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MRSC In Focus › Open Government Advisor September 2010
 
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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.*

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Public Records Act (PRA) Case Law Update: 2009 — 2010

September 2010

By Ramsey Ramerman, Assistant City Attorney, City of Everett

The case law update below first appeared in the Washington Association of Public Records Officers' (WAPRO) July 2010 Newsletter. WAPRO will be holding its next Public Records Act training, “Beyond the Basics,” on October 7 in Lakewood. Details are available here.

Table of Contents:

Article

Case Summaries

“Reverse” Third-Party PRA Claims Update
Two Recent Appellate Decisions Refine Agencies' Duties in “Reverse” PRA Claims

Third-Party Public Records Act Claims

Governments collect a lot of information from individuals and private entities. When governments use that information, those records become public records, subject to the Public Records Act (PRA). The purpose of the PRA is “to allow public scrutiny of government,” not third parties. Tacoma Public Library v. Woessner, 90 Wn. App. 205, 218 (1998). When a requester seeks records that contain information about third parties, the PRA allows third parties to attempt to block disclosure by filing a “reverse” PRA against the government agency that is responding to the request to block disclosure. RCW 42.56.540. Two recent appellate decisions have added some important refinements on how these reverse PRA claims should proceed.

First, requesters should always be included as parties to these reverse PRA actions. If a third party has not included the requester, the agency should consider moving to dismiss the claim.

Second, even when a third party files a reverse PRA lawsuit, the agency is still required to release the records unless the third party has also obtained an actual injunction — typically a Temporary Restraining Order — that prohibits the agency from releasing the records. If the agency withholds the record without an injunction and a court ultimately rules the records should be released, the agency may end up being liable under RCW 42.56.550(4).

These points, along with additional lessons are elaborated on below after the summary of the two cases.

Burt v. Department of Corrections: requesters are “necessary” and “indispensible” parties in reverse PRA suits

In the first case, Burt v. Department of Corrections (DOC), an incarcerated felon made a PRA request for personal information about jail guards. Those guards filed a reverse PRA claim against the DOC to block disclosure. The requester was given notice about the lawsuit, but did not seek to intervene until after the trial court entered an order enjoining the release of the records. When the requester finally did seek to intervene to seek reconsideration of the ruling, the trial court denied the motion and the requester appealed.

On appeal, the requester asserted that he was a “necessary” and “indispensible” party pursuant to Civil Rule (CR) 19. Under CR 19(a), when a party is a “necessary party,” the party has a right to intervene. When a necessary party is also an “indispensible” party, CR 19 provides that the action should be dismissed if the necessary and indispensible party is not joined in the lawsuit.

The Court of Appeals affirmed the trial court, but on further appeal, the Supreme Court reversed and held that the requester was a necessary and indispensible party under CR 19. Thus, the injunction blocking disclosure was vacated and the case was remanded for a new hearing to allow the requester to argue in favor of disclosure. In other words, the Supreme Court held that in any reverse third party action, the party seeking to block disclosure must sue both the agency and the requester.

The dissent correctly noted that this ruling may have a detrimental effect on transparency because it will force PRA requesters to participate in reverse PRA lawsuits whether they want to or not. Some requesters will end up dropping PRA requests because they cannot afford the costs or time that any lawsuit requires.

The opinion also fails to account for the fact that often an agency does not have sufficient information about the requester that would allow for service of the lawsuit. Under CR 19, when a necessary and indispensible party cannot be served, the court must dismiss the lawsuit. Thus, under this ruling, requesters may be able to insulate themselves from reverse PRA lawsuits by remaining anonymous.

Some additional “bad facts” probably contributed to the majority's ruling. Although the DOC was sued by its employees, the DOC did not argue in favor of disclosure. The DOC delayed production for a full month to allow its employees to file the lawsuit. Once it was filed, rather than oppose it's employee's claims, the DOC stated that it did not object to the injunction and filed a brief in favor of the injunction. Therefore, the Supreme Court noted that the case had the appearance of a collusive lawsuit, rather than a truly adversarial case.

The opinion leaves open the possibility that in a case where an agency is strongly advocating in favor of disclosure, the requester might not be necessary or indispensible party. But even when an agency appears to be advocating for disclosure, if the requester can later show that the agency was not arguing hard enough, Burt would probably require the requester to be a party. Moreover, the third party cannot be sure how an agency will respond — and thus whether the requester is a necessary and indispensible party — prior to filing the lawsuit.

Kitsap County Prosecuting Attorney's Guild v. Kitsap County: a third party must obtain a Temporary Restraining Order (TRO) when initiating a reverse PRA lawsuit.

In Kitsap County Prosecuting Attorney's Guild v. Kitsap County, the County withheld records requested by the Kitsap Sun because County employees indicated their intent to sue the County to block disclosure. The County had originally told the Sun that by August 20, it would determine whether the records were exempt, and that it was providing notice to its employees pursuant to RCW 42.56.540. On August 22, the employees filed a lawsuit seeking an injunction. The County provided the Sun with notice of the lawsuit and the Sun ultimately intervened. A summary judgment hearing was held and the trial court ruled the records were not exempt. The County remained neutral at this hearing. After the employees decided not to appeal, the County released the records.

