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MRSC In Focus › Open Government Advisor May 2009
 
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MRSC has joined with Ramsey Ramerman, Assistant City Attorney, City of Everett, to bring you the "Open Government Advisor." The Open Government Advisor will feature periodic articles focusing on open government issues, including issues related to the Public Records Act, Open Public Meetings Act and Public Disclosure Act.*

Eight Quick Answers about the new Prisoner Injunction Provision
(Law of 2009, chapter 10, SSB 5130) in the Public Records Act

May 2009

By Ramsey Ramerman, Assistant City Attorney, City of Everett

The Prisoner Injunction bill, Substitute Senate Bill 5130, is now Laws of 2009, Chapter 10. It was signed March 20, 2009, and because it contained an emergency clause,1 it became effective immediately. Under this new law, certain agencies and others can sue to enjoin public records requests by “persons serving criminal sentences in state, local, or privately operated correctional facilities.”2 This “summary” is designed to provide quick answers to specific questions in an easy question-and-answer format. But it is in fact longer than the actual statute. So some may prefer to simply read the statute.

  1. Who can file a prisoner injunction lawsuit?
  1. The agency – meaning city, county or the state – who holds the record;3 or
  2. A person who is named in the record, or to whom the record pertains.4
  1. Where do you file a lawsuit to seek an injunction?

The lawsuit must be filed in superior court in the:

  1. County where the person filing the lawsuit resides;5 or
  2. County where the record is maintained.6
  1. What do you have to prove?

The moving party must prove by a “preponderance of the evidence”7 that:

  1. The request was made to harass or intimidate an agency or its employees;8
  2. Fulfilling the request would likely threaten security of the corrections facility;9
  3. Fulfilling the request would likely threaten the safety or security of any person;10 or
  4. Fulfilling the request may assist criminal activity.11
  1. What types of evidence do you need to obtain an injunction?

The law allows the court to consider all relevant factors, including but not limited to:

  1. Other requests by the requester;12
  2. The type of record or records sought;13
  3. Statements offered by the requester concerning the purpose for the request;14
  4. Whether disclosure of the requested records would likely harm any person or vital government interest;15
  5. Whether the request seeks a significant and burdensome number of documents;16
  6. The impact of disclosure on correctional facility security and order, the safety or security of correctional facility staff, inmates, or others;17 and
  7. The deterrence of criminal activity.18
  1. Can future requests be enjoined, even after a prisoner has been released?

Maybe. The law gives the court the express authority to enjoin “for a period of time the court deems reasonable, future requests.”19 On one hand, it could be argued that “future requests” means future requests while the prisoner is still incarcerated because the law only allows for injunctions against persons serving sentences. On the other hand, “future requests” could mean future requests for as long as the court deems the harassing use of the request will continue because prisoners will not necessarily stop harassing public agencies once released.

  1. Can anyone other than a prisoner be enjoined?

Yes, any entity owned or controlled in whole or in part by the prisoner.20 So, no hiding behind someone else.

  1. What type of hearing is required?

The law only requires a “summary hearing” based on declaration unless the court orders otherwise.21 Thus, a prisoner has a right to file a written response, but the statute does not squarely address that prisoner has a right to an in-person hearing on the motion to enjoin. The Public Records Act already allows the court to rule based on declarations,22 so it could be that the “summary hearing” here means a hearing “on the papers” without oral argument, at least when the prisoner is in a correctional facility outside of the county.

  1. If the agency wins in the trial court but then loses on appeal, will it have to pay the standard mandatory attorney fees and daily award?

No. The law provides that “an agency shall not be liable for penalties under RCW 42.56.550(4) for any period during which an order under this section is in effect, including during an appeal of an order under this section, regardless of the outcome of the appeal.”23 Subsection .550(4) of the PRA does not use the term “penalties,” so presumably this provision refers both to the costs and to the daily “award” of $5 to $100 per day. But expect prisoners to argue the law only excuses the agency from the daily award, as this award is sometimes referred to as the “daily penalty,” even though that phrase is not in the PRA.

REMEMBER, it was prisoner abuse of the Public Records Act that led to the passage of this law. Agencies must be careful not to overuse the law by suing every annoying prisoner. The press currently supports the law. But the media’s attitude could change if it believes (even wrongly) that the law is being misused or abused. And this could harm any support for other needed reform.



1Section 1(1).

2Section 1(1)(a)(i).

3Section 1(1)(a)(i).

4Section 1(1)(a)(ii) & (iii).

5Section 1(1)(b)(i).

6Section 1(1) (b)(ii).

7Section 1(3).

8Section 1(1)(c)(i).

9Section 1(1) (c)(ii).

10Section 1(1)(c)(iii).

11Section 1(1)(c)(iv).

12Section 1(2)(a).

13Section 1(2)(b).

14Section 1(2)(c).

15Section 1(2)(d).

16Section 1(2)(e).

17Section 1(2)(f).

18Section 1(2)(g).

19Section 1(3).

20Section 1(3)(b).

21Section 1(3).

22RCW 42.56.550(3).

23Section 1(4).

Ramsey Ramerman, is an assistant city attorney with the City of Everett, where he assists the City with open government issues and appeals. In addition to his work at the City, Ramsey regularly provides open government training for local governments and presents at conferences on open government issues. Ramsey is also one of the founders of the recently formed Washington Association of Public Records Officers. Finally, Ramsey serves as the local government representative on the State Sunshine Committee, currently reviewing the over 300 exemptions to the Public Records Act. Prior to joining the City of Everett, Ramsey practiced at Foster Pepper PLLC as part of the firm's Municipal Group.

*The Articles appearing in the "Open Government" column represent the opinions of the authors and do not necessarily reflect those of the Municipal Research & Services Center.