Second Update on Public Disclosure: Public Bidding Documents, e-mail, GIS Data, Public Employment Records
Reprinted with permission of author
by Kyle J. Crews
Assistant City Attorney, City of Tacoma
From Legal Notes, MRSC Information Bulletin No. 491
October 1995
This paper will serve as a follow-up to the paper entitled, "Update on Public Disclosure After PAWS, GIS Data, Litigation Disclosure; Trade Secrets Act," presented by Laura Flinn Connelly, Assistant City Attorney of Spokane, at the Washington State Association of Municipal Attorneys' Spring Conference, in April of 1995. To reiterate, a theme in that paper, the Washington State Supreme Court's holding in Progressive Animal Welfare Society (PAWS) v. the University of Washington, 125 Wn.2d 243, 884 P.2d 592 (1994), found that the Public Disclosure Act (the Act), Chapter 42.17,RCW, passed in 1972, provides a mandate for the broad disclosure of public records. A major portion of the court's ruling was that the Act contains no general exemption, but provides only "specific statutory exemptions from disclosure for those particular categories of public records most capable of causing substantial damage to the privacy of citizens or damage to vital functions of government if they are disclosed. . ." p. 258. Citing In re. Rosier, 105 Wn.2d 606, 621, 717 P.2d 1353 (1986), the court went on to say:
The Public Records Act begins with a mandate of full disclosure of public records; that mandate is then limited only by the precise, specific, and limited exemptions which the Act provides.
If a document is a "public record," as defined by RCW 42.17.020(27), which includes "any writing containing information relating to the conduct of government or the performance of any governmental or proprietary function," and the document meets the definition of the term "writing" as defined by RCW 42.17.020(29), which includes every other means of recording any form of communication representation, including documents, pictures, computer tapes or disks, sound recordings, etc., and such a public record of writing is not specifically exempted by the Act, then full disclosure upon request is obligatory. The Act does exempt broad categories of records and there are specific statutes that allow confidentiality of the specified records. After PAWS, however, other than the specific exemptions to disclosure, there is no independent source of exemptions for public disclosure notwithstanding the language of RCW 42.17.330. This paper will review four categories of "public records" and their current legal status to being subject to full public disclosure under the Act.
I. Public Bidding Disclosure Requests
Now and then citizens, but more likely competitors, will ask for the public documents involved in the bidding of public contracts or requests for proposals (RFPs). In these cases, the request would be premised on the theory that the documents for public bidding constitute a public document containing information relating to the conduct of government or the performance of any governmental or proprietary function, as defined by RCW 42.17.020(27). Without a showing that the bid documents fall under the exemptions set forth in RCW 42.17.310(1), the documents would be available for public inspection upon proper request. The burden of proving that the records should not be disclosed is on the public agency. See Laborers Int'l. Union v. Aberdeen, 31 Wn. App. 445 (1982). Cities cannot promise to provide confidentiality for such records without having the statutory authority to do so. See Van Buren, et al., v. Miller, et al., 22 Wn. App. 836 (1979). There is, of course, no specific exemption under RCW 42.17.310 that can be used to exempt public bidding records relating to municipal projects. More generally, however, the exemption found in RCW 42.17.310(1)(h), covering "valuable formulae, designs, drawings, and research data obtained by any agency within five years of the request for disclosure when disclosure would produce private gain and public loss," can be used to attempt a partial, if not full, disclosure exemption. Since the term "private gain and public loss" is in the conjunctive, it would be a rare exception where the disclosure of a public bid document could produce a private gain and a public loss at the same time. As touched on in the PAWS case, and discussed in Laura Flinn Connelly's article, there also may be separate statutes that will allow an exemption of the public record from the Act. See RCW 42.17.260(1). On this issue, the court in PAWS said, on page 261:
In general, the Public Records Act does not allow withholding of records in their entirety. Instead, agencies must parse individual records and must withhold only those portions which come under a specific exemption. Portions of records which do not come under a specific exemption must be disclosed. RCW 42.17.310(2)
There is an exception to this redaction requirement. The 'other statutes' exemption incorporates into the Act other statutes which exempt or prohibit disclosure of specific information or records. RCW 42.17.260(1). In other words, if such other statutes mesh with the Act, they operate to supplement it. However, in the event of a conflict between the Act and other statutes, the provisions of the Act govern. RCW 42.17.920. Thus, if another statue (1) does not conflict with the Act, and (2) either exempts or prohibits disclosure of specific public records in their entirety, then (3) the information may be withheld in its entirety notwithstanding the redaction requirement. The rule applies only to those exemptions explicitly identified in other statues; its language does not allow a court 'to imply exemptions but only allows specific exemptions to stand'. Brouillet v. Cowles Pub'g Co., 114 Wn.2d 788, 800, 791 P.2d 526 (1990).
