Public Records Disclosure Caselaw Update

The list below summarizes the significant state appellate cases concerning public records disclosure which have been decided since March 1996, the publication date of the MRSC's "Public Records Disclosure for Washington Cities and Towns."

Zink v. City of Mesa, ___ Wn. App. ___, (8/23/2007) [Public disclosure]. 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, ___ Wn. App. ___ (2/5/2007) [Public records/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 #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.

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 (4/19/2005). [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 (9/2/2004). [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, decided 1/6/03. 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, Court of Appeals, decided 11/12/02. 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, 96 Wn. App. 568 (1999). 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 (November 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 (decided 10/99) 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 electrice utility records.