Subjects › Information Services › Electronic Records, Public Disclosure and Privacy

Electronic Records, Public Disclosure and Privacy¹

Presentation to the Washington State Association of Municipal Attorneys, Spokane, WA, October 5, 2000, by Steve Gross and Ted Inkley, Seattle City Attorney's Office ²

[The citations in this article have been changed to match the recodification done through the 2006 Public Records Act.]

Introduction
Electronic Records - A Primer
What Laws Apply?
Application to Electronic Records
A Suggested Approach
Suggested Links
Footnotes

A. Introduction

When it comes to who can find out what about whom, the information superhighway is proving to be a two-way street.

This is especially true for governmental agencies, which are beginning to discover that the same computer databases that make it efficient to compile and store information about the business of government are easy pickings for public disclosure requestors who may have their own agendas.

On one hand, the computers on our office desks, and the government databases to which they have access, are a far more efficient way to store and retrieve information about the government's functions-from issuing dog licenses or building permits to collecting taxes-than were old-fashioned paper files.

On the other hand, those databases are subject to the same Public Disclosure Act that applies to paper files (or in the case of court records, the same common-law right to inspect and copy).

This generally means that, unless some PDA exemption applies, any "identifiable records" in your City's databases must be turned over to any citizen, newspaper, or commercial interest that makes a request.

Why is this such a big deal, and why should you care?

For one thing, requests for electronic records present a number of issues for a public lawyer trying to apply a 1970s law to 21^st-century technology. For example:

When programming or data analysis is required to obtain access to specific information contained in a database, have you provided an existing "identifiable" record, or are you creating a new one?
If a requestor asks for a record in electronic format, do you have to provide it that way?
When providing a record in electronic form, what may you charge for "copying" costs?
If your computer and that of the requestor speak different "languages," do you also have to provide the means to allow the requestor's computer to understand the data?

But perhaps even more important than these legal questions are the privacy issues presented by the disclosure of electronic databases. Such databases contain a great deal of information about those who do business with government or whose lives government touches. Much of that information must be provided by citizens as the price of doing business with government (getting a building permit, or receiving public aid, for example).

And while that same information may have been contained in the paper files of a quarter-century ago, it is now much easier for the requestor to get at, to compile, and to combine that information with other databases.

This has led to an erosion of what has been called the expectation of "practical obscurity" in the records the government maintains about its citizens. As the United States Supreme Court said in a case dealing with the issue of disclosing compiled criminal "rap" sheets under the federal Freedom of Information Act:

Plainly there is a vast difference between the public records that might be found after a diligent search of courthouse files, county archives, and local police stations throughout the country and a computerized summary located in a single clearinghouse of information. ³

With an increased level of concern about individual privacy as it relates to commercial use of databases, it seems as if it is only a matter of time before the public becomes increasingly concerned about the use of government databases. For example, Governor Gary Locke issued Executive Order 00-03 on April 25, 2000. That Order requires state agencies to: (1) protect the confidentiality of sensitive personal information; (2) prohibit the sale by state agencies of personal information; (3) limit collection and retention of personal information; (4) notify citizens that information the citizens provide to the state may be subject to public disclosure, and (5) establish procedures for citizens to review and correct (if necessary) that information. ⁴

The opportunities and dangers presented by the disclosure of computerized records are neatly summarized by a recent New York Times story about a San Francisco company that specializes in gathering and compiling information (much of it from government databases) about voters. The company, "Aristotle," creates sophisticated profiles of individual voters so political candidates can target them in their advertising. According to The Times:

Drawing on state motor vehicle registrations, the Postal Service and Census Bureau, among other sources, the Aristotle databank includes a person's age, sex, telephone number, party affiliation and estimated income, whether he or she rents or owns a home, has children, and has an ethnic surname. It also provides the make and model of voters' cars, whether they are campaign donors, their employer and occupation, and how often they vote. A dollar sign pops up next to a voter identified as a "Fat Cat." ⁵

Among other things, Aristotle's profiles are used to send banner Internet advertisements directly to the home computers of targeted voters. (The uninitiated may not realize that the advertisements atop their Internet "start page" and in commercial websites may be targeted to them individually as a "profile" customer based on information compiled from databases, or even from "cookies" sent directly to their computers.)

And the growing business of mining government databases has not bypassed the Northwest. At least one Seattle newspaper has a research editor for electronic records and has emphasized compiling and analyzing government databases for its stories. Obtaining government databases and re-selling them also means big money for commercial interests.

