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Longview, WA
Administrative Policy Concerning Electronic Data

I. Background:

Government is public business. Representative government is a system whereby the governed citizens elect representatives to conduct the business and affairs of government in their behalf. Government is not separate from the governed although it operates as a separate and independent entity. The citizens have the right to know what their government is doing and the activities of government must be open to public scrutiny.

Local government entities in Washington state are required to conduct their business at meetings open to the public. Private or secret meetings are prohibited, and votes cast by members of local legislative bodies may not be by secret ballot. Records, reports, and most all other data possessed by government agencies, are open to inspection and copying by the public. Notices of meetings, other than those that are regularly scheduled, must be given to the news reporting services in advance of such meetings in order that the reporters and the public will be able to attend. In short, government is to be conducted only behind glass walls.

Written information provided to government by citizens who deal with government, and information concerning employees of government, however, is not as open to public examination as is information developed by the government. A private person has the continuing right to privacy when dealing with his own business and his or her private life. When a private person (or corporation) is required by law to reveal his private business to government, he or she doesnít lose the right of privacy. The government, when it receives information concerning a private person, has a duty to protect the private nature of such information and not reveal it to the public. This is also true of persons who are employed by government - information possessed by government of a personal nature is exempt from public disclosure.

There are times when government must engage in property purchases and sales, or use privately-owned and copyrighted formulae in performing governmental business, and there are many times when employees of government will exchange thoughts and ideas in the development of governmental policies and programs. All such matters, to the extent that public sharing of the information would place the government or a private party at a disadvantage, may be withheld from public examination and disclosure.

When information possessed by government is widely known, or when its ìsecurity"; is not maintained, a claim that it is exempt from public examination and copying may be inappropriate due a";waiver"; of the exemption.

II. What Materials are Subject to Public Examination and Copying?

RCW 42.17.020 (27) provides that a";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.";

RCW 42.17.020 (29) provides that";Writing"; means: ";handwriting, typewriting, printing, Photostatting, photographing, and every other means of recording any form of communication or representation, including but not limited to, letters, words, pictures, sounds or symbols, or combination thereof, and all papers, maps, magnetic or paper tapes, photographic films and prints, motion picture, film and video recordings, magnetic or punched cards, discs, drums, diskettes, sound recordings, and other documents including existing data compilations from which information may be obtained or translated.";

RCW 42.17.020 (1) provides that the term";Agency";: ";includes all state agencies and all local agencies. . .íLocal agencyí includes every county, city, town, municipal corporation, quasi-municipal corporation, or special purpose district, or any office, department, division, bureau, board, commission, or agency thereof, or other local public agency.";

RCW 42.17.260 (1) makes records open to inspection: ";Each agency, in accordance with published rules, shall make available for public inspection and copying all public records, unless the record falls with the specific exemptions of subsection (5) of this section, RCW 42.17.310, 42.17.315, or other statute which exempts or prohibits disclosure of specific information or records. . . .";

RCW 42.17.310, RCW 42.17.313, RCW 42.17.315, RCW 42.17.317, RCW 42.17.318, RCW 42.17.319. RCW 42.17.31901, RCW 42.17.31902 and RCW 10.97 all provide for exemptions to the disclosure requirements.

In short, unless exempt from public inspection and copying, everything in government RELATING TO THE CONDUCT OF GOVERNMENT OR THE PERFORMANCE OF GOVERNMENTAL OR PROPRIETARY FUNCTIONS, whether written, recorded, taped or electronically stored, or oral (and saved) is subject to public inspection and copying!

As far as the city is interested, relevant exemptions from disclosure include the following:

Personal information concerning employees
Information required of taxpayers
Real estate appraisals relative to pending transactions
Valuable formulae, etc, if gain or loss would result from disclosure
Preliminary drafts, notes, recommendations, and intra- agency memorandums in which opinions are expressed or policies formulated or recommended except that a specific record shall not be exempt when publicly cited by an agency in connection with agency action.
The residential addresses and telephone numbers of city employees and volunteers
The residential addresses and telephone numbers of utility customers
Information possessed by government that does NOT relate to the conduct of governmental business or the performance of governmental or proprietary functions of government.

Public records containing any of the material described as being exempt from public inspection and copying, or not constituting public records, may take the form of written documents, tape or video recordings, photographs, hand written notes, etc., and they may be found in file cabinets, on desks, on diskettes, computer storage memories, or computer network storage facilities; this includes E-mail and";saved"; voice mail.

Private conversations, not disclosed, are entitled to security; such privacy is protected by statute which makes it a crime to tap a phone, disclose a conversation, etc. Unless waived by general disclosure of a phone conversation (loud speaker on phone), the private character remains; however, when the speaker phone is turned on in a room full of people - there is no privacy.

