Update on Public Disclosure After PAWS, GIS Data, Litigation Disclosure; Trade Secrets Act
Reprinted with permission of author
by Laurie Flinn Connelly
Assistant City Attorney
City of Spokane
From Legal Notes, MRSC Information Bulletin No. 459
April 1995
Since its passage in 1972, the public records portion of the Public Disclosure Act, Chapter 42.17, RCW, (hereinafter Public Records Act) has been interpreted by the Washington Supreme Court and Courts of Appeals in a series of cases. In general, the courts have held that agencies were required to disclose any public record upon request, unless the record fell within certain specific exemptions. Their most recent cases have reaffirmed that view on disclosure, clarified several exemptions, and raised questions about the scope of other exemptions. Computer information systems, such as the geographic information systems, pose new issues in complying with the Act.
In Progressive Animal Welfare Society (PAWS) v. The University of Washington, 125 Wn.2d 243 (1994), the court's strongly worded opinion emphasize the importance of public access to records and the requirement that records be disclosed unless they are specifically exempted. Factually the case is very straightforward. In 1991, PAWS requested a copy of an unfunded grant proposal from the University through a public records request. The proposed project involved animal study with monkeys.
The records at issue included the proposal itself as well as a document generated by the review process of the National Institutes of Health. Grant proposals are reviewed by a confidential peer review process with the scientists' comments incorporated into a formal written evaluation known as a "pink sheet." The pink sheet recommends approval or disapproval, contains a funding rank, and is given to the applicant. The University denied the request for disclosure and PAWS sued. PAWS conceded that it was not entitled to material which might reveal valuable formulae, designs, drawings and research data, trade secrets or other confidential data. The trial court excised the valuable formulae and research data material, but ordered the remainder of the documents disclosed. Both parties appealed.
1. Courts will consider the policy underlying the Public records act when evaluating an agency's response to a records request.
The court describes the Public Records Act as a "strongly worded mandate for broad disclosure of public records." PAWS, supra., Spokane Police Guild v. Liquor Control Board, 112 Wn.2d 30, 33, 769 P.2d 283 (1989), Hearst Corp. v. Hoppe, 90 Wn.2d 123, 127, 580 P.2d 246 (1978). The purpose of the Act is facilitate disclosure, not to prevent it. Access to public records is a tool which is necessary to preserve our democratic form of government.
Accordingly, to achieve that purpose, the Act's disclosure provisions must be liberally construed and its exemptions narrowly construed. PAWS, 125 Wn.2d at 251. The Act itself directs courts to consider the policy favoring access.
Courts shall take into account the policy of this chapter that free and open examination of public records is in the public interest, even though such examination may cause inconvenience or embarrassment to public officials or others.
RCW 42.17.340(3) (Emphasis added) An agency which resists disclosure bears the burden of proving that records or portions of records are within the scope of an exemption. RCW 42.17.340.
2. When an agency receives a request for records, it must determine if the record is a "public record" and then whether the record contains any information which is exempt from disclosure.
The Act defines public record very broadly.
"Public record" includes any writing containing information relating to the conduct of government or the performance of any governmental or proprietary function prepared, owned, used or retained by any state or local agency regardless of physical form or characteristics.
"Writing" is further defined by the act to include
handwriting,.. printing,..photographing and every other means of recording any form of communication or representation, including letters, words, pictures, sounds, or symbols, and all papers, maps,..and other documents.
RCW 42.17.020(26). While this broad definition will include most records held by an agency, the court did find in Dawson v. Daly, 120 Wn.2d at 789 that requests for verification of employment in an employee's personnel file were not public records.
As the court's opinion in PAWS illustrates, the requested public records are then reviewed to determine if they contain any information which is exempted from disclosure by the Act or other acts. The following exemptions are the subject of the recent cases.
3. Personal information of employees, RCW 42.17.310(1)(b).
The Act exempts from disclosure "personal information in files maintained for employees. . . of any public agency to the extent that disclosure would violate their right to privacy." While this exemption was not applicable in PAWS, the court opined, in dicta, that disclosure of an employee's Social Security number would be highly offensive to a reasonable person and is not of legitimate concern to the public. Residential addresses and telephone numbers of personnel are also specifically exempt under another section. RCW 42.17.310(1)(u).
4. "Valuable formulae" or "research data" exemption, RCW 42.17.310(1)(h):
"Valuable formulae, designs, drawings, and research data" which an agency obtains within five years of the request for disclosure are exempt when disclosure would produce private gain and public loss.
The purpose of this exemption is to prevent private persons from using the Act to appropriate potentially valuable intellectual property for private gain. PAWS, 125 Wn.2d at 255. Although PAWS conceded this exemption applied to some of the material, it disputed the scope of the exemption asserting that the trial court excised too much material. The court held that the term "research data' includes not only raw data but also the guiding hypotheses that structure the data, and withholding of the material was upheld.
