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This page provides summaries of significant state appellate court decisions concerning the Public Records Act (PRA), which have been decided since March 1996 and that affect Washington local government agencies.
It is part of MRSC’s series on the Public Records Act.
The PRA prohibits public disclosure of a public employee’s month and year of birth, unless the requestor is a member of the news media.
WEA v. DRS (3/28/2022) – Involved two PRA requests submitted by the Freedom Foundation for the full names and full dates of birth for various public employees. The state agencies receiving the requests notified the affected labor unions; the labor unions secured an injunction prohibiting release. On appeal, the unions argued that two provisions in the PRA exempted the information from public disclosure:
The court first held that RCW 42.56.250(8), which was adopted after the PRA request had been submitted, did apply retroactively to this request as the “triggering event” in this situation is the agency’s release of requested records, not the submittal of the PRA request. While a member of the news media can nonetheless receive the records, the question of whether the Freedom Foundation is a member of the news media was remanded to the trial court for a determination.
The court also held that the RCW 42.56.230(3) does not exempt public employee birthdates from disclosure.
The names of university students found by a university to be responsible for a crime of violence or nonforcible sex offense are subject to disclosure under the PRA.
Baxter v. Western Washington University (12/27/2021) – Three journalists made a public records request to Western Washington University (University) for the final results of disciplinary proceedings, including the student’s name, in which the university found that the student committed a crime of violence or nonforcible sex offense in the last five years. The University initially provided a table of the offenses and the resulting discipline imposed, but it redacted the names of the students pursuant to RCW 42.56.230(1) (personal information in any files maintained for students in public schools). The journalists sued under the PRA seeking disclosure of the names, and the University subsequently determined the names of the students were not exempt from disclosure. It provided third-party notice to the students, and seven of them sought an injunction barring disclosure of their names.
The Washington Court of Appeals ruled that the RCW 42.56.230(1) exemption only contemplates schools below the college and university level. It does not apply to university students. In addition, the Family Educational Rights and Privacy Act of 1974 (FERPA) exempts disclosure of student education records and personally identifiable information and can be an exemption in the PRA context. But the FERPA provides that the final results of a disciplinary proceeding against a student for a crime of violence or nonforcible sex offense is disclosable if the student was found to have committed a violation of the institution’s rules and policies. The Court of Appeals therefore affirmed the trial court order requiring disclosure of the unredacted disciplinary results.
Copy of public records request attached to a legal complaint served on the agency was a request for purposes of the PRA. Trial Court fine award of $2,607,940 against agency was an abuse of discretion.
O’Dea v. City of Tacoma (8/24/2021) – An attorney representing a city employee on administrative leave mailed two public records requests to the city in March 2017. For reasons that are unclear, the city’s public records officer never received the requests and the city did not respond. The city terminated the employee in June 2017. In November 2017, the former-employee sued the city alleging PRA violations for failing to respond to the March 2017 requests. Copies of the public records requests were attached as exhibits to the legal complaint.
The city did not initially treat the requests attached as exhibits to the complaint as public records requests. It did not begin responding to those requests until approximately nine months after the complaint was served on the city. The trial court ruled that the requests attached to the complaint were public records requests and should have been processed as such beginning in November 2017. It awarded PRA penalties against the city in the amount of $2,607,940. In so doing, it imposed $10 per-day penalties per record from the time the city received the complaint to when it started responding nine months later.
The Court of Appeals affirmed the trial court’s ruling that the city should have processed the public records requests when it received them attached to the complaint in November 2017. Although the requests were exhibits, they each were labeled as a “public records act request” and addressed to the city’s public records officer. Therefore, the requests put the city on “fair notice” that it had received a request for public records.
The Court of Appeals reversed the trial court with respect to the amount of the public records penalties. It noted that there was no finding of bad faith on the part of the city. It also found the penalty amount was unprecedented compared with other PRA penalty cases on both an overall and a per-capita basis. It therefore ruled that the penalty amount was “manifestly unreasonable” and remanded for recalculation.
The one-year statute of limitations for claims under the PRA begins to run on the day after an agency’s final action with respect to a public records request.
Bogen v. City of Bremerton (8/10/2021) – An agency, after providing records in installments in response to a public records request, notified the requestor that it considered the request to be fulfilled and closed. The notice occurred on January 28, 2019. On January 28, 2020, the requestor sued the agency, claiming it had violated the PRA with respect to the records request. The agency claimed under the PRA’s one-year statute of limitations, the lawsuit had to be brought no later than January 27, 2020. The trial court agreed and dismissed the requestor’s lawsuit.
RCW 42.56.550(6) provides that PRA actions “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.” The Court of Appeals ruled that the statute of limitations began to run on the day after the agency notified the requestor that it considered the request to be fulfilled. In so doing, the court relied on RCW 1.12.040, which is a general provision that addresses how days should be counted for the purpose of state law. It provides that the time within which an act is to be done is computed by excluding the first day and including the last (unless the last day is a holiday, Saturday or Sunday, in which case it is also excluded). Based on that, the statute of limitations started to run on January 29, 2019, which means the lawsuit (filed on January 28, 2020) was timely.
Whether a person operating a YouTube channel in their own name is a member of the “new media” for purposes of RCW 42.56.250(8), which allows the new media access to records that are otherwise exempt – photographs and records showing the month and date of birth of public employees.
Green v. Pierce County (5/27/2021) – Brian Green submitted a public records requests for photos, birth date, rank, position, badge number, date hired and ID badge for all detention center, jail personnel and deputies on duty on a particular day. The county responded by providing 11 pages of records, but no photographs or dates of birth because they were exempt under RCW 42.56.250(8). Green objected to the exemption, claiming he was entitled to the records as “news media” since he operated a YouTube channel called Libertys Champion. The county relied on the statutory definition of news media in the new media shield law, RCW 5.68.010(5), and denied access to the records. The court agreed with the county, and found that Libertys Media did not qualify as news media because it did not fit into any of the specific categories of traditional news media outlets and because Libertys Champion did not have a legal identity separate from Green. The court further found that Green, individually, also was not a news media entity under RCW 5.68.010(5).
Whether Seattle Children’s Hospital records related to a mold outbreak in the hospital that were shared with the King County Department of Public Health and the State Department of Health were exempt under the PRA, the HCIA or HIPAA.
Seattle Children’s Hospital v. King County (ordered to be published 3/22/2021) – King County Department of Public Health (KCPH) and the State Department of Health (DOH) investigated patient infections related to aspergillus mold at Seattle Children’s Hospital (SCH). At issue in the case was whether those records were exempt under the PRA, HIPAA, or the HCIA.
The Court of Appeals held that the Quality Improvement (QI) exemption in RCW 42.56.360(1)(c) only applies to records created specifically for and maintained by the QI committee. The records at issue here were created as part of an independent public health investigation by KCPH and DOC, and, even though the communications exchanged between SCH and the agencies may have been useful to SCH for its QI purposes, it was not information generated specifically for the QI committee.
The court further held the records were not exempt under RCW 42.56.360(1)(c), as that exemption protects records created by a hospital for reporting of health-care associated infections in cases of certain bloodstream infections and surgical site infections – and those were not the subject of these records.
The court first acknowledged that KCPH is a covered entity subject to HIPAA, although DOH is only subject to the HCIA. Under both laws, disclosure of medical records is allowed if the patient is deidentified. However, HIPAA establishes more robust, specific standard for deidentification, whereas HCIA does not. The court concluded that DOH has the discretion to apply the specific and more robust HIPAA protections when deidentifying health care information from records it intends to release for public inspection, but that this is not mandatory. The court then remanded to the trial court the issue of whether the records comply with patient privacy requirements in HIPAA and HCIA.
A private company that contracts with the state to provide non-emergency medical transportation is not the functional equivalent of a government agency and, therefore, is not subject to the PRA.
McKee v. Paratransit (6/30/2020) – The State of Washington contracts with Paratransit to fulfill its obligation under the federal Medicaid program to provide non-emergency medical transportation. Paratransit is a private corporation whose operations are funded through its contracts with the State; it operates as a broker for the medical transportation by arranging for transportation with subcontractors or by providing the client requesting transportation with reimbursement. Paratransit invoices the State for services provided and for some administrative costs. In its contract with the State, Paratransit is identified as an independent contractor and is required to comply with Chapter 42.52 RCW, Ethics in Public Service. McKee utilized Paratransit services and submitted a request to Paratransit for certain records involving him. Paratransit provided the records, but informed McKee it was not subject to the PRA. McKee filed a complaint alleging Paratransit violated the PRA.
The trial court dismissed the case, concluding that Paratransit is not subject to the PRA. The Court of Appeals agreed. The court first found that the requirement for Paratransit to comply with chapter 42.52 RCW does not create a duty to comply with the PRA. The court next held that Paratransit is not the functional equivalent of a government agency because it does not meet any of the Telford factors: (1) it does not perform a core government function; (2) it is funded by the State through a fee-for-service model and reimbursement for costs model, which weighs against functional equivalency; (3) the State is not extensively involved with Paratransit’s day-to-day activities; and (4) Paratransit was not created by the government.
City properly exempted portions of performance evaluations of city directors under RCW 42.56.230.
Church of the Divine Earth v. Tacoma (6/23/2020) – The Church of the Divine Earth submitted a records request to the city of Tacoma for five years of performance evaluations for the directors of the Department of Planning and Development Services and the Department of Public Works. The city provided the records, but redacted: (1) ratings and specific examples under the performance expectations section; (2) goals listed by employees and steps toward that goal under the goal development plan section; (3) employee and supervisor comments; and (4) employee’s overall performance rating. The privilege log cited RCW 42.56.230, RCW 42.56.050 and Dawson v. Daly to support the redactions and provided a reason for the redactions as “records, consisting of performance evaluations which do not discuss specific instances of misconduct.”
The Church filed a PRA complaint, alleging wrongful redaction and inadequate explanation; the trial court granted the city’s motion for summary judgment dismissing the case. The Court of Appeals cited Dawson v. Daly in its conclusion that, while performance evaluations are not a specifically enumerated exemption in the PRA, the evaluations can be exempt under RCW 42.56.230 as “personal information in files maintained for employees…to the extent that disclosure would violate their right to privacy.” In supporting its conclusion, the court first affirmed that performance evaluations are “personal information,” citing the Supreme Court’s conclusion in Dawson that “employee evaluations qualify as personal information that bears on the competence of the subject employees.” The court next turned to whether employees had a right to privacy in the evaluations because disclosure would be highly offensive and not of legitimate concern to the public. Here, due to the nature of the request for evaluations of specific employees, the city was unable to remove the identifying information from the performance evaluations to protect employee privacy. Therefore, disclosure of the evaluations would be highly offensive to a reasonable person. The court further held that, in balancing the public’s interest in disclosure against the public’s interest in efficient administration of government, no legitimate public concern justifies disclosure.
Finally, the court held the city’s brief explanation was sufficient. The city’s explanation cited the employee personal information statute (RCW 42.56.230), the right to privacy statute (RCW 42.56.060) and a pinpoint citation to Dawson, where the Supreme Court explained why performance evaluations are typically exempt. This provided the Church with sufficient explanatory information in order for the Church to determine whether the exemption was properly invoked.
PRA statute of limitations did not restart upon production of later discovered records.
Dotson v. Pierce County (6/2/2020) – Kimberly Dotson submitted a records request to the county on May 19, 2016, which the county responded to in three separate installments, all provided on June 23. On June 28, the county received confirmation that the records had been retrieved by Dotson and, on June 29, the county sent a letter stating, “As you have received responsive records, I am closing your request.” The county later discovered additional records responsive to the May 19, 2016 request and provided those records on October 26, 2016 and November 7, 2016. Dotson filed a complaint on October 25, 2017, alleging the county violated the PRA.
The primary issue in the case was whether the statute of limitations barred the PRA claim. The court held the October 25, 2017 claim was time barred since the June 29, 2016 notification comprised a final definitive response and started the one-year statute of limitations for submitting a PRA claim. The court also rejected application of the discovery rule to PRA actions since the PRA statute of limitations “contains triggering events that enable a requester to know that a cause of action has accrued, and the legislature enacted no discovery rule exception.”
PRA violations found because the city improperly applied the specific intelligence information exemption in RCW 42.56.240(1) and the city’s interpretation of a records request was too narrow, resulting in an inadequate search.
West v City of Tacoma (1/28/2020) – In 2013, the city purchased surveillance technology (known as “Stingray”). As a prerequisite to purchasing this technology, the city entered into a nondisclosure agreement with the FBI which prevented the city from disclosing the existence of the technology to the public and required consultation with the FBI prior to disclosing information about the technology. Plaintiff West requested records related to the technology. The city provided records, but (at the request of the FBI) redacted information about the make, model and prices of the equipment under the specific intelligence information exemption in RCW 42.56.240(1). The requestor appealed the applicability of the exemption and claimed the city performed an inadequate search.
The court narrowly defined “intelligence information” as “gathering or distributing secret information, information about an enemy, or conclusions drawn from such information” and defined “specific” as “disclosing particular methods or procedures or gathering or analyzing intelligence information.” The court held that the make, model, and price failed to meet this definition and, therefore, the city’s redactions were improper. Although the FBI submitted an affidavit explaining why the information should be exempt, the court was not persuaded.
The court also held the city’s search was inadequate. West requested, “Any records concerning any agreements, policies, procedures, or understandings related to the acquisition, use or operation of stingray technology.” The city didn’t conduct an email search because it interpreted the request as seeking documents specifically related to the acquisition, use and operation of the technology, which it provided. The court found this search inadequate as the city had email communications about the technology, including responses to a reporter’s questions about the technology and what the nondisclosure agreement allowed to be released. The court deemed these email communications responsive to West’s request.
A jurisdiction cannot adopt a rule requiring administrative review of a public records request denial before a person can file a lawsuit to obtain a record.
Kilduff v. San Juan County (12/12/2019) – Kilduff made a public records request to the county. He received one installment and was told additional records would be provided. Kilduff had a discussion with the prosecuting attorney (and there is disagreement as to what was agreed to) and thereafter Kilduff was given redacted records, without an exemption log, and was told “This email response and attachment fulfills your public records request.” He was not told if there were other records that were not being provided. Kilduff sued, alleging that there had not been an adequate search and responsive records may have been withheld. The county denied the allegations and argued that Kilduff had not exhausted administrative remedies, as required by a county code section, before filing a lawsuit.The code provided that administrative remedies would not be considered exhausted “until the prosecuting attorney has made a written decision, or until the close of the second business day following receipt of the written request for [the prosecuting attorney’s] review of the action of the public records officer, whichever occurs first.” The trial court concluded that the county had not yet made a final decision and thus there was no final decision to review. That decision, as well as several others, was appealed to the Supreme Court.