E-mail is a communication device not unlike a telephone, except it is not interactive and it is not oral. It is a cross between a telephone and the use of the mails. E -mail and phone calls are both private unless they concern government business, and even then they may be exempt from disclosure if they are identified in RCW 42.17.310 etc.

Voice mail, if";saved,"; is subject to disclosure if it concerns government business.

Consider the following:

E-mail and voice mail are not, per se, subject to public disclosure any more than a conversation on the street corner between two people; the fact that both persons who engage in the conversation are related to or work for government is irrelevant. E-mail that is not handled in a fairly confidential manner may, by its";public"; nature, involve a waiver of privacy. Except when exempt from public disclosure under RCW 42.17.310 or otherwise specifically exempt for another reason, E-mail which is broadcast to several people who are not in the same administrative department of city government and who are not involved with the";deliberative process"; of the particular E-mail message can be considered to be";advertised"; and therefore a waiver of exemption from public disclosure may be likely. E-mail may be sent to several diverse people and still retain its exempt character if it is otherwise exempt (i.e.,";preliminary drafts, notes, recommendations, and intra-city memorandums in which opinions are expressed or policies formulated . . . .";)

Interactive computer communication involving city council members is subject to public inspection and copying and possibly a violation of the open public meetings laws if 4 or more members of the city council are involved.

III. Limitations on Entry Into City Network:

Access to information contained on the city computer network memory shall be based on need to know and determination of city manager.
Information stored on the hard drive of a computer may contain discloseable information, it may contain exempt information, it may contain NON-GOVERNMENTAL information, and it may also contain personal information of the person who is assigned the computer for his or her use (similar to the contents of a desk drawer). Therefore, access to or operation of city computers by persons who are not employees or contractors of the city should not be permitted due to the inability to segregate the information.
General city employees may have access into such network-stored data in various departments and servers as are relevant to their jobs.
Levels of access by executive city employees should be determined by employment status (city manager, department head, etc) and the need to know.
City council members should have the same access to the city computer system that is available to the general public - plus e-mail communication ability.
Access to";Public Records"; containing information that is exempt from public disclosure, whether located on a computer memory or otherwise, should not be permitted to City Council members except with the express permission of the city manager. If granted, such permission should be coupled with an admonition that the material obtained by a council person might be exempt from public inspection and caution should be exercised in order to not violate rights of privacy of private citizens, jeopardize the cityís bargaining position, or create a liability for the disclosure of exempt information and a violation of privacy.
City council members, in the interests of efficiency, accuracy and completeness of understanding, have computer access to City Council meeting agendas and supporting documentation. This information is available on computers only to members of the City Council possessing computers and to city employees who are assigned computers for their use, however, such information is subject to public inspection and copying.

IV. Public Disclosure of Electronic Data:

A. E-Mail (electronic communication from one computer to another or to others):

When initiated by a city employee:
Not subject to disclosure if:
(a) of a private nature (nongovernmental)
(b) within the exemptions from public inspection
Otherwise, subject to public inspection at reasonable times, but not by computer operation by other than city employees or contractors.
Preferably disclosure to be by printed document; if by diskette or visual examination of screen, care must be exercised to delete exempt data from disclosure.
When initiated by a City Council Member:
Not subject to disclosure if:
(a) of a private nature (nongovernmental)
(b) within the exemptions from public inspection
Otherwise, subject to public inspection at reasonable times, but not by computer operation by other than city employees or the elected official assigned to the computer. Preferably disclosure to be by printed document; if by diskette or visual examination of screen, care must be exercised to delete exempt data from disclosure.
Subject to disclosure in all cases where simultaneously directed to 3 or more other members of the City Council.
B. Other Data: The same rules of disclosure apply to electronic data as to written or printed information. The public right to inspect and copy remains the same, only the method of inspection will change. The public should not be permitted to operate city computers for three reasons:
1. The wrong button punched could erase stored data;
2. There is no way to separate exempt data from non-exempt data and governmental from nongovernmental information except by the exercise of human judgment; and
3. Allowing a private citizen (including a reporter) to sit down during business hours and browse on a computer is too disruptive to the cityís business to be permitted.
VI. Commentary