After ruling in the County's favor — against its employees — the trial court then entered an order requiring the County to pay the attorney fees and daily penalties to the Sun. The County appealed this order, claiming that it did not wrongfully withhold the records but was instead prohibited from disclosing them because of its employees' injunction suit.

Under RCW 42.56.540, if a third party files a lawsuit and obtains an injunction blocking disclosure, but that injunction is ultimately reversed, the agency will not be liable for the requester's attorney fees or for daily penalties because the agency has not wrongfully withheld the records and the requester had not “prevailed” against the agency. Thus, the County asserted on appeal that as the prevailing party, it should not have to pay the requesters' fees or penalties.

The problem, however, was that there was never any court order enjoining the County from releasing the requested records. When the employees sued, they did not obtain a TRO. Instead, the County agreed to withhold the records pending a full hearing on the employee's request for a permanent injunction. Thus, the Court of Appeals held that there was no legal basis for withholding the records after August 20, and the records should have been disclosed on that date when the County decided to release the records and its employees had not obtained an injunction.

Five Lessons for Burt and Kitsap County

Reverse PRA actions can serve as an important tool for agencies to limit their liability when faced with ambiguous exemptions and third parties whose interests could be harmed by disclosure. In those situations, the agency can give notice pursuant to RCW 42.56.540 to the third party and let the third party protect its own interests. When handled properly, this will relieve the agency of any liability for attorney fees and penalties. But as Burt and Kitsap County show, the agency must handle these procedures carefully.

First, when providing third party notice, inform the third party that if it sues to block disclosure, it must sue both the agency and the requester. Typically, the requester should also be informed that third-party notice has been provided and what date the agency has required the third party to obtain an injunction. This notice will often also state the agency's intent to release the records on the following day if no injunction is obtained. There may be situations, however, where an agency is still seeking to determine whether an exemption applies and RCW 42.56.520 expressly provides that requests can be delayed to allow agencies a reasonable amount of time to make that determination, as was the situation in the Kitsap County case. As noted below, the agency must actually make this determination by the date it has stated the records will be released, even if a lawsuit has been filed.

Second, the notice should clearly state that the third party must obtain an actual order blocking disclosure by the designated date or else the agency will disclose the records. Although the PRA does not indicate how long it should give the third party to obtain an injunction, 10 business days is typical. If an agency provides too much time, a court may find that the agency is wrongfully withholding the records by favoring the third party over the requester.

Third, the agency must release the records on the date it indicated it would release the records unless (1) the third party has obtained an actual order — typically a TRO — blocking disclosure; (2) the requester has expressly agreed to an additional delay or (3) unforeseen circumstances justify further delay and the agency has sent the requester an extension letter. Under this third scenario, agencies should not delay disclosure because the third party needs more time to put its lawsuit together. Moreover, any such extension can be challenged by the requester under RCW 42.56.550. If the third party has stated that it intends to obtain an injunction, but has not actually obtained the order, the agency will be liable for fees and penalties if it does not disclose, absent one of these three circumstances.

Fourth, if the third party obtains an injunction but has not joined the requester, the agency should move to dismiss the case under Civil Rule 12(b)(7) and move to vacate the injunction. Otherwise, the agency opens itself up to criticism (and possible penalties and attorney fees) that it is engaging in a collusive lawsuit.

Fifth, once the agency has decided that it will release the records, the agency should make that intent absolutely clear to the requester and the court. Ideally, the agency would make this decision — and inform the requester — prior to being sued by the third party. But the agency must make this determination by the date it told the requester it would make that decision (subject to any legitimate reason for extending that date) and must make it absolutely clear in the lawsuit that the agency's intent is to disclosure the record absent a court order prohibiting disclosure. The Sun had argued that the County was required to advocate in favor of disclosure, but the Court of Appeals avoided that issue. Nevertheless, an agency may be opting for disclosure simply because the exemption is ambiguous and the agency is unwilling to put taxpayer dollars on the line by withholding the records. Moreover, under these circumstances, if the agency attorney thinks the exemption probably applies, the attorney would be prohibited from arguing in favor of disclosure. Thus, while this case does not resolve this issue, hopefully a future court would reject the Sun's argument.

Finally, as noted by the Court of Appeals, this opinion does not address the issue of whether the records at issue were actually exempt. The Sun had requested the towns of residence of employees. The employees asserted that this was part of their “address” which is exempt under RCW 42.56.250(3). The employees did not appeal, so the Court of Appeals did not have to rule on whether the trial court's interpretation of the term “address” was correct. Nevertheless, the Court of Appeal's discussion of this issue could be read as endorsing the trial court's ruling.

Case Summaries

Beal v. City of Seattle, 150 Wn. App. 865, 209 P.3d 872 (2009)

In Beal, a citizen who made an oral request for public records at a planning meeting filed a PRA lawsuit against the City — after receiving the record — because the City had failed to provide a 5-day response. The Court held that the request did not provide fair notice to the City that it was a request for public records under the Public Records Act, and therefore, the City was not required to treat it as a Public Records Act request and give that 5-day notice.