On appeal, the Court held the county code provision invalid because the PRA does not authorize counties to require public records requesters to exhaust administrative remedies before filing suit. The PRA requires agencies to establish mechanisms for prompt review of denials and review “shall be deemed completed at the end of the second business day following the denial of inspection.” The county argued that the code provision allowed for prompt review and reinforced its willingness to do more if requested. The court noted that the requester must wait an indeterminate amount of time for responsive records and hope that the county has fully complied with his or her request. The Court rejected the county’s argument. The county argued that it had not given its final answer, but the Court rejected that, finding the county’s response that the request had completed its obligation was a final answer. The county contended that it had given its final answer and, if Kilduff wanted more, all he had to do was ask. But the PRA does not require an exhaustion of administrative remedies once a final answer has been given. While local rules and regulations are possible, they cannot undermine the requirements of the PRA. The PRA model rules do not require an administrative review before a lawsuit can be filed. The county’s code requirement for administrative exhaustion is invalid and the trial court’s action to dismiss Kilduff’s action was an error.
A state employee’s full name and date of birth are not exempted from disclosure, either by the Public Records Act or the state constitution.
Wash. Pub. Emps. Ass’n v. Wash. State Ctr. for Childhood Deafness & Hearing Loss (10/24/2019) – The Freedom Foundation made a public records request for the full names, associated birthdates, and work email addresses of employees from several state agencies. The state agencies determined that all of the requested records were subject to disclosure and would be released. However, several unions representing the state employees sought a permanent injunction to prevent the release of employee names, dates of birth and work email addresses. The request for a permanent injunction was denied. The unions appealed and the court of appeals granted a stay for the release and held that Article I, section 7 of the state constitution did not create a privacy interest against the disclosure of names and associated birthdates. The case was then appealed to the Supreme Court. The Supreme Court, in a split decision, reversed the court of appeals and authorized the release of the names and birth dates. The work email addresses had been released and were no longer at issue.
The Public Records Act (PRA) does not provide an exemption for the names and associated dates of birth of employees. The Court must construe the PRA exemptions narrowly. The only exemption for dates of birth is for the dependents of employees. See RCW 42.56.250(4). The unions also argued that RCW 42.56.230(3) exempts personal information maintained for public employees to the extent disclosure would violate their right to privacy. The Court noted that dates of birth are already disclosable in different situations, such as for voter rolls. The court recognized that there are concerns about misappropriation of birthdates, but that does not mean they are private and exempt. Even though there are concerns about identity theft, the court must uphold other policies (such as for public disclosure) when there is a conflict. As to constitutional privacy arguments, the Court has never recognized confidentiality or nondisclosure of personal information as a fundamental right. The Court will undertake a balancing test to determine if disclosure of personal information can be required when it serves a legitimate governmental interest. Birthdate information is already available, and it does not rise to the level of intimacy as does other information, such as medical information. The names and birthday dates of state employees are not highly offensive, and their disclosure does not violate Article I, section 7 of the state constitution.
Exemptions are applied at the time a public records request is made. If records are provided in installments, there is no requirement for the agency to provide records exempted at the time of the initial request even though they are no longer exempt at the time an installment is later provided.
Gipson v. Snohomish County (10/10/2019) – Gipson was subject to a work-related investigation. He requested all records in which his name was referenced. Some of the records involved an on-going discrimination investigation. Due to the number of records requested, the county supplied records to Gibson in installments. Some records were redacted and those related to the on-going investigation were noted as being exempt. Prior to the county providing the final installment of records, the investigation had been completed. As Gibson had not been given the investigation records, he filed suit, arguing that once the investigation was complete, the county was obligated to supply the previously exempt records. The superior court and court of appeals ruled in favor of the county, and Gibson appealed.
The Supreme Court affirmed the decision of the lower courts. The determination whether a record is exempt or not is made at the time of the record’s request. Where records are provided in installments, the county is not obligated to supply previously exempted records in a future installment even though the exemption no longer applies. There is no continuing obligation to furnish records once the exemption ends; if the requestor wishes the record, he or she should make a “refresher request.” The Court held:
An agency is not required to maintain constant vigilance of any exemptions it asserts when the request is first received, regardless of whether the records request requires a single installment or multiple installments to satisfactorily fulfill.
As to the penalty assessed by the trial court for noncompliance with Public Record Act’s requirements, the Supreme Court’s task is to determine whether the trial court abused its discretion in assessing the penalty.
Hoffman v. Kittitas County (9/26/2019) – Hoffman made a public records request for police reports, photos, and videos related to a named individual. The records officer found seven reports but no photos or videos. In fact, there were 97 photos and two videos. The records officer called Hoffman, asking for clarification; she was concerned that Hoffman had no connection to the reports. Hoffman agreed to accept the police report “face sheets.” The records officer provided those records (but no photos or videos) and an exemption log that incorrectly referenced exemption statutes. The records officer retired, and her successor reviewed Hoffman’s request and concluded that it may have been mishandled. Hoffman was again contacted, and he confirmed that he had received what was needed. Nevertheless, he wondered about other records that might apply. After indicating he could sue, Hoffman resubmitted the original request and the county supplied responsive records, including the photos and videos that previously were not provided. Hoffman did sue and the trial court, using conceded and stipulated facts, found that the county had violated the Public Records Act. The court considered aggravating and mitigating factors, and concluded that the county acted negligently but not in bad faith, and awarded a penalty of $15,498. Hoffman appealed, arguing that the court had improperly found that there was no bad faith and, because of that, the award of damages was too small. The court of appeals affirmed and upheld the penalty. Hoffman appealed to the Supreme Court.
The Supreme Court held that its task was to review the overall penalty under an abuse of discretion standard. The Court found no abuse of discretion. The PRA statute gives a court great discretion in determining the appropriate penalty to assess. The court’s review is limited to determining whether there has been an abuse of discretion. In making this determination, the court reviews aggravating and mitigating factors. The factors only provide guidance, they may not apply equally or at all in every case, and they are not an exclusive list of appropriate considerations. No one factor should control. The Supreme Court will not consider the lower court’s decision regarding whether there was bad faith since that would interfere with its review of whether there has been an abuse of discretion. The Supreme Court’s role is to review the trial court’s overall penalty assessment for abuse of discretion. Reviewing the various factors considered by the trial court in determining the penalty, the Court found there was no abuse of discretion. Mitigating factors were the county’s proper response and follow-up, its proper training and follow up, and the existence of a system to track and retrieve records. Aggravating factors were the lack of strict compliance, unreasonableness of the explanation for its noncompliance, and the county’s negligent noncompliance. Considering the factors, the Court found that the penalty was reasonable and not an abuse of discretion.
The “Scope of Employment” test for public records does not apply to agency systems and devices, but not all records on an agency server are public records just because they are on an agency’s server.
Service Employees International Union (SEIU) v. University of Washington (9/5/2019) – The Freedom Foundation sought records relating to union organizing of faculty members of the University of Washington. The records included emails relating to union organizing, as well as emails unrelated to university business. After a search, the university found numerous records and concluded that some were responsive to the request and not exempt from disclosure. It notified the involved union (SEIU) of its intent to release other records, allowing the union an opportunity to seek an injunction against the release of the records. The union did seek an injunction.
The trial court issued a temporary injunction after applying the “scope of employment” test (a communication on a private device of an employee may be subject to disclosure only if the job requires the communication, the employer directs it, or it furthers the employer’s interest). The court concluded that, regardless of where a particular record is created or stored, “whether an agency employee’s record is subject to disclosure hinges on whether the record was prepared, used, or retained within the scope of employment.” A second preliminary injunction was later issued, followed by a permanent injunction. The Freedom Foundation appealed, arguing that the “scope of employment” test applies only to records created or stored on an employee’s personal device and should not be extended to records on public agencies’ e-mail servers. The court of appeals affirmed, and the case was then appealed to the supreme court. The supreme court reversed.
To qualify as a “public record,” a record must satisfy three prongs: be a writing, contain information relating to the conduct of government or any proprietary function, and be prepared, owned, used or retained by a government agency. The court held that the “scope of employment” test, which had been used by the trial court, applies only to writings on personal devices. That test helps determine whether a record has been “prepared, owned, used, or retained” by an agency, the third prong used to determine if a writing is a public record. This case, however, involves the second prong, did the records stored on the university’s servers contain information “relating to the conduct of government or the performance of any governmental or proprietary function”? The trial court erred by using the scope of employment test.
Not all records on an agency server are public records just because they are on an agency’s server. “Mere retention on an agency server is not enough to bring an e-mail within the scope of the PRA.” Some of the records in question, such as those involving faculty organizing and the treatment of students and staff, did relate to government conduct and to the performance of a governmental function. They were not personal and would be subject to disclosure
The union, however, had also made statutory and constitutional arguments as to why the records should not be released. However, those arguments were not addressed by the trial court. Accordingly, the case was remanded back to the superior court for further review of the union’s other arguments.
State law does not establish the factors to consider in determining a reasonable time for providing records. Providing records to the requesting party can be delayed allowing an affected party to determine whether to seek an injunction against the records release.
Freedom Foundation v. DSHS (8/6/2019) – The Freedom Foundation (Foundation) requested certain records from the state Department of Social and Health Services (DSHS). DSHS submitted a schedule to the Foundation for providing the records. DSHS then gave third-party notice of Foundation’s request to several parties, including the Training Partnership (Partnership), which was an affected party in the requested records. Thereafter the Partnership made its own request for the same records the Foundation had requested. DSHS provided the Partnership notice that the records would be provided in installments by certain designated dates. DSHS provided the records to the Partnership before providing them to the Foundation and advised the Partnership it would need to seek an injunction by a specified date, if it chose to challenge the release of the records to the Foundation. The Foundation sued on several grounds, claiming DSHS’s conduct violated the PRA. The trial court dismissed the lawsuit.
On appeal, the court held that DSHS’s timeline (30 days) for providing the records was reasonable. Washington case law does not address the factors to consider in determining if an agency’s estimate of the additional time needed is reasonable. The court determined DSHS’s estimate was reasonable. The Foundation challenged DSHS’s action of producing the records first to the Partnership before it responded to the Foundation’s records request. The court found that DSHS did not unlawfully distinguish between the Foundation and the Partnership since the PRA allows an agency to delay production of records so a party affected by the request can obtain a court order to enjoin the release of the records. Third party notice to the Partnership, which was an affected party, allowed the Partnership the opportunity to review the records to determine whether it should seek an injunction.
Requestor need not begin litigation to obtain attorney fees and costs for unreasonable delay in the production of records.
Asotin County v. Eggleston, 7 Wn. App. 2d 143 (1/17/2019) – Eggleston made a public records request for copies of the attorney invoices related to the county’s defense of two lawsuits he had brought against the county. Although the county initially attempted to exempt the invoices in their entirety, it later sought assistance from the court to determine what information could be redacted. Eggleston objected, indicating that the county should not provide unredacted documents to the court for review and assistance in determining what could be redacted before providing proposed redactions. Ultimately the county provided proposed redactions to the court, which the court approved, concluding they were narrowly tailored to avoid improper disclosure. Eggleston asked the court for costs, fees and penalties for the delay in receiving the redacted records. The court denied Eggleston’s request and Eggleston appealed.
The court of appeals concluded that costs and fees can be awarded when the requirements of the Public Records Act are not followed; it is not required that a person bring a lawsuit to obtain the records to be a prevailing party. The court also found that Eggleston was the prevailing party on the issue of whether the records were entirely exempt, as the county had initially maintained, since it is clear that RCW 42.56.904 does not allow attorney invoices to be withheld in their entirety.
Polygraph results for a police officer indicating past instances of dishonesty are not exempt from disclosure.
Sheats v. City of East Wenatchee, 6 Wn. App. 2d 523 (12/11/2018) – East Wenatchee police officer Sheats sought employment with another agency. As part of the application process, Sheats took a polygraph test. The test results indicated past instances of dishonesty. Ultimately, those results were requested by the county prosecutor so he could provide exculpatory evidence in a criminal defendant’s trial where Sheats would be a prosecution witness. Although the city initially declined to supply the report, after the prosecuting attorney filed a motion to obtain a copy, the city furnished the report. Thereafter, a local newspaper also sought a copy of the report. The city advised Sheats of the newspaper’s request and Sheats sought an injunction to prevent the release of the report. The court granted a temporary restraining order preventing the release. After resolving some procedural issues, the court denied the request for an injunction and required release of a redacted report; Sheats appealed. On appeal, the court affirmed.
A person seeking to enjoin the dissemination of exempt records “has a heavy burden, which includes establishing that dissemination of the record clearly not to be in the public interest.” Since the redacted polygraph report at issue contained reference to past wrongdoing, the public has an interest in knowing whether the officer was law-abiding and an interest in viewing the report. The prosecuting attorney had a constitutional responsibility to disclose exculpatory evidence and impeachment evidence favorable to a criminal defendant. Sheats cited RCW 42.56.250(2) as exempting disclosure of applications and related materials for public employment. However, the exemption does not, in and of itself, support an injunction preventing the release of the record. The person seeking the injunction must show that “disclosure would clearly not be in the public interest and would substantially and irreparably damage any person or would substantially and irreparably damage vital government functions.” Sheats was not able to establish that the release of the record was clearly not in the public interest; the public has an interest in knowing if an officer is law-abiding. Sheat’s privacy rights were not violated since the record is a matter of public concern.
Phone conversation recordings of jail inmates and records relating to the recordings are exempt from disclosure.
Zabala v. Okanogan County, 3 Wn. App. 2d 156 (10/2/2018) – Zabala made five record requests related to recorded and/or monitored jail phone calls, as well as voicemail, email, audio, notes, reports, transcripts, arguments, motions, briefs, memos, letters, and any other record that were used in the prosecution of crimes by the prosecutor’s office. The records were not provided for several reasons, including that they were exempt from disclosure as recorded conversations from correctional facilities. Zabala sued and, upon motion of the prosecutor, the court dismissed. Zabala appealed and the court of appeals affirmed.
RCW 70.48.100(2) exempts records of persons confined in jail. The court limited the exemption to records prepared as a result of the inmate being in jail and noted that the statute does not limit the exemption to records only in the possession of the jail. The exemption extends to jail records despite that the jail forwarded the records to the prosecutor’s office. The exemption “does not disappear when an agency other than the jail creates the records concerning the inmate, the exemption further extends to records created by the Okanogan County prosecuting attorney concerning the jail inmate.” Other issues regarding the records request were resolved in the county’s favor by a portion of the opinion that was not recorded.