Even with the advent of computers, e-mail, voice mail, and interactive electronic communication, the public disclosure and open meetings laws have not changed. The only change consists of new communication devices and a new filing system.
Itís sort of like going from closed-cabinet drawer filing to open shelf wall filing, and from stationary hard-wired telephones to portable and cellular telephones. Although there may be more data stored, no more or less of the data is now exempt from disclosure than before computerization, itís just located in a different place and there may be more of it; itís located on a computerís memory rather than in a file cabinet. The communications between and among public employees and elected officials is no more subject to public scrutiny today than it was a few years ago; if two or three people could hold a private conversation three years ago by telephone, mail or in person without disclosing their conversation to the public, they can still do so by electronic means.
SEE:CHAPTER 14, MCQUILLIN
62A AM JUR 2ND, PRIVACY, ßß 94 - 99,180, 181, 183, 185-188, 190, 193, 194
RCW CHAPTER 9.73 (Violating Right of Privacy)
MRSC REPORT NO. 29 (11/93 -";ASK MRSC";)pg 64-66
WSAMA PROCEEDINGS - 6/18/88 (Protecting Computer Software Under Public Disclosure Laws)pg 76+
WSAMA PROCEEDINGS -10/26/88 (Overview of Public Records) pg 1
WSAMA PROCEEDINGS -10/27/93 (Disclosure of Electronic Public Records Under The Public Disclosure Act) pg 9-1
WSAMA PROCEEDINGS - 4/26/95 (Update on Public Disclosure After PAWS, GIS data, Litigation Disclosure; Trade Secrets Act) pg 10-1
WAC 44-06
WAC 173-3
WAC 236-50
WAC 296-06
WAC 308-10
WAC 390-24

Part 3: "Attached Text"