The Court's holding was based on its recognition that not every request for a public record is a request made pursuant to the Public Records Act. While the PRA does not require a request to take any specific form or even mention the PRA, the Beal Court held that, in this case, Beal's request did not provide the City fair notice that her request was made pursuant to the Public Records Act.

Request for Public Records under the Public Records Act

First, the Court noted that a person can only request an “identifiable public record.” This requires the requester to give a “reasonable description enabling the government employee to locate the requested record.” It also requires the requester to make the request “with sufficient clarity to give the agency fair notice that it has received a request for a public record” made pursuant to the PRA.

The Court went on to identify some factors that can create ambiguities. First, oral requests, while permitted by the PRA, are inherently “problematic” so requesters are advised to put any requests in writing. Second, when an agency has a duty or reason to provide records because of another statute or reason, requesters should expressly note that they are making a request for public records under the PRA. Otherwise, the agency might think the request is made pursuant to the other existing right to access. This still does not mean a request must cite the PRA, but if a requester simply asked for a copy of a public record without more specificity, there is a risk the agency will think the request is based on the alternate right to access.

Here, because the City was engaging Beal as part of the planning process, a collaborative effort, the City properly interpreted her request to be based on her right to get records as part of this process.

Note: the test is whether the agency received “fair notice.” So if evidence demonstrates that the agency thought the request might be a PRA request, the agency should clarify or risk a court finding that the agency had fair notice. The Beal Court relied heavily on the city's emails, which showed that the City did not in fact recognize the request as a PRA request. If you are ever uncertain whether someone is seeking public records pursuant to the PRA, you should always seek clarification.

BIAW v. McCarthy, 152 Wn. App 720, 218 P.3d 196 (2009)

BIAW v. McCarthy involves the interplay between the Public Records Act and the records retention requirements in chapter 40.14 RCW. Months after the Pierce County Auditor had received and deleted two informational emails that the Secretary of State had sent to all county auditors, BIAW made a public records request for all emails related to the topic discussed in the two deleted emails. BIAW had already obtained copies of the two deleted emails from other sources, so when Pierce County failed to produce those emails, BIAW filed suit claiming the County was illegally withholding records.

The County filed a motion for summary judgment, submitting evidence related to the scope of its search that indicated that the two emails had been deleted pursuant to the retention guidelines before the request was made and no other responsive records existed.

BIAW countered by arguing that questions of fact existed because it was “extremely unlikely” that additional records did not exist. It also asserted that it had a right to conduct its own forensic search for responsive records. The trial court granted the County's motion for summary judgment motion and the Court of Appeals affirmed.

First, the Court of Appeals held that once the County had properly deleted the emails pursuant to the retention guidelines when no PRA request was pending, those records no longer existed for the purposes of the Public Records Act. An agency that failed to produce those records that did not exist has no liability under RCW 42.56.550 because the agency was not denying a requester the right to review any existing records.

Second, the Court held that when an agency submits evidence showing that it had conducted a proper search and no unproduced responsive records exist, a requester “had to present the court with facts, not just mere speculation, not wishes, not thoughts, but facts that would be admissible at trial” showing that responsive records do in fact exist. Unsupported allegations and conclusions cannot create a question of fact.

Third, the Court held that BIAW did not have the right to conduct a forensic search to satisfy itself that no records existed simply because it did not believe the County's claims.

The one issue that is raised but not resolved in McCarthy is: what happens when an agency deletes a record in violation of its retention requirements when no PRA request is pending and then subsequently receives a PRA request for the improperly deleted record? Because the two emails in McCarthy had zero retention value and were properly deleted, the Court did not have to address this question.

Burt v. Department of Corrections, 168 Wn.2d 828, 231 P.3d 191 (2010) Kitsap County Prosecuting Attorney's Guild v. Kitsap County, 156 Wn. App. 110, 231 P.3d 219 (2010)

In Kitsap County Prosecuting Attorney's Guild, the court of appeals held that an agency will be liable for wrongfully withholding a record even if sued pursuant to RCW 42.56.540 by a third party trying to block disclosure if the third party does not obtain an actual temporary restraining order blocking disclosure prior to a hearing on the merits of the claim.

In Burt, the Supreme Court held that requesters are necessary and indispensible parties in third party suits based on RCW 42.56.540.

For more on these cases, see the article above regarding “reverse” PRA lawsuits.

Corey v. Pierce County, 154 Wn. App. 752, 225 P.3d 367 (2010)
Cawley-Herrmann v. Meredeth Corp., 654 F. Supp. 2d 1264 (W.D. Wash. 2009)

These two cases addressed the question of whether agencies can be held liable for disclosing unsubstantiated allegations of misconduct. In Corey, the defendant County disclosed that a deputy criminal prosecutor had been accused of theft. In Cawley, a school district disclosed that a teacher had been accused of abusing a student, which was subsequently reported by the defendant, a TV station. In both of these cases, the courts assumed that under Bellevue John Does v. Bellevue School District, 164 Wn.2d 199 (2008), the agencies were not required to disclose identifying information because of the allegations were unsubstantiated.