In the case of public bid documents, the "other statutory exemption" would most likely come under the Uniform Trade Secrets Act, Ch. RCW 19.108. A "trade secret" defined under the Uniform Trade Secrets Act, RCW 19.108.010 et seq., includes a formula, pattern, compilation, program, device, method, technique, or process that:
(a) Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and
(b) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
RCW 19.108.010(4)
To be classified a "trade secret," the information must not be readily ascertainable by proper means from another source, including the product itself. Machen, Inc. v. Aircraft Design, Inc., 65 Wn. App. 319, 828 P.2d 73 (1992). See, also, Boeing Co. v. Sierracin, Inc., 108 Wn.2d 38, 738 P.2d 665 (1987). There could be substantial economic value derived from information in the public bid document or RFP, being not generally known to the specific bidder's competitors. In the past, if a bidder has made serious efforts to maintain its confidentiality, a strong argument could be that at least certain portions of the bidding documents would be exempt under the Public Disclosure Act because of the Uniform Trade Secrets Act (USTA). Pertinent to this discussion of public bid documents is the discussion in the PAWS case of the State Uniform Trade Secrets Act (UTSA) RCW Ch. 19.108. The court said, at page 262, that UTSA is qualified as an "other statutes exemption," under RCW 42.17.260(1). A careful review of the bidding or RFP documents under both the Public Disclosure Act and the UTSA should be undertaken to determine whether all or portions of the material shall be disclosed.
The UTSA also provides:
In appropriate circumstances, affirmative acts to protect a trade secret may be compelled by court order. RCW 19.108.020(3)
The court in the PAWS case stated that the "other statute" exemption may operate as an independent limit on disclosure of portions of records at issue that even had a potential economic value. The Supreme Court additionally quoted the recently enacted statute RCW 4.24.601, (Laws of 1994, Ch. 42, Section (p. 130) which states, in part:
. . .The legislature also recognizes that protection of trade secrets, other confidential research, development, or commercial information concerning products or business methods promotes business activity and prevents unfair competition. Therefore, the legislature declares it a matter of public policy that the confidentiality of such information be protected and its unnecessary disclosure be prevented.
Thus, it would appear that a court would look at the material in the public bid document and RFPs that are claimed to be trade secrets and, if such material qualifies under RCW Ch. 19.108, the burden would be placed initially on the City to support such qualification. In this writer's opinion, that would be an extremely heavy burden to bear. Only that material that does qualify under the Trade Secrets Act could be deleted from those portions of the materials that are not exempt, and then only if there was not conflict when the Public Disclosure Act, specifically, RCW 42.17.920.
II. Public Disclosure of e-mail
Most city and town governments today have computer systems and most systems have the ability to generate electronic mail ("e-mail"), any writing containing information relating to the conduct of government or the performance of any governmental or proprietary function. E-mail meets the statutory definition of a writing, which includes, but is not limited to, "magnetic or punchcard, disks, drums, diskettes, sound recordings and other documents, including existing data compilations from which information may be obtained or translated." Truly, one would be hard pressed to argue that existing e-mail is not open to public disclosure, unless it is otherwise exempted. Such disclosure can lead to severe public embarrassment, if not worse. One can remember the recent e-mail message, left to be found, by Officer Lawrence Powell of the Rodney King beating case: "Oops! I haven't beaten anyone so bad in a long time." Given e-mail's availability to disclosure, municipalities should take care in instructing employees in the proper use and purposes of e-mail. The City of Tacoma has formulated a small pamphlet, entitled "E-Mail Etiquette," that is made available to all employees who have computers with e-mail capability. The pamphlet, in part, attempts to make this type of business communication more business-like.
Depositing improper e-mail messages in the "waste-paper basket" may not be the solution. At the recent Civil Litigation Institute, sponsored by the Washington State Bar Association in April of 1995, Ms. Joan E. Feldman presented a paper entitled "Gold Mines and Minefields: The Pursuit of Electronic Mail and Computerized Data in Discovery." Ms. Feldman was referred to as a "1990s computer gum-shoe" by the Seattle Times. An issue set forth in her paper was that commonly used operating systems, such as DOS, can "delete" files, but cannot totally erase them. So there is the specter that a "cyber sleuth" will have the ability to go back and find e-mail that, for all intents and purposes in the city employee's mind, had been erased. Obviously, this would not be a common occurrence in a citizen's request for public documents under RCW Ch. 42.17, but the potential exists and city employees should be instructed accordingly.