Court has broad discretion in determining penalty for Public Records Act violations and may consider penalty factors using substantiated facts.
Hoffman v. Kittitas County, 4 Wn. App. 2d 489 (7/24/2018) – Hoffman requested some records from the Sheriff’s Office, including photographs and video recordings. The records clerk, misunderstanding the law, contacted Hoffman and advised that since Hoffman wasn’t involved in some of the incidents, she could not provide those records. Based upon that misunderstanding, Hoffman agreed to accept just redacted face sheets of the reports. Another clerk overheard the record clerk’s conversation with Hoffman and questioned the decision to withhold certain records. The face sheets were delivered to Hoffman. Upon advice from her supervisors, the clerk contacted Hoffman, who indicated that he had received the records. Later the other clerk discovered information regarding Hoffman’s request and, upon advice of the supervisors, contacted Hoffman again. Hoffman was advised that he should have been given additional records. Hoffman filed a new request, renewed his initial request, and was provided the requested records. Hoffman sued the county, alleging the records had been withheld because of bad faith because the records’ clerk and a person included in the requested records were “drinking buddies.” The court, however, found that while the county had acted negligently, not in bad faith, it had provided appropriate supervision and its response was timely, although not adequate. Hoffman was awarded attorney fees and a penalty of 50 cents per day per document. Hoffman appealed and, on appeal, the court’s decision was upheld.
Courts have broad discretion to set appropriate penalties. The trial court’s decision will only be reversed if the wrong legal standard had been used, or it relied on unsupported facts, or adopted a view that no reasonable person would take. As long as a factual basis exists to support a trial court’s decision, the abuse of discretion standard is met and further scrutiny is unwarranted, regardless of how the trial court chooses to articulate its decision. Hoffman argued that the court had used the wrong legal standard in determining the penalty; it should have determined whether there was the presence or absence of bad faith. The court concluded that Hoffman had put too much emphasis on a finding of bad faith. The focus should be placed on aggravating and mitigating factors, only some of which address a violator’s level of culpability. Agency culpability is only one factor to be used in determining a penalty. Agency “good faith” is a relevant mitigating factor and an agency’s “negligent, reckless, wanton, bad faith, or intentional noncompliance with the PRA” is a relevant aggravating factor. A trial court’s choice of how to label agency noncompliance should not be the basis for affirming or reversing a penalty decision. Instead, it is sufficient for a trial court to recognize that culpability exists in matters of degree and that more culpable conduct merits a higher penalty than less culpable violations. The court held that the county had acted in a timely manner, both at the outset and in its follow up. The penalty was low, but reasonable, and Hoffman had not suffered any financial harm.
Court may consider jurisdiction’s size and financial ability in setting penalty for public records violation
Zink v. City of Mesa, 4 Wn. App. 112 (6/14/2018) – The Zinks sued the City of Mesa when the city failed to provide certain records that had been requested under the Public Records Act. After earlier appellate court review, the trial court awarded the Zinks penalties of $352,954 plus attorney fees and costs. Among the factors considered by the court in establishing the amount of penalty was size and financial ability of the city and the amount of penalty necessary to act as a deterrent against future violations. The Zinks appealed the award arguing, among other things, that a 2011 legislative change eliminating a floor per day penalties should not be applied retroactively and that the court did not have discretion to reduce the penalty based upon the jurisdiction’s size and limited resources. The city cross-appealed, arguing that the trial court abused its discretion by imposing a penalty that exceeded 100 percent of the city’s annual general fund unrestricted tax revenue and that insufficient evidence supported the trial court’s finding that a MRSC memo should have put the city on notice of the impropriety of some of its document redactions.
The court held that the 2011 amendment eliminating the $5 floor did apply retroactively. The trial court did not abuse its discretion by treating “deterrence” as the most important aggravating factor in determining its penalty. The court rejected the argument that the court should not impose a penalty that is proportionately higher than that imposed upon other jurisdictions for similar violations. The trial court’s process of first reviewing the penalty factors for each violation and then considering the overall impact was not error. The court cannot impose a cap on penalties; if there is to be a cap, legislative action would be required. The trial court did not abuse its discretion by refusing to lower the penalty further. The MRSC memo regarding exemptions raised a “red flag” and could be considered in determining penalties after it was received.
PRA standard for granting an injunction also applies to data upheld as “trade secrets.”
Lyft, Inc. v. City of Seattle, 190 Wn.2d 769 (5/31/2018) – This case involved a public records request for data reports filed by “transportation networking companies” Uber and Lyft with the city of Seattle. Uber and Lyft considered at least some of the data to be trade secrets, and the city of Seattle agreed to provide confidentiality “within the confines of state law.” The city also agreed to provide notice to Uber and Lyft if it received a public records request for records designated as confidential or proprietary.
A public records request was made for “zip code reports,” which includes, among other things, the percentage and number of rides picked up in each zip code and the pick-up and drop-off zip codes for each ride. Uber and Lyft sought an injunction preventing disclosure, claiming that the data was confidential under the Uniform Trade Secrets Act (chapter 19.108 RCW).
The court said it was a “close call,” but it upheld a trial court finding that the reports constitute a trade secret. However, the court ruled that the reports were subject to disclosure under the Public Records Act. In so doing the court held that the Public Records Act standard (RCW 42.56.540) for granting an injunction applied. Under that standard, a permanent injunction may only be granted if disclosure is clearly not in the public interest and disclosure would substantially and irreparably damage any person or would substantially and irreparably damage vital government functions. In a 5-4 decision, the court found that this standard was not met and reversed the trial court’s grant of a permanent injunction.
Under the common interest doctrine, the communications between a county and DOE may be privileged under the work product doctrine.
Kittitas County v. Allphin, 190 Wn.2d 691 (5/17/2018) – After Kittitas County, in cooperation with the State Department of Ecology (DOE), brought a code enforcement action against Allphin, he filed a public records request with Kittitas County seeking access to enforcement records. The county withheld some emails exchanged between the county prosecutor and the DOE, claiming that they were work product. Allphin argued that the county waived the work product privilege by communicating with DOE. The court of appeals ruled that the privilege was not waived under the “common interest doctrine,” which provides that if multiple parties share confidential communications relating to a common claim or defense, the communications remain privileged (see Kittitas County v. Sky Allphin, 195 Wn. App. 355 (2016)). In a 5-4 decision, the Washington Supreme Court affirmed, ruling that under the common interest doctrine, the communications between the county and DOE remain privileged under the work product doctrine.
Special Sex Offender Sentencing Alternative (SSOSA) evaluations are not exempt from disclosure.
John Does v. Department of Corrections, 190 Wn. 2d 185 (2/22/2018) – Donna Zink made a public records request to the State Department of Corrections for Special Sex Offender Sentencing Alternative (SSOSA) evaluations of sex offenders. The state indicated that it would review the records for possible exemptions. The persons covered by the evaluations (the “John Does”) sought and obtained a restraining order prohibiting their release. Ultimately the state was enjoined from releasing the evaluations and that decision was appealed. The court of appeals affirmed the trial court decision and that decision was then appealed to the supreme court. In a divided opinion, the court reversed. The main issue covered by the decision was whether SSOSA evaluations are exempt from disclosure because they contain health care information. The court held that they were not exempt. The evaluations do not directly relate to the patient’s (the offender’s) health care; the information is only incidentally related. The evaluations are designed to assist the court in determining whether alternative sentencing is warranted. They are like forensic examinations, which are not subject to the same privacies and privileges as medical evaluations. Amenability to treatment is not a medical determination. SSOSA evaluations require a proposed treatment plan, but that alone is not sufficient to render it “health care information.” The court also concluded that pseudonyms should not have been allowed in this case.
Councilmember’s personal Facebook page is not per se a public record.
West v. City of Puyallup, 2 Wn. App. 2d 586 (2/21/2018) – Puyallup Councilmember Julie Door has a Facebook page, “Friends of Julie Door.” Arthur west made a public records requests to the city for the posts on the Facebook page. The city provided some documents, but not the posts. West sued and the court concluded that the Facebook records were not public records. West appealed and the court of appeals affirmed, stating:
[A] personal Facebook page can constitute an agency’s public records subject to disclosure under the PRA if the posts relate to the conduct of government and are prepared within a public official’s scope of employment or official capacity. However, we hold that Door’s particular Facebook posts at issue in this case were not public records as a matter of law because she did not prepare them within the scope of her official capacity as a City Council member.
Door was not conducting public business or otherwise furthering the city’s interests. Although the posts were writings, many were informational and did not directly address the “conduct” or “performance” of government functions. West argued that the city must be deemed to have “prepared” the posts, as they were prepared by the councilmember. The court disagreed. Door was not acting in her official capacity as a councilmember and she was not conducting public business on her page. While the page did contain some city information, it was minimal and informational and its inclusion was not in the scope of Door’s employment or official capacity. The page did not meet the criteria for being a disclosable public record.
County may delay responding to public records request so it can notify third party.
John Doe v. Benton County, 200 Wn. App. 781 (10/10/2017) – The county received a public records request for the names of level one sex offenders in the county. While the county determined the requested records likely should be made available, it notified the persons referenced in the requested records, allowing them to take a court action to prohibit the release. John Doe took exception to the request and sought and was granted an injunction to prevent the county from releasing the records. The requestor made a cross claim against the county, arguing that the county improperly withheld the records. The trial court dismissed the cross claim and, on appeal, that decision was affirmed. There was no denial of the record and, by RCW 42.56.540, an agency has the option of notifying persons named in the record, or to whom a record specifically pertains, that release of a record has been requested. The county could take additional time to make the third party notification. The requestor was not entitled to penalties since no final action was taken by the county denying the request; it was the court’s action that denied release of the records, not the county. It was not improper for the county to provide information regarding who was making the records request.
Election ballots remain exempt from disclosure after the election.
White v. Clark County, 199 Wn. App. 929 (7/25/2017) – White made a public records request for the ballots cast at the November 2013 election, as they were 60 days after vote tabulation. (Previously White had requested the ballots prior to their tabulation and that request was rejected by the courts). The county rejected the request, indicating that the ballots were exempt from disclosure, both under the state constitution (Article VI, section 6) and by RCW 29A.60.110, an “other statute” exemption. The trial court agreed and White appealed. The court of appeals affirmed. White was not entitled to disclosure because both RCW 29A.60.110 and WAC 434-261-045 create an “other statute” exemption that applies to election ballots even after the minimum 60-day retention period after tabulation, the “other statute” exemption applies to the entire ballot so redaction to maintain secrecy is immaterial, and RCW 42.56.210(2) does not override the exemption because “White cannot show that withholding the ballots is ‘clearly unnecessary’ to protect the vital government interest in preserving the voters’ right to absolute secrecy of their votes.”
Reasonableness of the search for a record is determined by the nature of the search process, not upon whether the record exists.
Rufin v. City of Seattle, 199 Wn. App. 348 (5/26/2017) – Rufin sought a variety of records from the city related to a discrimination claim. Some of the records were produced more than 60 days following the request. Due to multiple requests, the court determined the delay was not unreasonable. Rufin asked for emails to/from certain named individuals. Later, a relevant record was found in another person’s email account. Even though the city did not initially find that record does not mean that it had not conducted a reasonable search; the court will review the nature of the search process. Failure to provide a “five-day letter” does not in itself authorize a freestanding penalty. Some records were requested to be provided before a stated date (time is of the essence); delay in providing the records until after that date is not a violation if there was a reason for the delay.
Public Records Act may apply to a private nonprofit organization if the organization is the functional equivalent of a government agency.
Fortgang v. Woodland Park Zoo, 185 Wn.2d 1033 (1/12/2017) – The Woodland Park Zoological Society, a nonprofit agency, contracts with the City of Seattle for the operation of Seattle’s zoo. Fortgang requested certain records from the Society relating to the zoo’s elephants. Although some records were provided, others were not. The Society argued that it was not covered by the Public Records Act (PRA). Fortgang sued and the trial court concluded that the Society was not covered by the PRA. On appeal, the Supreme Court agreed and affirmed. The court found that a nonprofit could be covered by the PRA, if it were the functional equivalent to a government agency. To make that determination the court applied a four-part test, originally developed in the decision Telford v. Thurston County Board of Commissioners, 95 Wn. App. 149 (1999), the “Telford test.” That test requires a court to apply the following analysis: (1) whether the entity performs a government function, (2) the extent to which the government funds the entity’s activities, (3) the extent of government involvement in the entity’s activities, and (4) whether the entity was created by the government. In applying the test to the Society, the court found the Society to not be a functional equivalent. Balancing the Telford test components, while the funding element was inconclusive, the others did not support functional equivalency.
Requesting a clarification on a records request does not extend the time to provide the records or indicate that more time was needed.
Hikel v. City of Lynnwood, 197 Wn. App. 366 (12/27/2016) – Hikel made a public records request for certain emails. Initially, the city identified 137,000 emails. Within five days, the city emailed Hikel, acknowledging receipt of the request, asking for clarification due to the large volume of responsive records, informing him that the city might need to supply the records in installments and indicating that, once it received his reply, it would notify him of an anticipated date of completion. Later, the city determined that the number of emails was substantially fewer than originally indicated. The city notified Hikel of this and set a date when the first installment would be available. Hikel did not come to the city on the date indicated, but waited until a later date and inquired of a city worker who was not familiar with the records being available. Hikel wrote a letter regarding the delay and, ultimately, filed a lawsuit. The city continued to prepare the records, as had been requested. The trial court dismissed the lawsuit and an appeal was filed. The court found that the city initially failed to provide a date when the records would be provided; requesting a clarification did not extend the time allowed to either provide the records or request additional time. The Public Records Act required the city to provide a reasonable estimate within five days, and its failure to do so violated the Act. The city, which had indicated that the first installment would be available on a stated day, was not required to further notify that the records were then available.
Records relating to public business on personal computer are subject to disclosure.