This exemption was also invoked by the Port of Bellingham in denying disclosure of financial data, a cash flow analysis, for potential Port developments. Servais v. Port of Bellingham, 72 Wn.App. 183 (1993). The Port had commissioned the data in order to assist in negotiating leases of its property. The court of appeals upheld the denial of disclosure and found specifically that the financial data was within the exemption and that disclosure would produce private gain and public loss.
5. "Deliberative process" exemption, RCW 42.17.310(1)(i)
The court relied on its previous decisions which have interpreted this exemption very narrowly. This exemption only applies to documents which are part of a "deliberative or policy-making process' Hearst v. Hoppe, 90 Wn.2d 123, 133, 580 P.2d 246 (1978). To rely on this exemption, an agency must show
that the records contain predecisional opinions or recommendations of subordinates expressed as part of a deliberative process; that disclosure would be injurious to the deliberative or consultative function of the process; that disclosure would inhibit the flow of recommendations, observations, and opinions; and finally, that the materials covered by the exemption reflect policy recommendations and opinions and not the raw factual data on which a decision in based.
PAWS, 125 Wn.2d at 256. In addition, this protection ceases when the policies or recommendations are implemented. The court held that the unfunded grant proposal did not fit within the exemption, but the "pink sheets" did. They foster a deliberative process, and are exempt from disclosure under this provision while they pertain to an unfunded grant proposal. However, factual data on the pink sheets must be disclosed.
6. Exemption because examination would not be in the public interest or would substantially and irreparably damage vital governmental functions. RCW 42.17.330.
In Dawson v. Daly, 120 Wn.2d at 793, the Supreme Court held that RCW 42.17.330 created an independent basis upon which a court, not an agency, could exempt documents from disclosure. The court had to find that examination of the record was not in the public interest and would substantially and irreparably damage any person or vital governmental functions. In PAWS the court rejects this holding and states this is merely a procedural section which does not create any substantive exemption. In the opinion, the court discusses at length the structure of the Act which contains specific exemptions, but does not contain any general exemptions. The opinion refers to the language in Dawson v. Daly in a footnote as dicta.
Despite the court's characterization, the University was not alone in reading Dawson as recognizing that section as a substantive exemption. Division One of the Court of Appeals, relied upon Dawson for that proposition in Brown v. Seattle Public Schools, 71 Wn.App. 613 (1993).
The court reiterates the policy and purpose of the act to promote full disclosure as well as legislative action to restrict exemptions to the specific exemptions. They reject the position that judges have the discretion to interpret section .330 as a source of substantive exemptions. PAWS, 125 Wn.2d at 257-261.
7. Other Statutes Exception, RCW 42.17.260(1).
The court, for the first time, discusses the exemption for records or information which is exempt under other statutes. The Public Records Act requires agencies to make all public records available for copying and inspection, unless the record is exempt under the Act or "other statute which exempts or prohibits disclosure of specific information or records." RCW 42.17.260(1) If another statute "meshes" with the Act, then its prohibition supplements the exemptions contained in the Act to exempt additional records from disclosure. However, if another act conflicts with the Act, the Act governs. Only exemptions which are explicitly identified in other statutes can be used under this exemption. The court also points out that this section is an exception for the need to redact only those portions of records subject to nondisclosure. If another statute prohibits disclosure in its entirety, then it can be withheld. The Court did not address whether a statute which overlaps or encompasses an exemption with the Act "conflicts" with the Act. PAWS, 125 Wn.2d at 261-262.
Two statutes are identified as "other statutes" although neither justified withholding the entire grant proposal in PAWS. The State Uniform Trade Secrets Act, RCW 19.108.010(4), operates as an independent limit on disclosure of portions of any record which have even potential economic value. "The Public Records Act is simply an improper means to acquire knowledge of a trade secret." PAWS, 125 Wn.2d at 262.
A second statute which may justify withholding information is the anti-harassment statute specifically geared to animal researchers. RCW 4.24.580. "We hold that researchers may seek to enjoin the release of certain portions of public records if the nondisclosure of those portions is necessary to prevent harassment as defined under the anti-harassment statute." 125 Wn.2d at 263. Specifically, the names of researchers and other information need not be divulged if the anti-harassment statute is properly invoked and its criteria met.
8. Federal pre-emption
The Court also rejected the arguments that the Public Records Act is preempted by various federal laws. The state law could be preempted by Congress in three ways: express preemption, field preemption, or conflict preemption. Department of Ecology v. P.U.D., 121 Wn.2d 179, 192-199, 849 P.2d 646 (1993), aff'd 114 S.Ct. 1900 (1994). The Freedom of Information Act does not preempt the state law because by its terms it applies only to federal agencies.