III. Public Disclosure of Geographic Information Systems ("GIS")
As discussed in Laurie Flinn Connelly's paper, various cities in the state have been developing Geographic Information Systems (GIS), which have the ability to map a city and include a substantial amount of geographic and spatial data in the system. Municipalities which have invested millions of dollars and countless hours of labor in setting up their GIS files, for the most part, do not want to give the information out free with minimal costs associated with providing copies pursuant to RCW 42.17.300. The argument for non-disclosure has, in part, been based upon the specific exemption under RCW 42.17.310(h), which again states:
(h) Valuable formulae, designs, drawings, and research data obtained by any agency within five years of the request for disclosure when disclosure would produce private gain and public loss.
Some, if not all, of the questions the cities have been struggling with over the request for disclosure of GIS data have been answered, albeit at the Superior Court level in the recent case of Thomas Drummond v. City of Bellevue, King County Superior Court Cause No. 93-2-22537-7. Representing the City of Bellevue were Assistant Attorneys Lori Molander Riordan and David E. Kahn. The plaintiff, Thomas Drummond, Mayor of the newly-incorporated City of Newcastle, was represented by Stephen K. Strong of the Seattle firm of Bendich, Stobaugh and Strong. In 1993, Drummond requested Bellevue's GIS files and data bases under the Public Disclosure Act. Bellevue provided him some of the information he requested, but this was not to Mr. Drummond's satisfaction. Finally, Bellevue offered to make all of the GIS data available in the electronic format he had requested, on the condition that he would not release it to third parties or use it for commercial purposes, noting again the city's contention that the GIS data files were not published, or, even if so they were exempt under RCW 42.17.310(1)(h). Drummond refused to sign any limitation on disclosure. The litigation proceeded to cross summary judgment motions. Bellevue argued that data compiled cost almost $5 million, and that the data was continually being maintained and updated. Bellevue made the argument that it had taken reasonable precautions to protect the confidentiality of the GIS records and that no information on the system was allowed to be disclosed without providing that: (1) disclosure to third parties was prohibited, (2) no commercial use of electronic was permitted, and (3) the City of Bellevue maintained exclusive ownership of the GIS. Bellevue additionally argued that, under PAWS, the State Uniform Trade Secrets Act (UTSA) qualified as another statute for the purposes of the other statute exemption, and, therefore, the GIS is a trade secret. Bellevue argued that public disclosure of the GIS could not be ordered. Using the recent case of Servais v. Port of Bellingham, 72 Wn. App. 183, 864 P.2d 4 (1993), review granted 124 Wn.2d 1001 (1994), Bellevue also claimed that its GIS data was exempt as a valuable formula and research data under RCW 42.17.30(h). In this case, the Port of Bellingham had withheld from public disclosure a report of financial data consisting of cash flows, occupancy rates, room rates, and revenue figures for potential hotel developments, and argued that the correct definition of research data is "careful or diligent search. . . a collecting of information about a particular subject." The court agreed with the Port, stating:
The statute contains no significant qualification period. In fact, 'valuable formula designs and drawings' are not necessarily scientific in nature, nor is 'research data' as the term is defined generally. . .
Bellevue argued that the facts of its GIS case were similar to those in Servais, and asked the court to reach the same conclusion, that the GIS data was exempt from disclosure, under the valuable formulae and research data exemption. Bellevue also argued that the Uniform Trade Secrets Act, RCW Ch. 19.108, forbids the disclosure of the GIS information under the broad definition of a trade secret. RCW 19.108.010(4). With the trade secrets definition, Bellevue argued that the GIS was a valuable compilation of information, not merely an aggregation of information. The GIS has the power to manipulate the various layers of data at the direction of a skilled GIS operator and produce customized products that can combine in one map several or many layers of data to product customized products or maps. Bellevue also argued that the GIS was a viable economic asset that has a value to municipalities and other private industries in allowing the almost instantaneous showing of detailed zoning boundaries, utility lines, roadways, and other types of information. It was argued that the city had made reasonable efforts to protect the secrecy of the GIS data to allow it to continue in a status as a "trade secret." On the other hand, the plaintiff Drummond beat the familiar drum that the Public Records Act was intended to assure full access to government information, regardless of the method of storing the information, and that the Act should be liberally construed. Quoting from the PAWS case, Drummond argued that the purpose of the Act was to provide "full access to information concerning the conduct of government on every level. . . as a fundamental and necessary precondition to the sound governance of a free society." The argument was made that the GIS was a "public record" under RCW 42.17.020(27) and a "writing" under RCW 42.17.020(29), and noted that the legislature had rejected proposed legislation, House Bill 1506 (1995-Reg. Sess.), that would have exempted GIS data files from disclosure pursuant to the failed Act. Additionally, the plaintiff argued that there is no difference in the exemption criteria of the Public Disclosure Act for paper records that are converted to electronic documents. Bellevue, in its answer to interrogatories, admitted that the individual data files that form the foundation of the GIS would not be exempt from disclosure if requested in their original format.