West v. Steve Vermillion City of Puyallup, 196 Wn. App. 627 (11/8/2016) – Vermillion, a city councilmember, maintained a private computer on which he maintained some private matters along with some items that related to his position on the city council. West requested the “communications received or posted” through a personal website and associated email account run by the city councilmember. Vermillion refused to provide the documents found at his home, on his personal computer and on his personal email account, citing his rights of privacy under the state and federal constitutions. West sued and the trial court required Vermillion to provide those documents that were public. On appeal, the court affirmed, holding that it was proper to require the production of emails from a personal email account that met the definition of a public record and to require submittal of an affidavit in good faith attesting to the adequacy of the search for the requested records. The court held that the First and Fourth Amendments to the United States Constitution and article I, section 7 of the Washington Constitution do not afford an individual privacy interest in public records contained in the personal email account. In reaching its decision, the court relied on the recent case Nissen v. Pierce County, 183 Wn.2d 863 (2015), which related to records found on a private cellphone. The records, even if they are on a private device, may be subject to disclosure if the person “acts within the scope of his or her employment,” in which case the actions are tantamount to “the actions of the [body] itself.” If the records “relate to the conduct of government or the performance of any governmental or proprietary function” and are “prepared, owned, used, or retained by an agency,” they are potentially public records subject to disclosure. There is no constitutional privacy right to records that are public records. The possible disclosure of public records does not violate the right to association.
Statute of limitations for Public Records Act legal challenge is one year.
Belenski v. Jefferson County, 186 Wn.2d 452 (9/1/2016) – Belenski made a records request and was told that there were “no responsive records.” It was later determined that the requested records did exist. More than two year after Belenski received the “no responsive records” message, he sued the county. After some litigation regarding whether the requested items were public records, the court of appeals held that Belenski’s lawsuit was time barred by the two year statute of limitations. On appeal, the supreme court reversed, concluding that the one year statute of limitations under the Public Records Act, RCW 42.56.550(6), applies. Since the lawsuit was filed more than two years after the county’s response, normally the lawsuit would be time barred. However, the court returned the case to the trial court to determine whether the statute of limitations should be tolled due to the nature of the county’s response.
Providing an exempt record to another party engaged in litigation does not waive the work product privilege.
Kittitas County v. Sky Allphin, 195 Wn. App. 355 (8/9/2016) – Following an enforcement action against Allphin, one which had involved the county and the Department of Ecology, Allphin sought records associated with the enforcement action from the county. The county withheld some emails that involved correspondence between the county prosecuting attorney’s office and the Department of Ecology. Allphin objected and claimed that by the county sharing the some internal emails with Ecology, it had waived the work product privilege. The court of appeals disagreed. A party waives the attorney work product privilege if it discloses documents to other persons with the intention that an adversary can see the documents. The presence of a third person during the communication waives the privilege, unless the third person is necessary for the communication or has retained the attorney on a matter of “common interest.” “The “common interest” doctrine provides that when multiple parties share confidential communications pertaining to their common claim or defense, the communications remain privileged as to those outside their group.” The county’s sharing of emails with Ecology did not waive the work product privilege.
Lawsuit barred if not brought within one year of last submittal of public records.
White v. City of Lakewood, 194 Wn. App. 778 (5/25/2016) – White made three requests for records associated with the issuance of a search warrant. As to the first request, the city answered that the records were exempt because the investigation was on-going. As to the second request, the city made a similar denial, although it did release some records and indicated that the matter would be considered closed unless White argued differently. As to the third request, the city made the same claim of exemption, although it did provide records 365 days later. White sued. At trial the city argued that the challenges were time barred because they were not brought within a year. The court agreed, but awarded a penalty of $10 per day for the delay in the response to the third request. On appeal, the court reversed the trial court’s decision as to the first request, since it was admitted that there was no active investigation ongoing when the request was made. The court concluded that the second request was time barred since the lawsuit was not brought within one year of the city’s response to the request by providing some records. As to the third request, the court ruled against the city since there was no ongoing investigation and returned the matter to the trial court for a recalculation of the penalty.
Level I sex offender information may be released under a public records request.
John Does v. Washington State Patrol, 185 Wn.2d 363 (4/7/2016) – The supreme court has reversed the trial court decision and has held that Level I (the lowest level) sex offender information can be released in response to a public disclosure request. The plaintiffs had sought to withhold the records from disclosure, arguing that they were exempt under RCW 42.56.070(1) because RCW 4.24.550 (dealing with community notification) was an “other statute” that exempted the records. The “other statute” exemption must be explicit and may not be implied by the court. Because the legislature did not make RCW 4.24.550 explicit, it is not an “other statute” under the Public Records Act. The court did not award costs, attorney fees and penalties since the Patrol was going to release the records but was stopped from doing so by the interested parties seeking an injunction against the release.
Penalty for improperly withholding public record can be calculated on a per page basis.
Wade’s Eastside Gun Shop v. Department of Labor and Industries, 185 Wn.2d 270 (3/24/2016) – When the Department of Labor and Industries failed to provide certain records of an investigation (which the court determined were not exempt) a penalty was imposed calculated according to the number of pages found in each document. On appeal, the supreme court upheld the trial court’s decision, noting that the trial court has discretion to determine what is a relevant record, and it did not abuse that discretion by imposing penalties on a per page basis. The court also held that the records were not categorically exempt as investigative records since the Department of Labor and Industries did not prove that withholding them was essential to effective law enforcement.
Surveillance tapes in the hands of the police and the prosecutor are subject to public disclosure.
Jane Does 1 through 15 v. King County, 192 Wn. App. 10 (12/28/2015) – Surveillance tapes obtained by the police through a warrant, which were made at a private university and showed the commission of a serious crime and police enforcement action, were found to be available for public disclosure, even though the university and some students objected to their release, arguing they were not “public records” and were otherwise exempt. The court found that the tapes included information that related to government conduct and thus were public records. The court further found that the tapes were not exempt under the “victim or witness” exemption (RCW 42.56.240(2)), the “investigative records” exemption (RCW 42.56.240(1)), or the “security” exemption (RCW 42.56.420). The court further found that the pixelation of student faces was adequate protection; use of “black boxes” to obscure identities was not required.
Benton County v. Zink, 191 Wn. App. 269 (11/10/2015) – Ms. Zink made a public records request to the county, seeking records in electronic format. Although some of the records were available electronically, not all were. Given the size of the request and the fact that some records would need to be redacted, the county was unable to provide the records using its own staff and equipment. The county sought quotes from outside vendors and offered the records at 25 cents per page, the amount it would be charged by the lowest cost vendor. To honor Ms. Zink’s request, some records would need to be copied, some content redacted, then scanned, thus creating a new record that would need to be stored. Ms. Zink objected and indicated that the county had to provide the records without the per page charge. The county sought a declaratory judgment to determine its obligations.
The trial court concluded that the county could hire an outside firm to create the requested electronic documents and charge Ms. Zink for the cost of the work, the county is not required to pay someone to create additional records for records it already has in paper form, and it is not required to create or pay for additional records it already possesses in electronic form. Ms. Zink appealed, and the court affirmed. After resolving a standing issue, the court concluded that the county had no obligation to create electronic records, and that it could engage an outside service provider to create electronic copies and then charge Ms. Zink for the cost.
Adams v. Department of Corrections, 189 Wn. App. 925 (9/1/2015) – Adams, a prison inmate, made a records request for records maintained in the prison’s central records file. His request included his “criminal conviction records packet,” a packet of records that included criminal history records from the State Patrol and the FBI, such as “rap sheets.” While Adams was provided with records, some information, primarily his rap sheets, from the records packet was withheld as exempt. The exemption log was not very specific as to the reasons for the exemptions. Adams sued and the trial court determined the records had been improperly withheld and that the withholding was in “bad faith”, thus allowing the award of damages.
Earlier, in a lawsuit filed by another person, the Superior Court had determined that such records were not exempt and should be made available to the person for whom the records relate. Corrections maintained that the records could not be released based upon an agreement it had with the State Patrol. The State Patrol, however, had previously modified its position as to the availability of a person’s own records. Corrections argued that both federal and state law prohibited the release of rap sheets.
At a show cause hearing and later at a penalty hearing, Corrections failed to supply supportive records to support its position. The trial court found that Correction’s position was legally indefensible and that it simply deferred to what it was being told by individuals with the Washington State Patrol, without engaging in any critical analysis of its own. It found that the intentional “bad faith” character of the Correction’s decision to withhold the documents was further demonstrated by its persistence, after another court had rejected any claim of exemption. The court found “bad faith” for purposes of imposing penalties under RCW 42.56.565(1) due to Correction’s failure to engage in any serious independent analysis of the exempt status of the documents it had withheld.
The decision was appealed and the court of appeals affirmed. A review of federal law would have indicated that release to the person involved with the record would be allowed (there was a Supreme Court decision to that effect). Also, Corrections should have reviewed the earlier Superior Court decision on point and that the State Patrol had changed its earlier position. “Bad faith” is shown if an agency fails to conduct a search that is both reasonable and consistent with its policies. Some of the arguments presented by Corrections was inapt as to the request made by Adams. The court concluded that Corrections had no right to rely on the position of the State Patrol, or on the terms of any interagency agreement, in determining whether the requested records were exempt from disclosure. Yousoufian criteria were properly considered by the court in determining the penalty. Costs were appropriate.
Nissen v. Pierce County, 183 Wn.2d 863 (8/27/2015) – Nissen sought phone records, including text messages, found on the prosecuting attorney’s personal cell phone. Provided with redacted logs of the prosecutor’s phone and text messages, Nissen sought the text messages relating to government business. The county denied the request and Nissen sued. Superior Court concluded that the records were not public records, as they were on a private cell phone.
The court of appeals reversed and the case was appealed again. The Supreme Court affirmed, holding “that text messages sent and received by a public employee in the employee’s official capacity are public records of the employer, even if the employee uses a private cell phone,” and that “a record that an agency employee prepares, owns, uses, or retains in the scope of employment is necessarily a record prepared, owned, used, or retained by [a] state or local agency.” Records an agency employee prepares, owns, uses, or retains on a private cell phone within the scope of employment can be a public record if they also meet the other requirements of RCW 42.56.010(3).
Unless it can be shown that the county used the phone and message logs, they are not public records. The text messages, however, are potentially public records subject to disclosure. An employee’s good-faith search for public records on his or her personal device can satisfy an agency’s obligations under the PRA. Employees in good faith should submit “reasonably detailed, nonconclusory affidavits” attesting to the nature and extent of their search.
Agency employees are responsible for searching their files, devices, and accounts for records responsive to a relevant PRA request, produce any public records (e-mails, text messages, and any other type of data) to the employer agency, and then the agency proceeds just as it would when responding to a request for public records in the agency’s possession (reviewing each record, determining if some or all of the record is exempted from production, and disclosing the record to the requester.)
Block v. City of Gold Bar, 189 Wn. App. 262 (8/17/2015) – Following the termination of a city employee, Block sought records relating to the city’s action. Later, she sought records regarding how the city gathered records in response to her first request. The city provided many records, withheld or redacted others, and provided two exemption logs. In responding to the second request, the city provided some records that were not initially supplied for the first request. Some records that had been kept on private devices may have been lost due to system failures. Block sued, arguing that the redactions were improper, the search for records inadequate, and the exemption logs not sufficient. The trial court issued a summary judgment in the city’s favor and Block appealed.
On appeal, the court affirmed. The court found that the redactions were based upon the attorney-client privilege and that the exemption log provided sufficient detail to allow the plaintiff to make that determination. Citing an earlier opinion, the court stated that “the issue of whether the search was reasonably calculated and therefore adequate is a separate question from whether additional responsive documents exist but are not found.” The search need not be perfect, only adequate. That Block later obtained responsive documents does not create a genuine issue of material fact for trial. An exemption log must provide sufficient explanatory information for requestors to determine whether the exemptions are properly invoked. The log should include the type of information that would enable a records requester to make a threshold determination of whether the agency properly claimed the privilege. The city’s logs did so. Block failed to challenge the assertion that records may have been lost due to technical difficulties.
White v. Skagit County and Island County, 188 Wn. App. 886 (7/13/2015) – White requested copies of voted ballots from both Skagit and Island counties. Citing the secrecy protections provided by the state constitution and election laws, the counties denied the records request and the superior court agreed, even though there was no explicit exemption. White appealed and the court of appeals affirmed. The constitution mandates election secrecy and Title 29A RCW carries out that mandate. County employees explained that, while making copies of the ballots would be possible, it would be hugely time consuming and would delay the election process. In any case, secrecy requirements support nondisclosure. State statutes do not manifest a desire for more availability to facilitate more public inspection; instead, they support support secrecy in order to maintain ballot secrecy to maintain the integrity of ballot processing and tabulation. The court concluded that all ballots and copies are exempt from disclosure under Title 29A RCW as “another” statute. The exemption is necessary to protect a “vital government function.” The ballots are also not subject to redaction and release.
Cedar Grove Composting v. City of Marysville, 188 Wn. App. 695 (7/6/2015) – Cedar Grove operates a composting business near Marysville. There was concern that the composting operation created offensive odors. A write-in campaign was undertaken, encouraging citizens to file complaints. Cedar Grove determined that mailers urging the filing of complaints came from a public relations firm. Cedar Grove, through a consulting firm, made a public records request with the city, asking for all correspondence between the city and the public relations company, as well as other related correspondence. The city provided two installments of records, but delayed providing responsive emails and later denied some records, advising that they were covered by the attorney-client privilege. Later, one previously withheld email was released, but the city maintained that the attorney-client privilege still applied to others. Cedar Grove sued and then subpoenaed records from the consulting firm, thereby learning that the city had not fully provided all pertinent records. Other correspondence between the city’s public relations firm and a private citizen who opposed Cedar Grove had not been provided.
The superior court ruled in Cedar Grove’s favor and the city appealed. The city argued that Cedar Grove did not have standing since the records request was made by its consultant; the court disagreed since Cedar Grove had an interest in the dispute. The city admitted that attorney-client privilege did not apply, but it noted that it had supplied the records before the lawsuit was filed, so the large penalty should not be imposed; the court disagreed since the records had been improperly withheld. The city objected to a penalty imposed for its failure to find/release 19 records, indicating that they were inconsequential and did not warrant a $40/day penalty; the court disagreed. The city argued that 173 records were prepared by its consultant and never “used” by the city; the court disagreed. The consultant was a functional equivalent of a city employee and the records pertained to an issue of interest to the city. The court also noted that the fact that the city never possessed the documents did not mean that it had not “used” them. The city questioned the award of penalties, but the court supported the judge’s decisions. Some adjustments were made to the calculation of attorney fees.
White v. Clark County, 188 Wn. App. 622 (6/30/2015) – White requested disclosure of scanned images of pre-tabulated election ballots, arguing that they were nonexempt public records. His request was denied and the denial was upheld by the superior court. On appeal the court affirmed, finding that Article VI, section 6 of the Washington Constitution, various sections of Title 29A RCW, and secretary of state regulations adopted under express legislative authority make it clear that election ballots must be kept completely secure from the time of receipt through processing and tabulation. The court held that these provisions together constituted an “other statute” exemption to the Public Records Act under RCW 42. 56.070(1) and that the county did not violate the Act by failing to disclose the pre–tabulated ballot images.
