:49 -0800

Arthur West continues his efforts to provide Washington’s appellate courts with the opportunity to define the scope and breadth of the Public Records Act. Rather than keep all the fun for itself, the Supreme Court graciously shared the opportunity to decide Mr. West’s latest appeal with Division II, transferring Mr. West’s request for direct review to the lower court. Division II affirmed the trial court in an unpublished opinion, West v. Gregoire, No. 42779-6-II (Sep. 11, 2012).

Apparently interested in reviewing documents relating to the Washington State Association of Counties, Mr. West submitted a memo to the Governor with the title “RE: ATTENDANCE AT SECRET SHADOW GOVERNMENT EVEN, AKA (WSAC 2009 ANNUAL CONFERENCE).” (Emphasis in Original). The Governor’s office did not immediately recognize that the memo contained a request for public records, an error Mr. West pointed out two weeks after submitting the memo. The Governor’s office offered to provide an estimate of response time within two days, but Mr. West stated that he had a litigation deadline six days away. The Governor’s office emailed him 57 pages of responsive documents the next day, then provided an additional 299 pages of documents two weeks later.

The Governor’s office withheld, under a claim of executive privilege, a document authored by one of the Governor’s Executive Policy Advisors. Mr. West sued under the PRA. After an in-camera review, the trial court concluded that the document contained no advice to the Governor and was thus subject to disclosure regardless of whether executive privilege exists in Washington. The Governor’s office disclosed the document that day.

The trial court awarded Mr. West $25/day in statutory penalties, excluding 22 days which the trial court concluded was a reasonable period for the Governor’s office to respond. West petitioned the Supreme Court for direct review of the penalty, and the Governor’s office cross-appealed. The Supreme Court transferred the case to Division II, which affirmed on all points. The court concluded that the statutory language providing that the prevailing requester is entitled to a statutory penalty “for each day that he or she was denied the right to inspect or copy said public record” necessarily included a reasonable time period for the government to respond to a request. That is, the government does not “deny” the right to inspect a record during the time reasonably necessary to gather responsive documents.

Both parties appealed the award of a $25/day penalty. Division 2 concluded that under the list of mitigating and aggravating factors contained in the Yousoufian V case, the amount was not "manifestly unreasonable" and affirmed.

Public Disclosure Commission Provides a Resource for Campaign Finance Disclosure

Jennifer Peet — Thu, 23 Aug 2012 07:38:41 -0800

Citizens are demanding an increasingly open government, and campaign finance databases are helping states to provide a more convenient level of access. While the public once needed to visit elections offices in person to peruse campaign finance disclosures, now it can happen with a keystroke.

In Washington State, the Public Disclosure Commission is leading the effort to increase transparency in campaign finance disclosure, and the Commission’s website is the vehicle for disclosing that information to the public.

The commission obtains campaign finance reports from candidates and political action committees, populates the database, and posts the database on its website. Visitors to the site can learn more about money entering campaigns and how it is spent, and they can gather information on candidates, political action committees, individual donors, and lobbyists. The site also allows visitors to link directly to the actual submitted reports. You can find the database here: www.pdc.wa.gov/MvcQuerySystem

Beer for the People: Best Public Records Request Ever!

Mike Schechter — Wed, 22 Aug 2012 08:16:04 -0800

President Obama's homebrew recipe could be in the public domain soon if a FOIA request filed by an inquisitive citizen turns up any responsive documents. If the recipe has been written down, backyard brewmasters could be churning out their own batches of White House Honey Ale. If the recipe gets released, a toast to sunshine laws would definitely be in order!

California Legislature to Pass Searchable Records Mandate?

Mike Schechter — Wed, 15 Aug 2012 09:58:44 -0800

California may become the first state requiring government agencies to deliver electronically searchable materials in response to public records requests, according to the Center for Investigative Reporting. The current draft of the bill mandates disclosures in "open format" whenever available, meaning "the data or the text in the document is machine readable and can be searched, indexed, organized, categorized, and is otherwise automatically processable."

The State Senate passed SB 1002 by a 35-0 vote back in May; the Assembly Appropriations Committee takes up the bill tomorrow.

Records Response Costs Add Up For Port Orchard

Mike Schechter — Mon, 13 Aug 2012 14:43:09 -0800

375 staff hours at a cost of nearly $15,000 is the non-billable bill for the City of Port Orchard, Washington to fulfill a public records request according to an article in the Kitsap Sun. Unlike federal agencies and governments in other states, Washington state government agencies can only charge a records requester for the cost of copies. Search time is simply a cost of government in Washington, although more local governments are tracking search expenses and other public records statistics to educate the public and the State Legislature that transparency is not free.

Were Washington's New Voting Districts Illegally Created Behind Closed Doors?

Mike Schechter — Tue, 31 Jul 2012 14:51:38 -0800

The Tacoma News Tribune recently raised questions about whether the Washington State Redistricting Commission violated the state's Open Public Meetings Act by carrying out its work behind closed doors and through "shuttle diplomacy" amongst its partisan members. A follow-up editorial today quoted one of the Commission's members about the unworkability of redistricting being carried out in public view: "If you wanted that discussion in public, we would never have gotten done. The nature of these types of communications don’t lend themselves to an audience.”

Washington Legislature Hears Testimony on Public Records Abuses

Mike Schechter — Fri, 20 Jul 2012 13:59:38 -0800

The Association of Washington Cities recently reported on city officials testifying before the House Local Government Committee about spiteful and abusive public records requests. In the most extreme example, the Town of Gold Bar may face disincorporate if it cannot find a way to pay for ongoing public records litigation against "a few harassing requesters. The City of Pasco is dealing with a request for 34 years of records from a citizen who wasn't satisfied with a land use decision. Given the continuing drain on local government resources, perhaps the 2013 legislative session will provide some relief from the most wasteful of requests.