In its response to Bellevue's claim that the GIS came under the exemption requirement of RCW 42.17.310(1)(h), Drummond argued that the City of Bellevue could not show that the GIS files were obtained within the last five years. Defendant argued, then, that Bellevue had failed to meet its burden of establishing that the GIS data files were protected from disclosure, since it was apparent that some information did go into the GIS data files more than five years ago. In response to the argument that Bellevue's GIS was a trade secret under RCW Ch. 19.108, the plaintiff said that Bellevue had the burden of proving the records are exempt under a statute exempting specific records from disclosure and, further, argued that the Trade Secrets Act did not prevent disclosure of "specific information or records" if it was interpreted, as Bellevue argued, to apply to any compilation of governmental information. Plaintiff argued that Bellevue had not shown the GIS data files had independent economic value, and that the Washington State Supreme Court, in Hearst Corp. v. Hoppe, 90 Wn.2d 123, 580 P.2d 246 (1978), had said that the governmental entity must prove that disclosure would cause the harm which the exemption was intended to prevent. Plaintiff stated that the reason for protecting trade secrets was that such protection "promotes business activity and prevents unfair competition," and further argued that Bellevue had made no effort and showing that GIS records prevented any business activity whatsoever. The claim was, then, that GIS data files were not shown to be a "valuable economic asset."
Finally, Drummond argued that, under the law of trade secrets, it is necessary for a business that owns the trade secret to keep it secret. It was claimed that Bellevue did not meet the standards of keeping the GIS data secret enough to meet the standards of protection granted by the Trade Secrets Act.
Oral argument incorporating the above contentions of Mr. Drummond and the City of Bellevue were heard on September 15, 1995, before King County Superior Court Judge George Finkle. (See "Order Granting Partial Summary Judgment and Denying Defendant's Motion for Summary Judgment," Appendix I). Judge Finkle ruled that, under the Public Disclosure Act, the GIS data systems of the City of Bellevue were subject to full public disclosure. Judge Finkle stated, in part, that GIS data-base systems did not constitute a trade secret, stating that, even if the GIS data base were a trade secret, the Trade Secret Act would conflict with the Public Records Act and thereby be superseded under RCW 42.17.920 (Act controls over other conflict laws). Additionally, the judge ruled that exemption under RCW 42.17.310(1)(h) (valuable formulas, etc.) did not apply.
IV. Public Disclosure of Governmental Personnel Records
The Public Disclosure Act exempts from disclosure certain information concerning public agencies. RCW 42.17.310(1)(b) exempts "personal information in files maintained for employees, appointees or elected officials of any public agency to the extent the disclosure would violate their right to privacy."; § 42.17.310(1)(e) exempts all applications for public employment, including the names of applicants, resumes, and other related materials submitted with respect to an applicant; and § 42.17.310(1)(u) exempts the residential addresses and residential telephone numbers of employees or volunteers of a public agency which are held by the agency in personnel records, employment or volunteer rosters, or mailing lists of employees or volunteers. These exemptions were surveyed in an article by Chip Holcomb, Senior Counsel Assistant Attorney General, entitled, "Overview of Public Records," presented at the June 1993 WSAMA conference. That article discussed a major case on the right of employee privacy under RCW 42.17.310(1)(b), Dawson v. Daly, 120 Wn.2d 782 (1993). This writer has not found any further Washington State cases on these specific exemptions. Another excellent paper on the subject of employee privacy was submitted by Cathy Parker, Assistant City Attorney, entitled "Selected Issues Regarding Employee's Right to Privacy," at the WSAMA 1995 Conference.