Predisik v. Spokane School District No. 81, 182 Wn.2d 896 (4/2/2015) – After receipt of allegations of misconduct, the school district placed two employees on paid administrative leave while it investigated the allegations. Public records requests were made for the administrative leave record and for records showing employees on paid administrative leave. The administrative leave letters, which named the employees, indicated that the employee was placed on leave while an investigation of the possible misconduct was made; the spreadsheets set out hours worked, rate of pay, etc., and indicated that the employees were on leave for “[a]llegations currently under investigation.” The school district sought to disclose the records; the employees argued that the records were exempt, either because they contained personal information the disclosure of which would violate the right of privacy or because the matter was under investigation. Superior court concluded that the records could be provided with the names of the employees redacted; the court of appeals affirmed. In a divided (5-4) decision, the supreme court held that no exemption applied to withhold the records from public inspection and ordered the records disclosed in their entirety without redaction. The majority opinion found that “Public employees have no privacy right in the fact that they are being investigated by their public employer. The investigation is merely a status of their public employment, not an intimate detail of their personal lives, and without such a privacy right, RCW 42.56.230(3) and .240(1) are inapplicable.”
City of Fife v. Hicks, 186 Wn. App. 122 (2/24/2015) – Hicks, a police officer, filed a complaint against other members of the police department, alleging various forms of wrongdoing. An investigation was conducted by an outside consultant who found that the alleged acts were either not sustained or nonfounded. Hicks then requested materials (witness statements, audio recordings, etc.) used in the investigation of his complaint. While the city supplied some of the records that had been requested, others were denied. The city withheld audio records and transcripts of the interviews that had been conducted, arguing that they were either not public records or that they were protected under the attorney-client privilege. The court was asked to determine the extent to which the names and identifying information of interviewees, witnesses, complainants, and the persons accused can be redacted. The court of appeals found that the records at issue constituted specific investigative records because they were “designed to ferret out criminal activity or to shed light on some other allegation of malfeasance.”
Even though the investigation was conducted by a consultant, the court found that they were compiled by a law enforcement agency. Although it had the burden, the city failed to raise a genuine issue of material fact as to whether nondisclosure of the redacted material was essential to effective law enforcement, and it failed to raise a genuine issue of material fact as to whether nondisclosure of the accused officers’ identifying information is essential to protect a person’ s privacy. Even though the investigative report concluded that all of the allegations were either unfounded or not sustained, the investigation in fact confirmed that many of the events described had actually occurred. Those allegations concerned the official conduct of high-ranking police officials, inherently a matter of greater interest to the public. Disclosure of the identities of accused officers would not offend their right to privacy under the investigative records exemption. There was no exemption that would allow the whistleblower’s name to be redacted.
Worthington v. WestNET, 182 Wn.2d 500 (1/22/2015) – WestNET is the West Sound Narcotics Enforcement Team (WestNET), a multijurisdictional drug task force, established by multiple jurisdictions through an interlocal cooperation act agreement. After Worthington’s home was raided, presumably by WestNET action, Worthington made a records request to WestNET. Although Worthington was provided with various documents in response to his request, the documents were provided by one of WestNET’s member agencies, not by WestNET itself. Worthington sued. WestNET answered by arguing that it was not an independent legal entity under the terms of the interlocal agreement that established the task force. The agreement stated “[t]he parties do not intend to create through, this Agreement, a separate legal entity subject to suit.” Can the parties to an interlocal agreement establish, as a matter of law, that their own task forces do not exist for the purpose of the PRA? The supreme court concluded “No.” The case was returned to the trial court to determine if WestNET was subject to the public records act; it was decided, though, that the interlocal agreement could not make that decision.
State v. A.G.S., 182 Wn.2d 273 (12/31/2014) – The only records that can be released from an “official juvenile court file” are those records defined by RCW 13.50.010(1)(b) – all other records within the file are by default confidential.
City of Lakewood v. Koenig, 182 Wn.2d 87 (12/11/2014) – The court was asked to decide whether the city’s explanation for redacting driver’s license numbers from records produced for Koenig was inadequate and, if so, whether Koenig was entitled to attorney fees. Koenig had requested records from the city, including records that listed dates of birth and driver’s license information. While the city provided the records, it redacted information, such as dates of birth. The court, in its 5 – 4 divided opinion, noted that agencies withholding or redacting records must identify the specific exemptions they believe apply and provide a brief explanation as to why. Here, the court found that the city’s responses either failed to cite a specific exemption or failed to provide any explanation for how a cited “other” statute exemption applied to the redacted driver’s license numbers in the specific records produced. It held that the city of Lakewood violated this requirement and thus Koenig was entitled to attorney costs and fees for vindicating his right to receive a response. The dissent noted that, as result of this decision, an agency must now pay attorney fees if it wrongly withholds records or if it correctly withholds records but fails to provide a correct explanation.
Belo. Mgmt. Servs. v. Click! Network, 184 Wn. App. 649 (11/25/2014) – This decision deals with the “other statute” exemption, RCW 42.56.070(1). The court decided that a retransmission consent agreement entered into by the Tacoma-owned cable system was not exempt as a trade secret under the state’s Uniform Trade Secrets Act, chapter 19.108 RCW. The court also rejected an argument that the agreement was exempt under federal statutes and regulations.
Hobbs v. State Auditor’s Office, 183 Wn. App. 925 (10/72014) – The State Auditor’s Office prevailed on all issues because the SAO was thorough in their search for responsive records and communicated clearly with the requestor in order to better understand the request. The decision contains helpful wording regarding the adequacy of a PRA search, stressing that a court’s role is to review the scope of the search and to find whether the search was reasonable – see particularly pp. 943-45.
Andrews v. Washington State Patrol, 183 Wn. App. 644 (9/16/2014) – Mr. Andrews discovered that some attorney-client telephone conversations were being recorded in a Washington State Patrol (“WSP”) breath alcohol concentration room. Based upon his finding, he requested various documents covering a three-year period from the WSP, including a copy of all recorded attorney-client telephone conversations. During this time period, while it worked on the production of the requested records, the WSP had over 1,000 other record requests pending. It notified Mr. Andrews that it would be 20 days before it could respond and later it further indicated that an additional 20 days was required. Although the WSP did respond, it failed to meet both of its self-imposed deadlines, and it failed to give an additional estimate of the time required. Mr. Andrews sued. The trial court issued a summary judgment in the WSP’s favor and, upon appeal, the court affirmed. On the appeal the court considered if the Public Records Act (PRA) is violated when an agency, despite acting diligently, fails to comply with its self-imposed deadlines. “Should courts apply rigid rules that penalize a diligent but late response, or may courts take a flexible approach?” The court concluded that “a flexible approach that focuses upon the thoroughness and diligence of an agency’s response is most consistent with the concept of ‘fullest assistance’.” There is no requirement that an agency give an explanation of its time estimate, and failure to meet that estimate does not necessarily result in a violation of the PRA.
Faulkner v. Dept. of Corrections, 183 Wn. App. 93 (8/192014) – When reviewing whether an incarcerated inmate is entitled to damages under RCW 42.56.565 due to an agency’s bad faith response, the court held that “. . . to establish bad faith, an inmate must demonstrate a willful or wanton act or omission by the agency.” The court explains that standard by discussing several prior decisions.
DOT v. Medoza De Sugiyama, 182 Wn. App. 588 (7/29/2014) – The “controversy” exemption of RCW 42.56.290 does not exempt records from disclosure under the PRA merely because a judge has issued a protective order regarding public records of an agency in a pending civil action because providing the records would be unduly burdensome – the records are still “available” under the civil rules of pretrial discovery.
West v. Port of Olympia, 183 Wn. App. 306 (8/26/2014) – Allegations of misconduct had been brought against a port employee. The allegations were deemed unsubstantiated. West sought records relating to the port’s investigation. Citing the former RCW 42.56.230(2), the Port redacted the employee’s name, job title, job duties, and other identifying details, indicating their release. The Port made the redactions under the exemption in former RCW 42.56.230(2) for personal information that would violate an employee’s right to privacy. West sued and the trial court dismissed the lawsuit. On appeal, the court reversed the decision. The court held that even though the employee may have had a privacy interest in his or her identity with respect to the misconduct allegations, disclosure of that identity under the circumstances of the case would not violate that privacy interest because disclosure would not be “highly offensive to a reasonable person.” The Public Records Act’s disclosure requirements are to be liberally construed; exemptions narrowly construed. After reviewing the report in question, the court concluded that release of the identifying information would not be highly offensive.
Fisher Broadcasting v. City of Seattle, 180 Wn.2d 515 (6/12/2014) – A local television station requested records associated with police vehicle dash-cam tapes (log sheets, lists of recordings tagged for retention and copies of tagged recordings). Some were provided, some were not and the station sued. Superior court agreed that the logs need not be produced, as they did not exist. On appeal, the supreme court agreed; the logs were no longer kept and older ones had been destroyed. As to the list of tagged videos, the city argued that such lists did not exist, the trial court concluded that they should have been provided and the supreme court agreed. Even though the lists did not exist in the form requested, the fact that the requested information was in a database designed for a different purpose required its production; the production of the information is not necessarily a creation of a record. Since the city had the capacity to produce a partially responsive record, it should have done so. Tagged tapes were not exempt from disclosure, pursuant to RCW 9.73.090(1)(c). That statute does not categorically exempt the tapes, but it does allow the delay of their production while there is actual, pending litigation.
City of Seattle v. Egan, 179 Wn. App. 333 (2/3/2014) – Public Records/SLAPP. Egan sought certain records from the city. The city supplied some but not all of the records. Egan disagreed with the city and threatened to sue. The city then sought a declaratory judgment and injunction to determine whether the withheld records were exempt from disclosure. In return, Egan filed a SLAPP suit against the city, arguing that the city’s suit was designed primarily to chill his exercise of his First Amendment rights. Egan sought dismissal of the city’s lawsuit, but his motion was denied. On appeal, the court found that Egan’s right to records was statutory, not constitutional. The Public Records Act, allows declaratory and injunctive relief, and the city’s action was not primarily concerned with limiting Egan’s protected activity. Egan still had the right to seek the requested records through court action.
Sargent v. Seattle Police Department, 179 Wn.2d 376 (2013) – Sargent was arrested for the assault of an off-duty police officer. Since Sargent was jailed, materials were transmitted to the prosecuting attorney for an expedited review and charging. The prosecutor, however, declined to file charges and the case was returned to the police for further investigation. Later the file was submitted to the city attorney who also declined to file charges. Sargent requested the investigative files, including an internal investigation file. Sargent’s records request was denied by the city, which argued them exempt for effective law enforcement purposes. Sargent sued. Following earlier proceedings, the supreme court considered the issue and, in a 5 – 4 decision, mostly supported the release of the documents to Sargent. The court held that the effective law enforcement exemption ceases to apply categorically to investigative records once the case is first referred to a prosecutor for a charging decision. The court also held that the city violated the PRA by withholding records of an internal disciplinary investigation. Since the effective law enforcement exemption does not apply categorically to this type of material, the exemption might be applicable, but the city would need to demonstrate that disclosure would endanger a person’s life, physical safety, or property, or that a witness had requested nondisclosure.
Gronquist v. Department of Corrections, 177 Wn. App. 389 (2013) – Gronquist was a prisoner at a state institution. He sought a series of records, including records relating to the use of undocumented alien workers by the Department of Corrections (DOC), surveillance tapes from the prison, and an investigative file. The DOC responded by indicating that the requested records relating to undocumented aliens did not exist, the surveillance tapes were exempt from disclosure and it provided the investigative file, less one page that was inadvertently omitted but later provided. The court of appeals found that the undocumented alien records did not exist and were not identifiable, the surveillance tapes were exempt as investigative records, and that no penalty was due for the inadvertent omission of one page (and, in any case, prisoners are not entitled to penalties unless there is bad faith (and there was none)).
City of Lakewood v. Koenig, 176 Wn. App. 397 (2013) Koenig sought certain records from the city, which the city provided, redacting some information, such as driver’s license information. The city asked Koenig to confirm that it had satisfied his request. When Koenig failed to make such a confirmation, the City filed a declaratory action for such a determination. Koenig, on the other hand, sought costs and attorney fees, arguing that the city had not given a brief explanation for the redactions it had made. The trial court concluded that the city had complied and denied the request for costs and attorney fees; Koenig appealed. The court reversed the trial court’s decision regarding costs and attorney fees. While the city had cited statutes that would or might exempt some of the requested information, it failed to provide a brief explanation as to why the exemptions applied. Failure to give a brief explanation entitled Koenig to costs and attorney fees.
Resident Action Council (RAC) v. Seattle Housing Authority, 177 Wn.2d 417 (2013) The issue before the court was whether grievance hearing decisions filed with the housing authority were exempt from disclosure. While welfare recipients’ personal information is exempt from disclosure, the Public Records Act requires redaction and disclosure of public records insofar as all exempt material can be removed. Applicable federal regulations do not exempt the hearing decisions from disclosure, nor do applicable federal regulations preempt the Public Records Act. This is a lengthy opinion. It provides a very good summary of the Public Records Act, along with a flow chart to determine whether a record is exempt and a listing of exemptions, divided into categorical and conditional exemptions. The court required the housing authority to develop and publish public records procedures. It also required that records requested to be provided in an electronic format be so provided.
Cornu-Labat v. Hospital District No. 2, Grant County, 177 Wn.2d 221 (2013) Cornu-Labat was a physician working at the Quincy Valley Medical Center. Following several investigations into alleged bad conduct, which were not substantiated, the district terminated Cornu-Labat’s employment when he failed to take a psychological evaluation. Cornu-Labat then requested the documents related to the investigations. The district denied the request, citing various exemptions; the trial court granted Cornu-Labat’s request and the district appealed. While several issues were returned to the trial court, some conclusions were reached: a peer review committee can include nonphysicians; a committee formed to investigate complaints against a physician is not a “quality improvement committee” whose records would be protected under RCW 70.41.200; RCW 70.42.062 provides that meetings and proceedings of the board relating to the suspension, denial, etc. of staff privileges are confidential, and “proceedings” would include minutes, however, other documents considered at such meetings may not be exempt from disclosure; and, even though Cornu-Labat had signed a contract indicating that all records relating to the professional staff would be confidential. That agreement may have protected some records while the doctor was employed, but it did not necessarily do so once he was terminated.