In both cases, the Court held that there was no cause of action for the negligent disclosure of unsubstantiated allegations of misconduct. In making these rulings, both courts held that the Bellevue John Does case only defined a right to privacy under the Public Records Act. The Corey court held that the only relief Bellevue John Does supported was injunctive relief and that there was no viable cause of action based on the negligent disclosure of confidential employment information. In Cawley, the Court held that Bellevue John Does does not create any actionable right to privacy.

These cases, however, do not stand for the proposition that agencies are free to disclose unsubstantiated allegations of misconduct. If the agency releases the information in good faith in response to a Public Records Request, RCW 42.56.060 will insulate the agency from any liability. But if the information is released without any such request — as was the case in both cases — then there may be other tort claims that could be brought. In Corey, the court ultimately upheld a multi-million dollar judgment for defamation and outrage.

City of Federal Way v. Koenig, 167 Wn.2d 341, 217 P.3d 1172 (2009)1

In City of Federal Way v. Koenig, a requester asked for all emails sent by a municipal court judge on a particular issue. The City searched for emails from the judge that had been sent to other city employees outside of the court, but did not search the email inboxes of court employees for responsive records. Instead, the City sought a declaratory ruling that all records held exclusively by its municipal court were not subject to the Public Records Act. The City based its claim on a 1986 Supreme Court case that held courts were not “agencies” so court case files were not “public records” under the PRA. If a court was not an agency, then court emails were also not public records under the PRA.

The Supreme Court reluctantly agreed with the City, ruling that it had ruled in 1986 that courts were not agencies and the Legislature had acquiesced to that 1986 decision. This meant that now only the Legislature could amend the definition of agency to include courts, which it had not done. As a result, the City did not need to produce any records, including emails, that were held exclusively by the court. Moreover, because the PRA did not apply to court records, the City also was not required to comply with the PRA requirement that it produce a log of any records it had withheld.

DeLong v. Parmalee,-- Wn. App. --, -- P.3d — (Div. II, July 29, 2010)

This case involved a request from an inmate for personnel files, including employee photographs. The inmate had threatened to use this information, including the photographs, to make fliers he threatened to post around the employees' residences listing the employees as child molesters. The employees sued the Department of Corrections and the inmate to obtain an injunction to block the release of the records. The Court of Appeals, in a less than clear ruling, appears to hold that the release of some records could be blocked, even if no exemption applies, for employees who were specifically threatened by the inmate, but could not be blocked for employees who were not specifically threatened. This appears to conflict with settled law regarding whether third parties can block disclosure if no exemption applies, so agencies should be cautious when relying on this case.

Doe v. Reed, -- U.S. --, 130 S. Ct. 2811 (2010)

In Doe v. Reed, the U.S. Supreme Court rejected a facial challenge to the Public Records Act, based on the Act's requirement that the State disclose signed petitions in support of R-71. The petitioners claimed that disclosing the signatures interfered with their First Amendment rights because it would subject them to harassment and violence for signing the petition. The Supreme Court held that this may be a viable claim for an “as applied” challenge, but that the facial challenge was not sustainable because at least under some circumstances, disclosure would not violate anyone's First Amendment rights. The Court therefore remanded the case to allow the petitioners to make an as applied challenge.

Francis v. Dep't of Corrections, (Unpublished) (Feb. 1, 2010, Div. I)
Tobin v. Worden, 156 Wn. App. 507, 233 P.3d 906 (2010)

These two cases stem from the Supreme Court's interpretation of the PRA's statute of limitations, RCW 42.56.550(6) in Rental Housing Authority v. City of Des Moines, 165 Wn. 2d 525 (2009) (RHA). The PRA provides, “Actions under this section 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.” In RHA, the Supreme Court held that when an agency is withholding a record, the statute of limitations only begins to run when an agency produces a completed exemption log.

Francis involved a case where the Department of Corrections (DOC) overlooked a record that was clearly responsive to an inmate request. Because DOC unintentionally failed to produce the record, it did not provide an exemption log.

Over one year after the request was completed, the requester learned that DOC had failed to provide a responsive record. The requester promptly filed a lawsuit, which was dismissed based on the one-year statute of limitations.

The court of appeals reversed and ruled that the case was not barred by the one-year statute of limitations. The court cited to RHA and held that because DOC did not list the overlooked record on an exemption log, the statute of limitations never began to run.

Tobin involved an analogous factual situation. In response to a PRA request, King County erroneously produced the wrong record. Over one year later, after uncovering the correct record in civil litigation, the requester sued.

King County argued that the case was time barred because it had completed the request over one year before the lawsuit was filed. It argued that RHA did not apply because it was not asserting an exemption; it had just provided an erroneous response. According to the county, this production qualified as its last production, and thus triggered the statute of limitations.

The court of appeals held that the statute had not run because King County had not taken one of the two actions that would trigger the statute. First, assuming King County had not asserted an exemption, this provision of the statute of limitations had not been triggered. Second, because King County had only made a single production, its production was not “the last production of a record on a partial or installment basis.” See RCW 42.56.550(6) (emphasis added).