Concerning this issue of employee privacy, the Tacoma Public Library Board of Trustees, recently filed, pursuant to RCW 42.17.330, an order for the court protection of public records involving certain payroll documents of City Library staff. A union official, Carolyn Woessner, had made a public document request for payroll documents, referred to as JE-5 and JE-7 reports. The requested reports contain personal financial information, coupled with employee names and identification numbers. The original request was denied by the Library management in that unredacted disclosure would violate employee privacy interests. Ms. Woessner insisted that she be provided with full information. Thus, the Library filed the lawsuit filed for a court order for protection, declaring that the names and the employee numbers were exempt from disclosure. Named as defendants were Ms. Woessner, individually and as a representative of the Library union, and the Union AFL-CIO Local 120-L. Additionally, it was argued that the sharing of such information with specific names of employees would cause disruption and conflict among the staff because of the comparison of wages and benefits. In addition, disclosure of the full reports would expose the amount of sick leave particular employees have used, and could lead to discussions to discussions and conclusions about employee disabilities or other personal issues. The Library, then, by filing its lawsuit, asked the court to examine the reports in camera and enjoin the disclosure of the unredacted reports pursuant to RCW 42.17.330. The Library claimed it had a right to expunge the staff names and employee numbers from the records under the exemption requirements of RCW 42.17.330(1)(b) since disclosure would violate the employee's right to privacy. Previously, in the PAWS case, the Supreme ruled that disclosure of an employee's social security number would be highly offensive to a reasonable person and not of legitimate concern to the public, and therefore exempt from disclosure. The Court of Appeals likewise ruled that RCW 42.17.310 protects from disclosure employee names and identifying information contained in personnel files produced in a wrongful termination case. Ollie v. Highland School Dist., 50 Wn. App. 639, 749 P.2d 757, review denied 110 Wn. 2d 1040 (1988). However, previously, in Laborers Int'l Union v. Aberdeen, 31 Wn. App. 445, 642 P.2d 418 (1982), where a union sought to inspect unredacted payroll records that a private contractor had filed with a city to show compliance with the Davis-Bacon Act, the court held that the records were not exempt from public disclosure under the exemption contained in RCW 42.17.310(1)(d), but did not consider whether the records would be exempt under RCW 42.17.310(1)(b). Since there was no specific case on point, the Library argued that, under Dawson v. Daly, 120 Wn.2d 782, 845 P.2d 995 (1993), the Federal Freedom of Information Act (FOIA) is relevant when interpreting Washington's Public Disclosure Act. Exemption 6 of FOIA protects from disclosure "personnel files . . . the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. 552(b)(6).
There have been recent federal court decisions on point in discussing this comparable exemption. In Painting Industry of Hawaii Market Recovery Fund v. U.S. Air Force, 26 F.3d 1479 (9th Cir. 1994), the Air Force resisted efforts to obtain lists that connected employee names to occupational classification, wages, and wage deductions. The Ninth Circuit concluded that it was beyond dispute that this type of information is normally considered private. In Sheet Metal Workers Local 9 v. U.S. Air Force, ___F.3d __, (10th Cir. 1995) (decided August 25, 1995), the Air Force sought judicial review of a lower court order requiring the disclosure of harshly-deleted payroll records. The Tenth Cir. Court of Appeals agreed with the Air Force that the employee names were non-disclosable under Exemption 6. The courts emphasized that the privacy of employees is protected from unwarranted invasion by Exemption 6 of the FOIA encompasses the individual's right to control information concerning his or her person and to protect that information from being used by persons other than the particular requester. These federal cases still must be read with the admonition from the Dawson case, at page 795: "that a person's right to privacy is violated 'only if disclosure of information about the person: (1) Would be highly offensive to a reasonable person, and (2) is not of legitimate concern to the public.' Under this provision, the use of test that balances the individual's privacy interest against the interest of the public in disclosure is not permitted. Brouillet, 114 Wn.2d at 798."
The Library also argued that no legitimate interest is served by disclosing to the public names and the employee numbers on payroll reports. The exemption requires that the Library establish that no legitimate interest is served by disclosing the full informational payroll reports. The Library argued that the public interest in gaining access to names and employee numbers was negligible when weighed against the privacy concerns of the employees.
On September 22, 1995, the Tacoma Public Library Board's motion for order of court protection pursuant to RCW 42.17.330 was heard by Pierce County Superior Court Judge Thomas Sauriol. The Union motion to be dismissed as a party was granted, leaving Ms. Woessner, as defendant in her individual capacity, and not as a union representative, to argue alone why the material should have been disclosed. Judge Sauriol took that matter under advisement and on September 27, 1995, ruled that the information in the requested records involved a substantial privacy interest and such disclosure would violate RCW 42.17.310(1)(b). The judge said his belief was buttressed by the above-cited federal Freedom of Information Act decisions. Counsel for Ms. Woessner stated she would appeal the outcome.