Bartz v. Department of Corrections, 173 Wn. App. 522 (2013) Bartz made three public records requests of the Department of Corrections. The department provided records, but Bartz was not satisfied with the response and sued. The decision is largely fact-specific, but it does offer some advice. The fact that the requesting party already has the records being requested does not relieve the government of its duty to provide the record. There is a one-year statute of limitations where the government provides records in a single installment. (Bartz had argued that there was no specific statute of limitation.)
Forbes v. City of Gold Bar, 171 Wn. App. 857 (2012) Forbes sought numerous electronic records from the city. Given the volume of the requested records, other records that were being requested by others, the need to search private computers and electronic devices, the city was unable to provide the records as quickly as Ms. Forbes sought. She sued and the trial court ruled in the city’s favor. On appeal, the court affirmed. The response to the request was reasonable in light of the difficulty the city had in retrieving the information and the efforts it expended to recover the information. The city conducted an extensive search of multiple sites where the records Forbes requested might be housed. This search was reasonably calculated to uncover all relevant documents. (The city hired a consultant to retrieve the requested information, it updated Ms. Forbes on the status of its response to her requests, it provided documents in batches as they became available.) It was not necessary to conduct an in camera review of personal emails or prepare an exemption log regarding such emails since they were personal, not public records.
Germeau v. Mason County, 166 Wn. App. 789 (2012) Following an off-duty altercation, the county began an investigation regarding a deputy sheriff. The deputy’s union representative (Germeau) sought information from the county regarding the investigation. Some information that was sought was not provided and, the representative filed a lawsuit under the Public Records Act. The trial court entered a summary judgment in the county’s favor, concluding that Germeau did not have standing to bring the lawsuit and concluding that, even if there was standing, the request for information did not give the county fair notice that it was a public records request. On appeal the court concluded that Germeau did have standing; nevertheless, it concluded that the county had not been given fair notice. Nothing in Germeau’s letter put the county on notice that he was requesting records under the PRA; instead, his letter appeared to request documents and ongoing information in connection with the Sheriff’s Office’s investigation.
Neighborhood Alliance of Spokane County v. County of Spokane, 172 Wn.2d 702 (2011) The Alliance sought records from the county that would help explain certain hiring decisions. The county provided some records, including a seating chart that existed on a computer. The county, however, did not search an earlier computer for the record, and subsequently that chart that was on that computer was erased. The Alliance sued and, after review by the court of appeals, asked the supreme court to define the scope of discovery allowed in Public Records Act (PRA) provoked lawsuits, and what constitutes an adequate search. The court held that discovery in a PRA case is the same as in any other civil action and is therefore governed only by relevancy considerations. The court adopted Freedom of Information Act (FOIA) standards of reasonableness regarding an adequate search. An inadequate search may be considered an aggravating factor in calculating daily penalties. And, finally, since the harm was done at the time the record’s request was made by the Alliance and refused, it may be entitled to recover costs and fees if the agency wrongfully failed to disclose documents in response to its request.
Mitchell v. Department of Corrections, 164 Wn. App. 597 (2011) A prisoner, Mitchell, requested records that were held in electronic form and asked that they be sent to him electronically by email. The department advised that the records contained information that would need to be redacted, could not be provided electronically, and thus asked that the prisoner have the records either mailed to him or reviewed by someone acting on his behalf. Mitchell sued, arguing that no exemption statement had been provided, and that the records should be provided electronically. The trial court denied Mitchell’s demands, and Mitchell appealed. The court disagreed with the department’s argument that it had not denied the records request. The court held that the department was required to provide an exemption report when it failed to provide the requested documents, but it agreed that the records are not required to be provided electronically.
West v. Department of Natural Resources, 163 Wn. App. 235 (2011) West requested numerous records concerning the department’s chief financial officer, including emails. The department made its initial response eleven days after the request. Some of the emails had been lost due to a change in equipment. The department spent considerable time and expense seeking to recover the emails, but the effort ultimately proved futile. West sued. The response was due within five business days. While the response may have been reasonable, it was not timely, since it was given after eleven days. Five days means five days. There was no suggestion that the department intentionally destroyed the records, and it was shown that substantial effort was made to recover them. There was no liability associated with the lost records. The plaintiff also argued improper withholding based on attorney-client privilege; the court ruled against this argument.
Bainbridge Island Police Guild v. City of Puyallup, 172 Wn.2d 398 (2011) After being stopped by a Bainbridge Island police officer, a driver alleged that she had been choked and sexually assaulted by the officer. Mercer Island and Puyallup police departments investigated the incident and issued reports; the incident was found to be “unsubstantiated” and no charges were brought against the police officer. One of the reports was released, a news account published, and then, in response to other public records requests for the reports, an injunction was sought and granted. On appeal, in a divided decision, the court’s lead opinion found that the officer’s initial failure to object to the report’s release did not constitute a waiver from later objecting, under privacy grounds, to other records’ requests. The court concluded that the reports were “personal information” and that the right to privacy had not been lost due to the initial release. The decision found that the release of the officer’s identity would be highly offensive; however, release of the reports, with identity information redacted, would satisfy a legitimate public concern. Also, under an argument relating to the criminal records privacy act, the court found that hold that RCW 10.97.080 requires redaction of only criminal history record information and does not exempt information relating to the conduct of the police during the investigation.
Zink v. City of Mesa, 162 Wn. App. 688 (2011) The Zinks requested numerous records from the city. The city, while satisfying some of the requests, was nevertheless slow in providing others and for various reasons failed to provide some altogether. The Zinks brought a lawsuit. On many of the issues, the Zinks prevailed and the court determined penalties for the city’s failure to follow the public records act. The Zinks objected to the manner the court determined the penalties and the number of days for which penalties applied. The court, on appeal, returned the case to superior court for recalculation of the penalties owed, requiring use of the Yousoufian [v. Office of Ron Sims, 168 Wn.2d 444, 229 P.3d 735 (2010)] factors. The decision reviews each of the situations for which penalties were or should have been assessed.
Gronquist v. Department Of Corrections, 159 Wn. App. 576 (2011) State prison inmates sought to review various records; they did not ask for copies. Prison policies restricted access to some records and, in other instances, the prison required payment before the inmate could be given copies. The inmates appealed. The court, however, recognized that prison inmates do not possess the same rights as do the general public. The prison may adopt reasonable rules to enable it to carry out its responsibilities and help assure safety for the prison and the public. The court upheld the prison’s rules.
Yakima County v. Yakima Herald-Republic, 170 Wn. 2d 775 (2011) A newspaper sought documents from the court and county regarding attorney costs associated with the defense of two indigent murder defendants. (One of the defendants plead guilty; the other was tried and found guilty and that conviction was appealed.) Having been initially denied the requested records, the newspaper appealed. On appeal the Court affirmed long standing case law and held that the documents prepared by court personnel in connection with court cases and maintained by the court were judicial documents governed by GR 15. It also held that such documents, when transferred to nonjudicial county entities, are governed by the Public Records Act unless they are subject to an additional protective order. The Court held that a trial court has jurisdiction to consider a motion to unseal court documents and is not required to seek permission from an appellate court pursuant to RAP 7.2 when the sealing order will not impact a separate decision on appeal, and that a limited intervention by a third party in a criminal case is a proper procedure after trial has ended. The Court remanded the case to the trial court to determine whether continued sealing of these financial documents is proper pursuant to GR 15(e), given the current posture of the criminal case.
Gendler v. Batiste, 158 Wn. App. 661 (2010) Gendler was seriously injured when a bicycle he was riding had its wheel get stuck in a bridge grating. He sought accident reports from the State Patrol relating to bicycle accidents that had previously occurred on the bridge. The records are provided to the state department of transportation to enable it to make safety changes. The state patrol argued the records, under the “Federal Highway Safety Act,” 23 U.S.C. 409, were privileged such that it need not provide these records. The trial court disagreed and, on appeal, the decision was affirmed. While the records may be exempt by federal law under the department of transportation’s responsibilities to improve safety, the state patrol has a duty, independent of WSDOT’s federal obligations, to collect data and publish reports “showing the number of accidents, the location, the frequency, . . . and the circumstances thereof.” The records should have been provided.
O’Neill v. City of Shoreline, 170 Wn.2d 138 (2010) Is the metadata (data about electronic data) subject to disclosure? On appeal, the Supreme Court has determined that such data is subject to disclosure. The court, in a divided opinion (5 to 4), concluded that an electronic version of a record, including its embedded metadata, is a public record subject to disclosure subject to disclosure. The court also determined that the city should inspect a councilmember’s hard drive for the metadata to determine whether it had provided the requested information when it had provided a paper copy as well as other information associated with the the inquirer’s request. The case was returned to the trial court to determine whether the city had violated the state’s public records disclosure requirements.
Sanders v. State, 169 Wn.2d 827 (2010) Supreme Court Justice Sanders faced possible disciplinary action following a visit he made to a state prison.. The Justice looked to the Attorney General’s Office (AGO) for a defense and then later sought records from the State Attorney General’s office relating to the disciplinary action. Numerous issues are addressed in the (unanimous) Court’s decision. Perhaps the most relevant portion of the decision, however, relates to how an agency responds to a request. If an agency determines that a particular record is exempt, it must not only cite the exemption, it must provide an explanation an exemption applies to the record withheld. Failure to provide an explanation can/will result in an additional penalty to the penalty assessed for improperly withholding a record. As to a majority of the issues raised, the Supreme Court upheld the decisions of the trial court.
Parmelee v. Mathieu, 157 Wn. App. 119, (2010) Parmelee, a prison inmate, sought a variety of records relating to department of corrections personnel. It was thought that the purpose of the requests was to develop fliers and other materials used to harass the corrections employees. When superior court enjoined the release of many of the records, Parmelee appealed. On appeal the court held that, despite obvious and repeated abuses, prison inmates have standing to request records under the public records act. Although at the time Parmelee filed his records’ requests the trial court could not consider Parmelee’s intent when determining whether a document was subject to disclosure; the trial court could not consider Parmelee’s explicit and volunteered threats in deciding whether to grant the government employee’s request for an injunction to protect the individual rights of the government employees. The court further held that the trial court erred when it determined that certain personnel records, intelligence and investigation reports, and portions of compensation records and training records were exempt from disclosure, although remand was necessary to allow the trial court to review the documents in camera to determine whether Parmelee was entitled to them. The court also held that while ordinarily a superior court cannot consider a requestor’s intent when determining whether an injunction is appropriate, corrections’ employees have the right to seek an injunction to protect their individual privacy rights when faced with an explicit and volunteered threat.
Tobin v. Worden, 156 Wn. App. 507 (2010) The Tobins requested copies of two letters. One was provided, although in a redacted form, and the other was not, as it had been lost in the copying process. More than a year later, the Tobins brought a lawsuit under the Publlic Records Act. The trial court ruled against the Tobins due to the failure to take action within one-year. On appeal, the court reversed, finding that the county did not claim an exemption for the requested records, nor did it produce a record on a partial or installment basis; it simply provided a single requested document with redactions and failed to provide at all another requested document. Thus, the one-year statute of limitations was never triggered and the trial court erred by dismissing the claims as time barred.
Burt v. Department of Corrections, 168 Wn.2d 828 (2010) A state prisoner sought information regarding certain employees from the Department of Corrections. The Department notified the affected employees, and the employees obtained an injunction prohibiting the release of the requested documents. The prisoner argues that he should have been joined as a party in the lawsuit that sought the injunction. A divided Supreme Court agreed, finding that the requesting party was necessary to protect his interests and advocate for the release of the documents. (The Department did not object to the injunction sought by its employees.)
Kitsap County Prosecuting Attorney’s Guild v. Kitsap County, 156 Wn. App. 110 (2010) A newspaper sought information about county employees, including town of residence. The county provided most of the information, but indicated that it would notify its employees about the request for town of residence information, allowing them to seek an injunction. The county set a date for its response to the paper, but it did not provide the information by that date. Subsequently the employees filed a court action to block release of the information; this effort was ultimately denied. The newspaper sued the county for its failure to supply the requested information. The trial court the trial court found that the County was liable for attorney fees, costs, and penalties. The County argued that because it exercised good faith, the trial court erred when it imposed attorney fees and penalties. On appeal, the Court disagreed. The County requested a reasonable amount of time to determine whether the requested information was disclosable, but it did not make its decision by that date. Although there was no injunction, the County failed to provide the requested information in an attempt to avoid paying fees and fines until the trial court ruled on the legality of disclosure. A request for an injunction is not the same thing as an injunction; the county was required to provide the requested information in a timely manner and it did not.
Koenig v. Thurston County, 155 Wn. App. 398, (2010) A divided court held that certain documents held by the prosecuting attorney’s office could be released: Special Sex Offender Sentencing Alternative (SSOSA) evaluations are not exempt from disclosure, although information identifying the victim and certain third parties (other victims named in the evaluation, and, where appropriate, the victims’ family members, friends, innocent bystanders and any other non-expert or non-law enforcement witness) can be redacted; victim impact statements are exempt under the investigative record exemption.
Yousoufian v. Office of Ron Sims, 168 Wn. 2d. 444 (2010) Another case involving the county’s failure or delay in providing public records. The trial court assessed a $15/day penalty; Yousoufian appealed. While the supreme court did set the penalty to be imposed, $45 per day, it also indicated that setting the penalty would not normally be a function of an appellate court. For future cases, the court set out the following factors to help determine the penalty that should be imposed: “In our view, mitigating factors that may serve to decrease the penalty are (1) a lack of clarity in the PRA request, (2) the agency’s prompt response or legitimate follow-up inquiry for clarification,1 (3) the agency’s good faith,11 honest, timely, and strict compliance with all PRA procedural requirements and exceptions, (4) proper training and supervision of the agency’s personnel, (5) the reasonableness of any explanation for noncompliance by the agency, (6) the helpfulness of the agency to the requestor,12 and (7) the existence of agency systems to track and retrieve public records. Conversely, aggravating factors that may support increasing the penalty are (1) a delayed response by the agency, especially in circumstances making time of the essence,13 (2) lack of strict compliance by the agency with all the PRA procedural requirements and exceptions, (3) lack of proper training and supervision of the agency’s personnel, (4) unreasonableness of any explanation for noncompliance by the agency, (5) negligent, reckless, wanton, bad faith, or intentional noncompliance with the PRA by the agency, (6) agency dishonesty, (7) the public importance of the issue to which the request is related, where the importance was foreseeable to the agency,14 (8) any actual personal economic loss to the requestor resulting from the agency’s misconduct, where the loss was foreseeable to the agency, and (9) a penalty amount necessary to deter future misconduct by the agency considering the size of the agency and the facts of the case.”