The sum of RHA, Francis and Tobin, is that agencies may now be exposed to limitless liability any time a document is overlooked, the exemption log requirement is not fully complied with, or the agency makes a single production rather than produce records in installments. In 2005, the Legislature reduced the statute of limitations to one year in response to the Yousoufian case, where King County faced 8000 days of penalties, in part because the requester waited over a year to file suit. These three opinions undermine that fix by creating the potential for limitless liability under some circumstances.

Koenig v. Pierce County, 151 Wn. App. 221, 211 P.3d 423 (2009)

In Koenig v. Pierce County, a requester made similar public records requests to two county departments: the sheriff's office and the prosecutor's office. The requester did not, however, provide notice to the prosecutor's office that he had made the same request to the sheriff's office. When he received additional records from the sheriff's office that he did not receive from the prosecutor's office, he sued the prosecutor's office. The trial court dismissed the suit and the Court of Appeals affirmed.

Exemption Logs for Work Product

First, the Koenig Court held that the prosecutor's office had properly withheld the records as work product. In doing so, the Court also held that the “exemption log” that the prosecutor's office provided, which simply noted that 44 pages of police reports and 139 pages of witness interviews were being withheld, was sufficient. It was not required to record the titles, authors or recipients.

This ruling is based on the nature of the work product doctrine and will only apply to records withheld as “gathered” work product. One thing the work product doctrine protects is records, including third party records, a litigant has gathered in support of a case. This “gather” work product is protected because if it had to be disclosed, the opposing party could learn what records the litigant thought were important, which would give away trial strategy. The Koenig court recognized an exception to the detailed exemption log requirement because otherwise, if an agency had to detail these gathered records in an exemption log, this would provide the exact information the doctrine was meant to correct. The Supreme Court has already recognized that the exemption-log requirements do not have to be complied with when compliance would disclose the very information the exemption is meant to keep confidential. Therefore, the Koenig Court's ruling is not surprising and simply adds clarity to existing precedent.

Coordinated Responses between County Departments

Second, the Koenig Court held that the Sheriff's office was a separate agency from the prosecutor's office, and therefore, the prosecutor's office was not required to search the sheriff's office for responsive records. In support of this conclusion, the court noted that otherwise, any request to any state agency would require a search of every state agency to locate records. Thus, while this conclusion is different than the conclusion reached by the State Auditor in his 2008 Public Records Act performance audit, it is very well-reasoned and fully consistent with the intent of the original 1972 initiative, where the People warned that we must be “mindful of . . . the desirability of the efficient administration of government[.]” I-276, Laws of 1973 ch. 1, §1(11) (codified at RCW 42.17.010(11)).

Note: in counties, the sheriff's office and the prosecutor's office are headed by two separately elected officials. It is not certain that the Court would have reached the same conclusion for a smaller municipality that is headed by a single governing body of elected officials.

Koenig v. Thurston County, 155 Wn. App. 398, 229 P.3d 910 (2010)

This case addresses the issues of whether SSOSA (Special Sex Offender Sentencing Alternative) and Victim Impact statements are subject to disclosure. The three-judge court of appeals panel yielded three separate decisions and thus the opinion is of limited use. Two judges concluded SSOSA statements were subject to disclosure, rejecting claims that the statements are exempt as medical records, investigative records or on privacy grounds. Two judges also concluded that Victim Impact Statements are exempt as investigative records under RCW 42.56.240(1) because absent a promise of confidentiality, victims might be unwilling to provide these statements. Because there are three separate opinions, agencies should be cautious in relying on this case. Hopefully, it will be clarified on reconsideration or the Supreme Court will accept review and provide clearer guidance.

Note: after reconsideration, the court amended its opinion to award attorney fees to Koenig.

Mechling v. City of Monroe, 152 Wn. App. 830, 222 P.3d 808 (2009)

Mechling v. City of Monroe provides a clear example of the risks of employees mixing public business with personal issues in emails. The case involved a public records request for all emails sent to or from city councilmembers from either their work or home computers. Because of the broad definition of “public record,” the City recognized that it had to produce emails councilmembers had sent from their personal email accounts when those emails included city-related issues. But to protect the councilmembers' privacy, the City redacted the councilmembers' personal email addresses and non-city-related discussions in these emails. These redactions were based on two grounds.

First, the City redacted the personal email addresses based on RCW 42.56.250(2), which exempts “personal electronic mail addresses . . . that are held by any public agency in personnel records, public employment related records, or volunteer rosters, or are included in any mailing list of employees or volunteers of any public agency.”

Second, the City redacted non-city-related discussions in the emails based on the definition of “public record,” which makes a record “containing information relating to the conduct of government or the performance of any governmental or proprietary function” a public record. The City reasoned that if a portion of an email did not contain information related to the City, it did not meet this definition and could be redacted.

Finally, the City refused to produce any of the emails in electronic format, held back all emails that contained attorney-client discussions in their entirety, even if those emails also contained non-privileged discussion and did not include the names of the authors or recipients of these privileged emails in its exemption log.

The trial court ruled in favor of the City and dismissed the claim, but the Court of Appeals reversed on all of these issues.

First, the Court of Appeals ruled that personal email addresses in emails sent by councilmembers discussing city business were not exempt under RCW 42.56.250(2) because the email with those personal email addresses were not “in” personnel files nor were they “public employment related records.”