The Bayh-Dole Act authorizes federal agencies to withhold from disclosure any information disclosing any invention in which the federal government owns or may own interest until a patent application can be filed. This type of information falls with the state valuable formulae or research data exemption, so there is no conflict between the federal and state acts.
Federal patent law: The court refused to discuss this exemption because any proprietary or patent-related information was excised and PAWS waived access to proprietary or patent-related information.
Federal copyright Law: The University argues that federal copyright would forbid any disclosure. However, the court did not understand how the material remaining after the trial court's redaction could be copyrighted. The court then summarizes the copyright protection as follows:
Moreover, copyright protection does not ensure confidentiality. Instead, it only protects against unauthorized copying, performance, or creation of derivative works. 17 USC §106. To put the matter concisely, copyright protection does not preclude inspection of copyrighted material.
125 Wn.2d at 267, (Emphasis Added). The court appears to be inferring that copyright law could preclude copying.
9. Geographic Information Systems:
Many cities are developing Geographic Information Systems (GIS) with tremendous capabilities to map the various systems within the city. Agencies have invested financial and personnel resources to develop these systems. In some cases, agencies are working with other public or private entities to develop and maintain the systems. In addition, some systems include information acquired through licensing agreements which may have restrictions on transfer. Some cities do not want to disclose the system to private individuals or entities who will use it for private gain. Municipalities in Washington are not alone in struggling to decide how GIS data is handled under the public access laws. Across the country, states, cities and counties are trying to decide what to provide, in what form and for what cost.
In Washington, a bill was introduced in the legislature which would have specified how requests for GIS would be handled, and authorized fees, but the bill did not make it out of committee.
One approach of those who are developing the systems is to license users and charge for the information. If the system is copyrighted or licensed then the city arguably has a basis for such a charge. Otherwise, it appears that as public records prepared by the government, it should be available. The form of production can also be an issue -- must a city provide the records in a computer format or can only paper records be provided.
10. Litigation Disclosure.
In Ames v. Fircrest, 71 Wn.App.284 (1983), the City of Fircrest was sued because of a public records disclosure. Fircrest requested an investigation of its police chief, Ron Ames, because of alleged improprieties. The prosecutor's office investigated and found some violations of statute, but declined to file charges. Ames was placed on administrative leave while Fircrest conducted an internal investigation. That investigation concluded that conduct violated city rules and state law. Prior to any disciplinary action, Fircrest and Ames engaged in settlement discussions. A settlement agreement was drafted. During negotiation, Ames' attorney requested that the agreement be modified to prohibit release of the investigation records. That change was refused. The agreement was assigned providing or discipline and the parties issued an agreed press release.
Subsequently, a reporter requested the "Fircrest P.D. internal investigation." Initially partial records were released with some redactions to protect confidentiality. A story followed regarding Ames which named him as responsible for specific instances of misconduct.
After the suit was filed, the Public Records Act was amended to add a section which protects an agency from damages for a release of a public record if the actions were a good faith attempt to comply with the act. RCW 42.17.285.
The court held that because the chief could not show that the records were exempt from disclosure under a specific exemption, the City was entitled to summary judgment. The court specifically discussed the issue of releasing Ames' name when it was already known. In such a case, Ames' name was not exempt from disclosure. 71 Wn.App. 296.
11. Procedural Issues: Review of the Agency's Response.
A favorable ruling for agencies in the PAWS decision is that the University was not limited to arguing only the bases for nondisclosure cited in its letter denying disclosure. The court felt that the goal of prompt response might be subverted if agencies were limited to arguing only those reasons cited for their actions. 125 Wn.2d at 253. The court of appeals had previously held in Cowles Publishing Co. v. Spokane, 69 Wn. App. 678, 849 P.2d 1271 (1993) that because the Act required a show cause hearing, not a record review, that the Court could consider grounds not previously cited by the Agency.
In addition to the requirement that a city detail the exemptions which justify withholding any information, the court in PAWS held that an agency must also "include specific means of identifying any individual records which are being withheld in their entirety." 125 Wn.2d at 271. This provides an adequate record on review and also complies with the statute.
Cities continue to have the difficult task of meeting the Public Record Acts requirement of responding promptly to requests while excluding from disclosure information which is exempt under the Act. Cities deny disclosure requests knowing that if they are wrong about the application of an exemption they are subject to attorneys' fees and penalties. Attorneys' fees will be awarded at both the trial court and on appeal. Penalties, in the discretion of the court, are to be awarded in the amount of not less than $5 and not more than $100 for each day that access was denied. Although the court in PAWS declined to create a standard governing imposition of penalties in public records cases, the court notes that they have previously held that "'strict enforcement' of fees and fines will discourage improper denial of access to public records." PAWS, 125 Wn.2d at 272 quoting earlier cases.