Neighborhood Alliance of Spokane County v. County of Spokane, 153 Wn. App. 241 (2009) Suit involving request for computer records. A computer that may have held information sought by Alliance was wiped clean and, thereafter, although Alliance requested information, the computer was not searched. The adequacy of the agency’s search is judged by a standard of reasonableness, construing the facts in the light most favorable to the requestor. An agency fulfills its obligations under the PRA if it can demonstrate beyond a material doubt that its search was “‘reasonably calculated to uncover all relevant documents.'” The agency must show that it “made a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested.” The adequacy of an agency’s search is separate from the question of whether the requested documents are found. Also, there is no cause of action under the PRA to enforce the re-disclosure of records known by the requesting party to already be in its possession.
Mechling v. City of Monroe, 152 Wn.App. 830 (2009) Mechling sought, among other things, e-mail messages to and from councilmembers, received on personal or business computers; she also requested they be supplied in electronic format. While the city supplied some of the requested documents, it redacted e-mail addresses and did not provide the information in electronic format. Mechling sued and, after the superior court found that the city had complied, appealed to the court of appeals. The court held that the e-mail addresses were not exempt and deferred on the issue of providing records in electronic format, leaving whether it was reasonable and feasible to supply the records in that form to the superior court to decide. The court further advised that a document prepared for a purpose other than or in addition to obtaining legal advice and intended to be seen by persons other than the attorney, does not become subject to the attorney-client privilege merely by being shown to the attorney. And the court held that for those e-mail records which the city withheld, it must provide the name of the author and the recipient of the e-mails.
City of Federal Way v. Koenig, 167 Wn. 2d 341 (2009) Koenig requested judicial records from the Federal Way court; his requests were denied. On appeals the Supreme Court, relying on its decision, Nast v. Michels, 107 Wn.2d 300, 730 P.2d 54 (1986), the Court affirmed its conclusion that the Public Records Act does not apply to the judiciary and the legislature has acquiesced to that decision by not modifying the Act.
Building Industry Association of Washington v. McCarthy, 152 Wn. App. 720 (2009) The BIAW sought records from Pierce County, including some e-mails that had been destroyed consistent with state retention guidelines. The county provided all of the records it could find, but the BIAW insisted that, since there were two omitted e-mails, undoubtedly there were others. The BIAW provided no evidence at a summary judgment motion, asked for no discovery, and did not seek a continuance. The court, after reviewing affidavits explaining the county’s search for the requested records and its retention practices, granted a summary judgment in favor of the county. The BIAW appealed; the superior court’s judgment was affirmed.
Morgan v. City of Federal Way, 166 Wn.2d 747 (2009) A municipal judge was alleged to have created a hostile work environment. The city attorney initiated an investigation and notified the judge, seeking cooperation. Although the judge sought to stop the investigation, it was completed and a report was prepared. A local newspaper requested a copy of the investigative report. The judge sought a court order prohibiting the release of the report. Although the court initially prohibited the release, it later lifted the ban and the judge appealed. The Court concluded that the report was a “public record” (prepared, owned, used, and retained by the city). It was not exempt as work product, as when it was prepared, there was no anticipation of litigation. There was no attorney-client privilege because the attorney who prepared the report did not have an attorney-client relationship with the judge. And there was no personal information exemption (privacy) since the items in the report were not “highly offensive” and the judge failed to demonstrate how disclosure would not be in the public interest.
Koenig v. Pierce County, 151 Wn. App. 221, (07/13/2009) Following his arrest for a matter that was never prosecuted, the defendant Koenig sought from the county sheriff and county prosecutor all of the materials relating to the decision to not prosecute. While some materials were provided by both county departments, the prosecutor’s office withheld some records as being work product. Koenig sued. Following a decision favorable to the county, Koenig appealed, and the court upheld the superior court’s decision. The court upheld the county’s use of the plurality decision in Limstrom v. Ladenburg, 136 Wn.2d 595, 604, 963 P.2d 869 (1998), relating to the withholding of work product and the application of CR 26. The court also found that there was no responsibility for the county to coordinate the responses from the prosecutor and the sheriff. Also the court found that the county had adequately described the records it had withheld.
Beak, Cummings, Rasmussen and Wingard v. City of Seattle (2009) Plaintiffs requested “documentation supporting [the city’s] asserted inability to implement our suggestions or any of the alternatives to their proposal.” When the orally requested documentation was not provided, plaintiffs filed suit under the public records act. The court concluded that the plaintiffs had asked for documentation but were not sufficiently precise to constitute a request for an identified record. The problem was with the ambiguity of the request, not the form of the request.
Rental Housing Association v. City of Des Moines, 165 Wn.2d. 525 (2009) When a requesting party is dissatisfied with an agency’s response to a records request, it may bring an action under the PRA but must do so “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). When does that one-year period begin? Rejecting the argument that that a “claim of exemption” starts the clock, the court finds that the period begins when a “privilege log,” is issued. To satisfy the privilege log requirement, it appears that a response denying a record request must (1) adequately describe individually the withheld records by stating the type of record withheld, date, number of pages, and author/recipient or (2) explain which individual exemption applied to which individual record rather than generally asserting the controversy and deliberative process exemptions as to all withheld documents.
Yousoufian v. Office of Ron Sims, 165 Wn.2d. 439 (2009) This decision provides the latest chapter in a public records case that has spanned over 11 years. This particular decision involves the calculation of the penalty to assess when a court determines that a records request response has been improperly delayed or denied. The trial court, after reviewing the record, concluded that the penalty should be $15 per day (set at the lower end of the statutory scale of $5 to $100 per day). A majority of the court, in a divided decision with five opinions, concluded that the trial court had abused its discretion in setting the penalty at $15 (one of the opinions suggested the penalty would be more appropriately set near $100). In sending the case back to the trial court, the majority provided a list of factors to consider in deciding the amount of penalty. Mitigating factors are: the lack of clarity of the request; an agency’s prompt response or legitimate follow-up inquiry for clarification; good faith, honest, timely, and strict compliance with all the procedural requirements and exceptions; proper training and supervision of personnel; reasonableness of any explanation for noncompliance; helpfulness of the agency to the requestor and the existence of systems to track and retrieve public records. Aggravating factors that increase a penalty are a delayed response, especially in circumstances making time of the essence; lack of strict compliance with all th procedural requirements and exceptions; lack of proper training and supervision of personnel and response; unreasonableness of any explanation for noncompliance negligent, reckless, wanton, bad faith, or intentional noncompliance with the Public Records Act; dishonesty; potential for public harm, including economic loss or loss of governmental accountability11; (8) personal economic loss; and a penalty amount necessary to deter future misconduct considering the size of the agency and the facts of the case.
Parmelee v. Clark, 148 Wn. App. 748 (2008) Prison inmate made public records request to Department of Corrections, but not to person designated to accept requests. Because the two record requests were not submitted to the designated public disclosure coordinator, the agency may not be penalized for failing to respond to them in a timely fashion.
Bellevue John Does 1-11 v. Bellevue Sch. Dist. No. 405, 164 Wn.2d 199, (2008) The court, on a divided vote held that the identities of public school teachers who are subjects of unsubstantiated allegations of sexual misconduct are exempt from disclosure under public disclosure act. Also, letters of direction must be released to the public, but where a letter simply seeks to guide a teacher’s future conduct, does not identify an incident of substantiated misconduct, and the teacher is not subject to any form of restriction or discipline, the name of the teacher and other identifying information must be redacted.
West v. Port of Olympia, 146 Wn. App. 108 (2008) The port was requested to furnish a copy of a lease it had entered into with Weyerhaeuser. The request was denied for several reasons, including the “deliberative process” exemption. However, the lease had been approved, so that exemption no longer applied. The records could not be denied just because the port would enter into other leases and the lease in question could affect those subsequent negotiations. Since the lease had been approved, the exemption no longer applied.
O’Neill v. City of Shoreline, 145 Wn. App. 913 (2008) A councilmember/deputy mayor referenced an e-mail she had received during a council meeting. O’Neill requested a copy of the e-mail. However, the electronic record of the e-mail was altered through the removal of the heading (To/From). O’Neill sued to obtain the e-mail. The court concluded that the record was a public record, even though it had been received by the councilmember on a private computer. Although O’Neill had been furnished a paper copy of the e-mail, she had requested the metadata. The court found that the metadata fell within the definition of a public record.
West v. Thurston County, 144 Wn. App. 573 (2008) West sought copies of outside legal counsel billings for legal work performed for the county in the defense of a lawsuit. The county initially denied the request but, after a lawsuit was filed to force disclosure, provided redacted copies relating to the first $250,000 of billings (the extent of the county’s deductible). The county argued that it did not have the rest of the billings and that the billings it did have were exempt as records relevant to a controversy (RCW 42.56.290). The court of appeals reversed the trial court, referencing 2007 legislation which clarified the availability of billing information (RCW 42.56.904): billings should be made available except as to work product which would include factual information which is collected or gathered by an attorney, as well as the attorney’s legal research, theories, opinions, and conclusions. The court applied the legislation retroactively and found that the county could not avoid liability for the failure to provide copies simply by waiting to furnish the records until after a lawsuit was filed.
Clarke v. Tri-Cities Animal Care & Control Shelter, 144 Wn. App. 185 (2008) Three cities by interlocal agreement formed an animal control agency. That agency then contracted with a private business for the furnishing of animal control services. A citizen, citing the public records act, sought euthanasia records from the private business and from one of the cities. The business denied the request, indicating that it was not a public agency; the city denied the request, indicating that it did not possess the records sought. A lawsuit followed, and the trial court agreed with the business/city. On appeal, the court reversed. Applying and balancing factors from a four-part test ((1) whether the entity performs a governmental function; (2) the level of government funding; (3) the extent of government involvement or regulation; and (4) whether the entity was created by the government), the court reversed. Some of the employees of the business took oaths as animal control officers, and they performed police poser duties, such as euthanizing animals. The funding was primarily governmental, and the business had to follow some procedures set out by the interlocal member agencies. While the business was not established by government, balancing the four criteria led the court to conclude that the business/agency was covered by the public records act.
Soter v. Cowles Publishing, 162 Wn.2d 716 (2007) Following the death of a student, the school district contacted its attorney, believing that litigation might ensue. The attorney hired an investigator who interviewed witnesses in anticipation of a lawsuit. A claim against the school district was ultimately compromised. Cowles Publishing made a records request for various materials associated with the case, most of which had been prepared by the school district’s attorney or by the investigator acting on the attorney’s behalf. The school district sought guidance from superior court to determine whether the records had to be furnished to the paper. A divided Court concluded that the requested records were relevant to a controversy to which the school district was a party and the records would not have been available under the civil rules of pretrial discovery because they were protected by either the work product doctrine or they reflected attorney-client privileged communications. Also, the plain language of RCW 42.56.540 allows agencies to seek a judicial determination as to whether a requested public record must be disclosed. However, if an agency has improperly denied a requester access to a public record, per diem penalties apply for everyday that access was denied.
Zink v. City of Mesa, 140 Wn. App. 328 (2007) The Zinks made numerous and lengthy public records requests of the city. When the records were slow in coming, due to the volume of the requests and the limited size of the city staff, the Zinks sued. The trial court was sympathetic to the city, finding that, in view of the nature of the requests, the city had “substantially complied,” that compliance to the requests amounted to a “practical impossibility,” and that the requests amounted to unlawful harassment. On appeal, the Court of Appeals disagreed, finding that strict—not substantial—compliance was required. The city had limited the Zinks to one hour per day to review records; the Court held that that limit was not adequate. The Court further found that the city had disparately treated the Zinks, as it had no rules in place to allow its delays and limits on access; it does not matter that the city would have treated others similarly. The Court also found that the city’s inclusion of staff time in making diskettes and tapes of records was permissible.
Yousoufian v. The Office Of Ron Sims, 137 Wn. App. 69 (2007) [calculation of penalty] If a public agency fails to provide a nonexempt record for review or copying, it can face a penalty of between $5 and $100 for each day the record is withheld. How does the court determine where the penalty should be set in the range? The court here offered the following advice: “The minimum statutory penalty should be reserved for such “instances in which the agency has acted in good faith but, through an understandable misinterpretation of the PDA or failure to locate records, has failed to respond adequately.” Then, working up from the minimum amount on the penalty scale, instances where the agency acted with ordinary negligence would occupy the lower part of the penalty range. Instances where the agency’s actions or inactions constituted gross negligence would call for a higher penalty than ordinary negligence, and instances where the agency acted wantonly would call for an even higher penalty. Finally, instances where the agency acted willfully and in bad faith would occupy the top end of the scale. Examples of bad faith would include instances where the agency refused to disclose information it knew it had a duty to disclose in an intentional effort to conceal government wrongdoing and/or to harm members of public. Such examples fly in the face of the PDA and thus deserve the harshest penalties.”
Spokane & Eastern Lawyer v.Tompkins, 136 Wn. App. 616 (2007) [Courts not “agencies” covered by the public records act] A nonprofit corporation sought copies of correspondence from the Spokane Superior Court to the state and local bar associations. The request was denied and the nonprofit sued under the Public Disclosure Act. On review and citing earlier authority, the court denied the request, finding that the court was not an “agency” under the Public Disclosure Act and thus was not required to provide the requested letters.
Research & Defense Fund v. Community Development Association, 133 Wn. App. 602 (2006). The court reviewed the definition of an “agency” subject to the Public Records Act, concluding in this case that the 501(c)(3) organization possessed no material governmental attributes or characteristics, even though the entity leased space in a public building in a public park, and received substantial funding from the city. The court concluded that the entity was acting as an independent contractor and was not under the control of the city, and thus not covered by the PRA.
Bellevue John Does 1-11 vs. Bellevue School District No. 405, 129 Wn. App. 832, (2005). A newspaper sought school district investigative records concerning teachers, including the names of the teachers, alleged to have committed inappropriate conduct of a sexual nature, regardless whether, after investigation, that conduct was substantiated or not. Following notification, 37 teachers, for whom district investigations proved the alleged conduct unsubstantiated, sought protective orders, seeking to prohibit disclosure of the records and their names as an invasion of privacy. The court concluded that the name of a teacher who has been the target of an unsubstantiated allegation of sexual misconduct one that is not patently false is subject to public disclosure. When an allegation against a teacher is plainly false, as shown by an adequate investigation, that teacher’s name is not a matter of legitimate public concern. Investigative files with identifying information redacted will always be subject to disclosure. Although the newspaper prevailed in the release of some records, attorney fees were not awarded, as the paper prevailed against the action of the teachers, who had obtained protective orders, not the district.