Second, the Court held that when an email has mixed content — personal information and city information — the email was a public record and could only be withheld if an actual exemption applied. The City had redacted the personal information because it was not “related to the conduct of government” and therefore did not meet the definition of “public record.” But there is no such exemption and because the emails did contain some information related to the conduct of government, the email was a public record and any redaction had to be supported by an exemption.

Third, the Court held that the City's duty to provide the “fullest assistance” required the City to produce electronic records that did not contain redactions in electronic format if it was reasonable and electronically feasible to do so. If the record had to be redacted however, the City was not required to produce it electronically if it did not have a scanner. This was an implicit acknowledgment by the Court that unless an agency has sophisticated document management software, the only practical way to redact electronic records is to print them and redact by hand. The requester actually argued that the PRA required the city to purchase a scanner.

Fourth, the Court held that while the redaction requirement in RCW 42.56.210 did not apply to exemptions located outside of the chapter 42.56 RCW, case law interpreting the attorney-client privilege did require redactions when only part of a record was privileged.

Finally, the Court held that merely noting that an email was “either sent by or to” an attorney on an exemption log was insufficient — the actual author and recipient had to be listed.

Mitchell v. WSIPP, 153 Wn. App. 803, 225 P.3d 280 (2010)

In Mitchell, a defendant who had obtained a PRA judgment against an agency submitted false evidence in support of his claim for costs. The court of appeals affirmed the imposition of sanctions for this conduct.

Morgan v. City of Federal Way, 166 Wn.2d 747, 213 P.3d 596 (2009)2

In Morgan v. City of Federal Way, the Supreme Court ruled that the City of Federal Way could release a discipline-related investigative record, rejecting a claim from the municipal court presiding judge that the record was exempt from disclosure. While the primary arguments concerned whether it was a City record or a municipal court record and whether it was exempt under the attorney-client privilege and work product doctrine, the Court's resolution of those issues turned on factual questions rather than legal issues, and is therefore not particularly instructive. But there are still lessons that can be taken from the case on discipline records and third-party injunctions. It's also important to know what the court did not rule on with regards to the attorney-client privilege and work product doctrine.

Discipline Records

In Morgan, the Supreme Court ruled on two issues that affect the disclosure of discipline-related records, elaborating on its holding in Bellevue John Does v. Bellevue School District, 164 Wn.2d 199 (2008). In Bellevue John Does, the Court held that for the unsubstantiated allegations at issue in that case, the identifying information of the accused teachers could be redacted. This was because disclosure of the allegations — that teachers engaged in sexual misconduct with students — could harm their career, making disclosure highly offensive and therefore in violation of the teachers' rights to privacy.

First, the Morgan Court clarified what “unsubstantiated” means. The Judge claimed that the allegations in the investigative report were unsubstantiated because he claimed they were false. The Supreme Court disagreed and held that a charge of misconduct is not unsubstantiated simply because the employee contests the allegation. Instead, the Court looked to the City's determination of whether the allegations were substantiated.

Second, the Court held that even if the allegation was unsubstantiated, that does not mean identifying information can automatically be redacted. In Morgan, the allegations against the Judge were that he made angry outbursts, inappropriate gender-based and sexual comments and demeaned other employees. The Court stated that, unlike in disclosure of the allegations in Bellevue John Does, disclosure of the allegations against the Judge, even if unsubstantiated, “did not rise to the level of ‘highly offensive.’ Therefore, disclosure of these allegations, even if they were unsubstantiated, would not violate the Judge's right to privacy. Given the extreme nature of the allegation in Bellevue John Does, the holding in Morgan strongly suggests that most unsubstantiated allegations should be disclosed.

Third Party Injunctions

The Morgan Court also provided guidance on the requirements for a third-party injunction under RCW 42.56.540 by ruling that the City's decision to release records is given deference. A party seeking to block disclosure will have the burden of overcoming the presumption that the City's decision is in the public interest. Because the report at issue contained substantiated facts relating to an elected official's conduct, the Court easily found that the Judge could not meet this burden.

The ruling demonstrates that a third party cannot overcome an agency's decision to release records simply by proving an exemption applies. Instead, they will also have to show that the public interest that supports the exemption does in fact apply in the particular case.

Finally, the Court re-affirmed that a third party who obtained a temporary restraining order blocking disclosure can be ordered to pay an agency's attorney fees if that ruling is vacated, but the decision to award fees is purely within the discretion of the trial court.

Work Product and Attorney-Client Privilege

As noted, the Court's rulings on work product and attorney-client privilege were based on factual determinations and therefore the opinion does not add much to the meaning of the PRA, except that the unanimous Court re-affirmed Hangartner's holding that the attorney-client privilege is an exemption to the Public Records Act.

It is important, however, to understand what the Court did not hold. Although the Court held that, factually, the investigative record was not privileged or protected as work product, the Court did not hold that investigations of allegations of misconduct against employees can never be privileged or work product. Instead, all the Court held was that, under these facts, where there is no evidence to suggest that the City was anticipating litigation and the investigator was not hired to provide legal advice or collect facts so another attorney could provide legal advice, the records in this case were not privileged or work product. Had the record shown that the City attorney was concerned about claims against the City when she ordered the investigation, or that she had ordered the investigation so she could provide legal advice, the result would likely have been different. But as the Court noted, it “must base [its] rulings on what actually happened[.]”