CHAPTER 2.10 - Inspection and Copying of Public Records

Section 2.10.010. Definitions:
(a)";Public Record:"; 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 the city regardless of form or characteristics.
(b)";Non-Public Record:"; any writing containing information not relating to the conduct of government, and not relating to the performance of any governmental or proprietary function, retained or in the possession of the city regardless of form or characteristics.
(c)";Writing:"; handwriting, typewriting, printing, photostating, photographing, and every other means of recording any form of communication or representation, including, but not limited to, letters, words, pictures, sounds, or symbols, or combination thereof, and all papers, maps, magnetic or paper tapes, photographic films and prints, motion picture, film and video recordings, magnetic or punched cards, discs, drums, diskettes, sound recordings, and other documents including existing data compilations from which information may be obtained or translated.
Section 2.10.020. Inspection and Copying:
(a) Public records possessed by the city shall be available for inspection and copying between the hours of 8:00 a.m. and 5:00 p.m. daily except for Saturdays, Sundays and holidays.
(b) All requests to inspect and copy public records shall be in writing, on forms prescribed by the City Clerk and shall identify the public records sought for such inspection and copying.
(c) All requests to inspect and copy public records, except as otherwise provided herein, shall be submitted to the City Clerk or his/her designee.
Section 2.10.030. Response to Requests for Inspection and Copying;
(a) Responses to requests for inspection and copying of public records shall be made promptly.
1. If the request is for public records maintained by the City Clerk, such request shall be granted or denied within 5 business days thereafter. If granted, the requesting party shall be provided with necessary assistance in performing the inspection, and copying equipment shall be made available.
  Such copying equipment shall include that which is possessed by the city to either copy such public records on the same format (i.e., printed or written to be photocopied; electronic tape to electronic tape, computer stored information to diskette) or converted to a readable format (i.e., computer stored information printed on paper), at the option of the requester.
2. If the request is for public records maintained by a department or office of the City other than that of the City Clerk, the request shall be promptly forwarded to the department or office of the city possessing such public records, and the appriopriate department head or his/her designee shall grant or deny such request within 4 business days after receipt thereof by such department or office. If granted, the requesting party shall be provided with necessary assistance in performing the inspection, and copying equipment shall be made available. Such copying equipment shall include that which is possessed by the city to either copy such public records on the same format (i.e., printed or written to be photocopied; electronic tape to electronic tape, computer stored information to diskette) or converted to a readable format (i.e., computer stored information printed on paper), at the option of the requester.
3. If the city does not possess equipment to copy the requested public records in a manner or format sought by the requester, and if such equipment is available commercially, the person responding to such request shall determine the cost of such copying and notify the requester that the city does not possess the equipment to make the requested copies and the estimated cost of commercial copying.
(b) Requests for inspection and copying may be made directly to the following departments or offices of the city, without first submitting such requests to the City Clerk:
1. Executive (City Manager, Personnel Services, City Attorney);
2. Fire Department;
3. Parks and Recreation;
4. Planning and Building;
5. Police Department;
6. Public Works;
(c) Requests for inspection and copying of identifiable public records, received by mail, shall be honored if doing so does not require an excessive amount of research or retrieval time of city employees, does not excessively interfere with essential governmental functions, and if payment therefor is made in advance.
(d) The City Clerk, the Department head or other person receiving a request for inspection and copying shall respond thereto by:
1. providing the requested Public Record;
2. acknowledging that the request has been received and advising the requester of the estimated time necessary to provide the requested information; or
3. denying the request.
Additional time required to respond to a request may be based upon the need to clarify the intent of the request, to locate and assemble the information requested, to notify third persons or agencies affected by the request, or to determine whether any of the information requested is exempt and that a denial should be made as to all or part of the request. In acknowledging receipt of a public record request that is unclear, the requester may be asked to clarify what information is sought. If the requester fails to clarify the request, further response to the request shall not be made.
Denials of requests must be accompanied by a written statement of the specific reasons therefor.
Whenever a request for inspection and copying has been denied in whole or in part, the requester may present the matter to the City Attorney for review; such review shall be conducted as promptly as reasonably possible, and shall constitute final action for the purposes of judicial review.
Section 2.10.040. Research not to be Performed; Public Records not Sufficiently Identified
Written requests for inspection and copying of public records shall not be honored if such requests require city employees to compile information, perform research, require reformatting of data, if the Public Records sought by the requester are not sufficiently identified, or if the information requested to be inspected and copied consists of Non-Public Records.
Section 2.10.050. Certain Public Records Exempt From Inspection and Copying; Deletion of Exempt Portions Thereof:
Public Records described in RCW 42.17.310, 42.17.318, 42.17.31901 and any other Public Records exempt from public inspection and copying by the laws of the State of Washington, shall not be available for public inspection and copying; provided, however, when exempt portions of Public Records can erased, excised or deleted, the remainder thereof shall be open to public inspection and copying.
Section 2.10.060. Electronic Communication Initiated by City Council Members:
Electronic communications (e-mail) initiated by members of the City Council and simultaneously directed to three or more other members of the City Council are declared to be Public Records and subject to public inspection and copying. Such communications, prior to deletion from electronic storage, shall be printed on paper or transferred to a diskette or similar medium and retained in the office of the City Clerk.
A printed transcript of or diskette containing such electronic communications shall be available for public inspection and copying.
Section 2.10.070. Electronically Stored Data and Information
Public Records in the form of information or data which is electronically stored (on the memory of a computer, a diskette, a magnetic tape, a compact disc, or in other similar ways) shall be subject to public inspection and copying in the following manner:
(a) Information or data that is publically available by computer access without submission of a request for inspection and copying, may be inspected and copied by any person or persons having access to computer equipment capable of such inspection and copying. Subject to budget and financial constraints, public access computer equipment may be made available without charge by the city at public locations.
(b) Information or data that is not publically available by computer access without submission of a request for inspection and copying, but which constitutes Public Records and is stored, contained or available as data or information within the memory or storage facilities of computer or electronic equipment, is subject to inspection and copying only with the cooperative services of city employees familiar with the operation of equipment that permits such inspection and copying to occur. When Public Records are adequately identified by the requester, a city employee designated by the City Clerk or other appropriate department head, shall examine the information to determine if it contains exempt or Non-Public Records. If such examination reveals any data or information that is exempt from public inspection and copying, the requested Public Record shall be printed on paper or transferred to a diskette or similar medium with the exempt portions thereof deleted; if the examination reveals any data that is Non-Public Record, inspection and copying thereof shall not be permitted. If the examination reveals no exempt information and no Non-Public Records, the person requesting inspection and copying, at his or her option, may either view the information on a computer screen, have the information transferred to a diskette or other compatible storage medium, or ask that the information be printed on paper. Provided, however, that the viewing of such information on a computer screen shall not be permitted except where the computer is operated by a city employee and where diverting such city employee from his or her regular duties in order to operate such computer to permit such viewing would not cause excessive interference with essential functions of the city.
Section 2.10.080. Costs and Expenses for Inspection and Copying:
The city shall impose no charge for the services of city employees who assist in inspection and copying of Public Records; provided, however, that if a city employee performs research other than information and/or data retrieval, a charge equal to the hourly wages of such employee shall be paid by the person requesting the performance of such research.
Copies of printed material shall be charged at the rate of $.10 per page if performed on city-possessed copying equipment. More than 50 pages (81/2"; x 11"; or larger) shall not be copied on city-possessed equipment in response to any single request for inspection and copying; such copies must be performed by a commercial copy-maker at the expense of the requester. The city will arrange for such copies to be made, however, payment to the city by the requester shall be made in advance. If it is necessary to have copies made commercially due to size or configuration of the information sought to be copied, the requester shall pay the city in advance the cost thereof.
The cost of video tapes or reproductions, magnetic tapes, diskettes, photographs, pictures, and other communication media material necessary to make copies of Public Records shall be at the cost of the requester, payable in advance before copies are made.

Sample Only

Longview, WA Administrative Policy Concerning Electronic Data

Longview, WA
Administrative Policy Concerning Electronic Data