Spokane Research & Defense v. City of Spokane, 155 Wn. 2d 89 (2005). [Public disclosure of records] Prejudgment disclosure of records does not moot the later review and award of penalties, if records had been improperly withheld at the outset. The merits of a claim for fees and penalties are based on the circumstances that existed at the time of the records request, which is not changed by subsequent disclosure of documents. It is not necessary that the person who made the initial records request be the one who caused the ultimate disclosure of the records in order to be the prevailing party for purposes of collecting a penalty for the improper denial of the records. A show cause order is optional, not mandatory, for entitlement to fees and penalties. Summary judgment may be used for the pursuit of a public records request/claim.
White v. Township of Winthrop, 128 Wn. App. 588 (2005). [Disclosure of health information/violation of right to privacy] Mayor disclosed health information to newspaper. Court rejected argument that disclosure represented disability discrimination under RCW 49.60.180(4) (there was no “colorable action” under the act). However, the disclosure may have violated the plaintiff’s common law right to privacy, if the disclosure was of a kind that would be highly offensive to a reasonable person, and is not of legitimate concern to the public. A jury should decide whether disclosure violated plaintiff’s right to privacy.
Sappenfield v. Department of Corrections, 127 Wn. App. 83 (2005). [Record requests by inmates] A Department of Corrections rule reserves the right to withhold agency records from inmates, except for the inmate’s own file and health records. Corrections has a published procedure for providing additional records to inmates: records requested by inmates are copied and mailed to the inmate, subject to a copying charge of 20 cents per page plus postage, payable in advance. An inmate challenged the department’s policy, arguing that the other records should be brought to him without charge, if he only wished to review the records. The court disagreed. While agencies must honor requests received by mail for copies of identifiable public records (RCW 42.17.290), the statute does not categorically preclude denying requests for direct inspection when necessary to preserve the records and its own essential functions. Correction’s policy is reasonable. Prison inmates have access without charge to their own personal records. Access to additional public records, however, can be obtained by means of copies mailed upon payment of a reasonable fee.
Sperr v. City of Spokane, 123 Wn. App 132 (2004). [Inspection of public records] Plaintiff sought to review criminal records that did not exist, and asked to personally search police records. Court held that person has no right to inspect or copy records that do not exist and city has no duty to create or produce a record that is nonexistent. Public disclosure act does not authorize indiscriminate sifting through an agency’s files by citizens searching for records that have been demonstrated not to exist.
Yousoufian v. Office of Ron Sims, 152 Wn. 2d. 421 (2004). Court of Appeals decision (114 Wn. App. 836 ) affirmed in part, reversed in part. Interpreting RCW 42.17.340(4), the court held that under the PDA penalties need not be assessed per record, and that trial courts must assess a per day penalty for each day a record is wrongly withheld. The court also held that the standard of review when the appellate courts look at PDA penalties assessed by the trail court is not de novo.
Koenig v. City of Des Moines, 123 Wn. App. 285 (2004). The case deals with a father’s request for all of the criminal case records dealing with a sexual assault on his minor daughter. The court reviewed the application of RCW 42.17.31901 (protecting the identity of child victims of sexual assault); 42.17.310(1)(d)&(e) (criminal investigative records and records disclosing the identity of crime victims); and 42.17.255 (discussing what is of “legitimate public concern”). The court ruled that the “highly offensive information” could be redacted from the records.
Hangartner v. City of Seattle, 151 Wn.2d 439 (2004). The court issued three primary rulings: (1) a government agency need not comply with an overbroad request; (2) a “litigation-charged atmosphere” does not necessarily constitute a “controversy” where the public agency fails to establish that there was any threat or reasonable anticipation of litigation; and (3) the attorney-client privilege is an “other statute” (under RCW 42.17.260(1)) that prohibits disclosing certain records through the PDA.
American Civil Liberties Union v. City of Seattle, 121 Wn. App. 544 (2004). This case dealt with an ACLU request for labor negotiation related documents. Construing RCW 42.17.260(1), the court ruled that an Open Public Meetings Act provision [RCW 42.30.140(4)(a)] allowing executive session meetings for labor negotiation sessions or labor negotiation strategy discussion does not translate into a public records exemption for records pertaining to labor negotiations. Concerning the RCW 42.17.310(1)(i) exemption dealing with preliminary drafts and the deliberative process, the court held that the term “intra-agency” does not subsume but is in addition to other forms of communication the exemption lists. The court reviewed whether certain collective bargaining records should be disclosed, and held that the city had established that disclosure of the records in question would be injurious to the deliberative or consultative function and inhibit the negotiation process.
Beuhler v. Small, 115 Wn.App. 914 (2003). After pointing out that the public records act does not apply to court or judicial records, the court held that a trial judge’s personal, work-related files containing a compilation of criminal sentences imposed by the judge in past cases and used by the judge to make sentencing decisions in current cases do not constitute judicial records subject to the common law right of public access.
Armen Yousoufian v. Office of Ron Sims, Court of Appeals (01/06/2003). The court reviews in detail the facts behind a delayed and negligent response to a request for public records disclosure. The court found fault with the county’s failure to respond in a timely manner and to properly coordinate disclosure responses by different departments. The court analyzed RCW 42.17.340(4) dealing with attorney fees and penalties, finding that certain deductions from requested attorney fees were proper, but remanding the case to the trial court for imposition of penalties that exceeded the minimum statutory amount. When dealing with attorney fee or penalty issues, review this decision carefully.
King County v. Sheehan, 114 Wn. App. 325 (2002). The state court of appeals ruled that a list of the full names – not merely the last names – of police officers is not exempt from public disclosure and must be disclosed upon request. The court also concluded “that a penalty of at least $5 per day is now mandatory where an agency erroneously withholds a public record, whether or not the agency acted in good faith reliance upon a statutory exemption that is not in fact applicable.”
Limstrom v. Ladenburg, 110 Wn. App.133 (2002). This is part of the ongoing saga of disclosure issues raised by Owen Limstrom in Pierce County. In this decision the Court of Appeals deals with disclosure of fact-gathering materials from criminal investigation files. The court ruled that disclosure of criminal records to a defendant’s criminal defense attorney pursuant to CrR 4.7 does not waive the work product exemption for those records as to other attorneys and parties outside a particular case.
O’Connor v. DSHS, 143 Wn.2d 895 (2001). Public records that are relevant to a matter in litigation are not exempt from disclosure under RCW 42.17.310(1)(j) if they are discoverable under CR 26.
Tiberino v. Spokane County, Office of the Prosecuting Attorney, 103 Wn. App. 680 (2000). This fascinating case held that in certain situations even city employee e-mails of a personal nature (not dealing with government business in any way) are public records, though exempt from disclosure if there is no legitimate interest of the public in the contents of the e-mails. The county’s e-mail policies and the county’s procedure for handling this disclosure request are instructive.
Ockerman v. King County, 102 Wn. App. 212 (2000). The two primary holdings of the case are clearly stated by the court. “We hold that RCW 42.17.320 does not require an agency to provide a written explanation of its reasonable estimate of time when it does not provide the records within five days of the request.” (at. p. 214) “There is simply nothing in the statute that requires public records to be provided peicemeal.” (at p. 219).
Smith v. Okanogan County, 100 Wn. App. 7 (2000). This case squarely holds that the state public records disclosure law does not require that an agency create a document when responding to a disclosure request. The court followed the interpretation of the federal Freedom of Information Act provided by a 1975 U.S. Supreme Court decision.
Spokane Research & Defense Fund v. City of Spokane, 99 Wn. App. 452 (2000). The Court ruled that the performance evaluation of the Spokane City Manager must be disclosed. The Court discussed RCW 42.17.310(1)(b) and employee priavcy, but concluded that there is a legitimate public interest in having access to that information. This decision does NOT overturn the basic rule set down in Dawson v. Daly that performance evaluations that do not discuss specific instances of misconduct are generally exempt from disclosure.
Limstrom v. Ladenburg/Pierce County, 98 Wn. App. 612 (1999). The court discussed an agency’s ability to provide an estimate of the time needed to comply with a public records disclosure request (RCW 42.17.320). The court found that the plaintiff’s challenge to the estimate of time needed to comply was groundless. There was no evidence that the plaintiff needed to file suit pursuant to RCW 42.17.340(2) in order to compel disclosure (the county had actually ended up providing the documents in half the time that had been originally estimated). This is a good decision, supporting an agency’s ability to make a reasonable estimate of the time needed to comply with a disclosure request.
Cowles Publishing Co. v. Spokane, 139 Wn.2d 472 (1999). In this clarification of the Newman v. King County decision regarding disclosure of “open” police files, the final paragraph of the case provides an excellent summary of the holding: “The “investigative records” exception to the PDA does not provide categorical exemption from disclosure to police investigative records in cases where the suspect is arrested and the case referred to the prosecutor. In such cases, police incident reports are presumptively disclosable upon request, unless it can be shown that nondisclosure in a given case is essential to effective law enforcement in that particular case. However, jailhouse and arrest booking photos are exempt from disclosure under RCW 70.48.100(2).”
State v. Jones, 96 Wn. App. 369 (1999). The court reversed a trial court decision which had held that internal investigation files of a police department review board hearing concerning a police shootout were not discloseable to a defendant charged with assault stemming from the shootout. The court reviewed RCW 42.17.310(1)(d) and cases interpreting that statutory exemption, then sent the matter back to the trial court because the record did not show that the trial court had “heard any testimony or made any findings on the issue of whether nondisclosure of the shooting review board material is essential to effective law enforcement.” The court also pointed out that this discovery request was not a typical request for disclosure to the public at large. In this discovery context the court has the option through CR 26(c) to issue a protective order that would limit how the disclosed materials could be used.
Concerned Ratepayers Assoc. v. PUD No. 1, 138 Wn.2d 950 (1999). The state supreme court applied the definition of “public record” found at RCW 42.17.020(36), particularly the term “used” in that definition, to a document containing technical specifications for a generator proposed to be installed at a power plant. Even though the document was never in the possession of the PUD, it had been referred to and seen by those planning the construction of the plant and is thus potentially a “public record.” The case was remanded to the trial court for further proceedings.
Ignacio Guillen v. Pierce County, 96 Wn. App. 862 (1999). In this case the court determined that the entire accident history of a county intersection was not exempt from discovery by virtue of 23 U.S.C. §409, which provides that reports, surveys, schedules, lists, or data compiled or collected for the purpose of identifying, evaluating, or planning the safety enhancement of potential accident sites, hazardous roadway conditions, or railway-highway crossings in order to utilize federal funds, shall not be subject to discovery or admitted into evidence in a state court proceeding or in an action for damages.
ACLU v. Blaine School Dist. No. 503, 95 Wn. App. 106 (1999). The court held that when a public agency makes an unreasonable interpretation of the public disclosure act and refuses in bad faith to provide documents as required, a court abuses its discretion when it awards merely the minimum statutory penalties to the prevailing party. Any public agency evaluating potential penalties under RCW 42.17.340 (4) needs to review this case carefully.
Limstrom v. Ladenburg, 136 Wn.2d 595 (1998). In this public records case the state supreme court was asked to determine the scope of the right afforded a citizen under the public records act to inspect criminal litigation files created and held by a prosecuting attorney. The court held that a citizen has the right to inspect documents, or portions of documents, in a public attorney’s criminal litigation file, unless the documents requested would not be available to a party under the discovery rules set forth in the civil rules for superior court, or the information is otherwise protected from disclosure under the state Criminal Records Privacy Act or other statutory provision.
Tacoma Public Library v. Woessner, 90 Wn. App. 205 (1998). In this public disclosure case, a party requested copies of personnel reports for employees of the Tacoma Public Library. The library provided redacted copies from which the names and identification numbers of employees had been deleted. The court held that the names of employees were not protected under RCW 42.17.310(1)(b), but that disclosure of employees’ identification numbers was within the scope of the personal information exemption because it would lead to access to other exempt information such as home addresses, phone numbers, and social security numbers and would serve no public purpose.
Newman v. King County, 133 Wn.2d 565 (1997). In this 5-4 decision, the State Supreme Court concluded that under RCW 42.17.310(1)(d), the entire contents of an active and open criminal investigation file are categorically exempt from public disclosure regardless of the nature of the contents of the file. But see Cowles Publishing Co. v. Spokane (10/1999) for an important clarification of this decision.
ACLU v. Blaine School District No. 503, 86 Wn. App. 688 (1997). This decision interprets RCW 42.17.270, the public records disclosure provision which states, in part, that “Agencies shall honor requests received by mail for identifiable public records unless exempted by provisions of this chapter.” The court concluded that the statute requires public entities to mail responses to public records requests, as long as the records are identifiable and not exempt. The Blaine School District will be paying fines and attorney fees to the ACLU over this attempt to take a narrow reading of the public records disclosure statutes.
Amren v. City of Kalama, 131 Wn.2d 25 (1997). This case deals with a public disclosure request for a report addressing complaints made about the city’s chief of police. The court held that RCW 42.17.295 (which exempts from disclosure certain documents related to allegations of employee misconduct) does not apply to local governments, only to state agencies. The court decision also deals with damage awards under RCW 42.17.340(4) in a way which should make cities pause to carefully review all denials of disclosure.
Lindberg v. Kitsap County, 82 Wn. App. 566 (1996). We now finally have a case which discusses the right of the public to inspect and copy site, drainage and building plans submitted by a project applicant to a local governmental body (in this case, Kitsap County). The court reviews the “fair use” exception and federal copyright protection, stating: “To determine whether the fair use doctrine applies, a court evaluates the nature of the copyrighted work, the purpose and character of the use, the amount and substantiality of the work used, and the use’s effect upon the potential market for the work. It “is an equitable rule of reason…and each case raising the question must be decided on its own facts.” Key Maps, Inc. V.J.J. Pruitt, 470 F. Supp. 33, 37 (S.D. Tex. 1978).” Ruling in favor of the individuals who requested to copy the drainage and site plans, the court also remanded the case to the trial court for review of the damages and attorney fees awarded to the successful plaintiffs, implying that because access was denied to a number of specific records, the penalties should not be combined.
Personal Restraint of Maxwell, 81 Wn. App. 705 (1996). This case deals with RCW 42.17.314, the limitations and procedure for police to access electrict utility records.
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