NCAA v. AP, 18 So.3d 1201 (Fla. App. 2009)

Broad Definition of “Public Record”

The National Collegiate Athletic Association considers its discipline proceedings highly confidential. Florida's Sunshine Laws, like Washington's Public Records Act, define “public record” very broadly to include any record that is used by a public agency as part of its official business. When the NCAA initiated discipline proceedings against Florida State University, it attempted to maintain confidentiality and avoid making its records “public records” by only allowing the University's outside counsel to review its ruling and the transcript of its hearing on a read-only secure website. The NCAA also made the University's outside lawyers sign a confidentiality agreement.

A Florida appeals court ruled that the state's Sunshine Laws were strong enough to penetrate this secrecy effort and the records were public records subject to disclosure. It held that because the University's attorneys reviewed the records as part of its efforts to assist the University in its transaction of official business, the University used the records, making them “public records.” It also ruled that the state's Sunshine Laws required that the whoever had the record — in this case the NCAA — had to produce it.

The court rejected the argument that the records were only “reviewed” and not used because the University lawyers were never given copies. The records were directly related to the University's official business and used by its lawyers as part of the University's defense. Thus, its lawyers did significantly more than just review the records. It also rejected an argument that the Sunshine Law violated the Dormant Commerce clause in the U.S. Constitution by interfering with interstate business.

Neighborhood Alliance v. County of Spokane, 153 Wn. App. 241, 224 P.3d 775 (2009), petition for review accepted June, 2010

In Neighborhood Alliance v. County of Spokane, the Court of Appeals found that Spokane County had violated the Public Records Act because it limited its search for the requested record to an employee's current computer and did not search her former computer for that record.

Despite that conclusion, the Court did not hold that agencies have to search every surplussed desktop as part of every records search. Nor did it hold that a forensic search of such computers is ever required. Instead, the Court's ruling is based on a specific fact in this particular case — when the County was searching for records on an employee's current computer, it learned new information that should have made it obvious that the requested record might be located on the employee's former computer and might still have been on that computer. The County, however, ignored this obvious lead.

The holding of Neighborhood Alliance turns on that key fact: if, as part of an agency's search efforts, the agency learns facts that suggest a search of an additional location or source might reasonably be expected to uncover responsive records, the agency cannot ignore that lead.

New Cause of Action

In making this ruling, the Court adopted federal precedent to recognize a new cause of action under the PRA: an agency can be liable if it does not conduct an adequate search, even if there is no evidence that the agency failed to produce responsive records. This claim is separate and apart from a claim that an agency failed to provide a responsive record. The Neighborhood Alliance Court didn't find that the County had failed to produce records in its possession — it held that the County was liable for not looking hard enough.

Nothing in the plain language of the PRA supports the creation of a new cause of action. The PRA only recognizes two claims: (1) a claim when an agency “has refused to allow inspection or copying of a specific public record or class of records”; and (2) a claim when an agency “has not made a reasonable estimate of the time the agency requires to respond to a public records request[.]” RCW 42.56.550(1) & (2). Nevertheless, the opinion's analysis of federal precedent for what qualifies as an adequate search, and what an agency must prove on summary judgment to defend against such a claim, provides much needed guidance on how thorough an agency's search for records must be and how an agency can prove its search was adequate.

Scope of Your Search for Records

The PRA provides limited guidance on what constitutes a reasonable search for records. An agency must conduct an objectively reasonable search for responsive records. WAC 44-14-04003(9). An agency's duty to search for records is rooted in what a requester can request: “identifiable public records.” RCW 42.56.080. The Attorney General's Model Rules explain that an identifiable public record is a record an agency can “reasonably locate.” WAC 44-14-04002. What qualifies as a “reasonably locatable record” depends on how an agency organizes its records and, for electronic records, the search capabilities of the agency's existing software. WAC 44-14-05002.

To determine the scope of the search, the Public Records Officer must assess (1) where the records are likely to be, (2) who is likely to know where they are, and (3) how wide the search will be. The agency may consult with the requester. The Attorney General suggests that “[i]t is better to be over inclusive rather than under inclusive when deciding which staff should be contacted, but not everyone in an agency needs to be asked if there is no reason to believe he or she has responsive records.” WAC 44-14-04003(9). Staff likely to have records may be contacted by email.

An agency does not need to conduct a record-by-record search or grant unlimited access to its records to allow a requester to conduct her own search. Finally, when someone asks for records “related to” a topic, the Attorney General advises that the agency should produce records that “directly and fairly address” that topic. WAC 44-14-04002.

The Neighborhood Alliance case provides some additional guidance. There is no one-size-fits-all test to determine if a search was adequate — every case will be fact specific. But as a general rule, Neighborhood Alliance requires that you search all sources and locations that you would reasonably expect to find responsive records or might reasonably expect to uncover responsive records. You cannot limit your search to one location or one source if other sources or locations might likely have responsive records.

The assessment of where to search must be updated as the search progresses and reviewed at the end of the search. You must follow any obvious leads (and probably not so obvious leads) about additional sources or locations that you could reasonably expect to find responsive records.

Proving Your Search Was Adequate

It will be your agency's burden to prove “beyond a material doubt” that you made a good-faith effort to search for records and that search was reasonably calculated to uncover any and all responsive records. If a requester does challenge your search efforts, your agency can meet its burden of showing “beyond a material doubt” that its efforts were sufficient by submitting a declaration that provides details — not conclusions — describing your search efforts. This should include details about:

  • all sources that were searched;
  • all locations that were searched;
  • all methods used to search for electronic records; and
  • all search terms used to search for electronic records.

As long as your efforts were reasonable and there are not any “positive indications” — unsupported supposition is not enough — that raise substantial doubt that reasonably locatable records were overlooked, the Court should be able to rule even on summary judgment that the search was adequate.

Limitations on Discovery

The Neighborhood Alliance Court also looked to federal guidance on what discovery should be allowed in a Public Records Act lawsuit. Based on this federal precedent, the Court held that discovery should only be allowed sparingly and should be narrowly tailored to two topics: (1) whether the agency has conducted an adequate search; and (2) whether the agency has made a complete disclosure of responsive records. The Court ruled that the requester was not entitled to use discovery in a PRA suit as an excuse to try to learn about other perceived concerns that were only tangentially related to the issues in the PRA lawsuit. Accordingly, the Court affirmed the trial court's protective order that limited the requester to a few written interrogatory questions.

City of Ontario v. Quon, -- U.S. --, 130 S. Ct. 2619(2010)

In the Quon case, the Supreme Court held that the City of Ontario did not violate one its police officer's Fourth Amendment right to privacy when it reviewed some of the text messages on his city-issued pager. The opinion, however, is far from decisive and leaves open lots of possible risks for public employers wanting to review employee text messages.

The uncertainty starts with the Court's failure to determine what constitutional test applied to employer's searches of employee's work spaces, which would include the pager. The Court has applied two tests and in Quon it refused to adopt one test, holding that the result was the same under either test.

The Court's result — that officer's rights were not violated — turned on the City's motivation for conducting the search and limited scope of that search. The City was motivated to conduct the search after the officer and another officer substantially exceeded the number of text messages allowed in the City's contract with the wireless provider. The City wanted to determine if it should increase the number of texts in its contract or if the excessive texts were personal and unrelated to City business. To achieve the legitimate objective, the City carefully limited its search to reviewing only two months worth of texts sent during work hours.

The Court held that under these facts, the officer's rights were not violated. The Court determined that the purpose of the search was a legitimate business purpose unrelated to any intent to invade the officer's privacy. It also determined that the scope of the City's search was reasonably limited to achieve the City's legitimate goals.

The decision leaves open several unanswered questions. First, the Court also assumed for the sake of argument that the officer had a legitimate expectation of privacy in the text messages. It is thus still unclear when any such expectation would arise. Second, because the Court emphasized importance of the purpose of the search, it is unclear what other motives would justify a search. Third, because the Court emphasized the limited scope of the search, it is unclear whether a broader search would also be permissible.

Yousoufian v. Office of Ron Sims, 168 Wn.2d 444, 229 P.3d 735 (2010)

The Supreme Court has finally brought penalty phase of the 12-year Yousoufian saga to a close by ruling that Yousoufian was entitled to over $360,000 in penalties, based on over 8000 days of penalties at $45 per day — tripling the trial court's ruling. This March 2010 opinion closely tracks the recalled January 2009 opinion adopting 16 non-exclusive aggravating and mitigating factors courts should apply when determining where on the $5-$100 per day scale the daily penalty should be applied. Those factors can be summarized in 10 factors that can serve as aggravating or mitigating factors:

  1. Clarity of PRA request
  2. Promptness of agency's response (including requester's need for the records if known)
  3. Strict compliance with procedures and exemptions
  4. Training and supervision of staff
  5. Reasonableness of explanation for noncompliance
  6. Agency attitude: whether the agency was helpful, negligent, reckless, dishonest, or acted in bad faith
  7. Agency's tracking procedures
  8. Potential for harm, including economic loss if foreseeable and loss of government accountability
  9. Deterrence effect of penalty based on size
  10. Total number of penalty days

While this tenth factor is not listed in the Court's 16 factors, it is implicit in the Court's 2005 Yousoufian opinion, where the Court noted that courts could consider a requester's delay when determining the daily penalty amount. It is also is supported by the Court's relatively low daily penalty amount — given King County's conceded gross negligence, if the Court had been determining penalties for 80 days rather than 8000 days, it is likely the penalty would have been higher than $45 per day.

The March 2010 opinion did make a couple of important clarifications from the 2009 opinion. First, it held that the requester's need for the records and any potential harm should only factor into the penalty determination if that need and potential harm are known or foreseeable. Second, the Court rejected the suggestion that courts should start the penalty determination in the middle of the $5-$100 range, holding instead that it was appropriate for courts to start at $5 per day.

1Ramsey Ramerman served as counsel for Federal Way in this case.
2Ramsey Ramerman served as counsel for Federal Way in this case.

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.