So like it or not, Washington's cities are being forced to face the issues raised by the disclosure of electronic records. We do not pretend to have all the answers in this emerging area of the law; we simply want to raise your awareness about these issues now, so you can consider the legal and policy ramifications and take action before you face your first lawsuit.

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B. Electronic Records - A Primer

1. Compiled Databases: A Wealth of Sensitive Information and a Natural Target for Disclosure Requests

Government "files," such as construction, street use, and special-event permits, as well as financial, tax, public-assistance and court records, are increasingly taking the form of compiled electronic databases. Scanning and electronic transmission technologies even make it possible to store entire permit applications, as well as court pleadings and other papers, in electronic form.

Comprehensive statewide electronic court databases are increasingly utilized. Washington's Judicial Information System (JIS), for example, soon will be able to keep in electronic form all the records now found in individual court files around the state. ⁶ Federal courts are developing a system by which electronic case files could be available via the Internet. ⁷

These databases supplement and may eventually replace paper files. Unlike a paper file relating to an individual matter, however, electronic databases contain information--some sensitive or confidential--about thousands of persons who either willingly or unwillingly are involved with governmental agencies and the courts. Depending on the database, this information could include home addresses and telephone numbers, criminal histories, probation reports, sensitive medical information, drug and alcohol evaluations, financial information, and so forth.

But it is precisely this wealth of easy-to-compile information (not to mention the fact that court files deal with crime, punishment, murder, mayhem and other matters of interest to the press and public) that increasingly leads requestors to view databases as a rich source of information about how governmental agencies, including courts, police, prosecutors and probation officers, do their jobs.

One example is a recent Seattle Times story on the race of persons stopped and cited for traffic offenses in Seattle. Using citation information contained in the Seattle Municipal Court database, the story concluded that African-Americans were the subject of a disproportionate percentage of stops and citations. ⁸ Commercial interests also view court databases as a gold mine. For example, one large commercial data re-seller offered to pay the JIS to produce an enhanced "index" report containing added data fields. (The offer was declined. But JIS is adding new data "fields" to its "index" reports. We discuss this in more detail below.)

There is no doubt that these records can reveal information concerning legitimate matters of public concern and scrutiny. There is also no doubt that the public has some right of access to these records. Nonetheless, requests for electronic records, especially databases, raise troubling issues; among them:

If a record is electronic, is it possible for an agency to separate information that it is prohibited from releasing, such as medical information, from information that it must release?
How does an agency "flag" privileged or confidential information when that information is collected, and how does that "flag" follow the information from one electronic record to another?
Does the technology that allows separate databases to be combined allow a person to take information that is not individually identifiable and link it to an individual? Do or should governmental agencies have a duty to either not collect this information, or to not put it into a format where it can be linked to an individual?
Is it possible for a court to "seal" sensitive "papers" in an electronic file, to keep them "separate" from other documents if a disclosure request is made?
Can a judge exercise meaningful discretion when asked to release database information involving hundreds or even thousands of cases?
Is it possible for a court to release database information involving multiple cases without releasing inaccurate or outdated information, or personal information that could endanger a victim, or non-conviction data about a defendant?
Can a court provide information from electronic databases while respecting privacy interests without wasting hundreds of hours of staff time combing through records before their release?

The answer to these questions is a resolute "it depends." While the issues are new and the law largely untested, however, we can suggest some approaches that may increase a governmental agency's ability to deal fairly and efficiently with these requests.

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2. But ... I'm a Lawyer, Not a Computer Programmer! What Is This Database Stuff, Anyway?

Fortunately, they are really not that complicated (databases, that is - clients are another matter entirely). It is possible to think of a database in non-electronic terms.

Take your typical case file, for example. It has particular records-for example, a letter, memo, or brief. A particular electronic record is almost the same as a single paper record. The difference is that where the paper record may contain information in the form of words, charts, and pictures, the electronic record contains the same information in distinct "fields." The paper-based case file folder is a compilation of the related records in your case file.

Similarly, an electronic database in its simplest form is merely a collection of electronic records. A request for a particular paper or electronic record is clearly a request for a record. A request for the entire paper file folder or for the entire database also may well be a request for a record.

The "file/folder" analogy is useful to a point, but it becomes less useful when you consider the power of "relational" databases. A relational database combines data from several records made up of simple data fields (like particular words or pictures in a paper document). Each record has an identifier (e.g., "file#") allowing it to be related to other records so that, together, the simple data fields combine to represent a more complex entity. Only by relating these fields to each other does the database become a useful tool, both to our clients and to the people requesting information from the database.

Arranging data is what a relational database does - it puts pieces of data together in a useful format. Looking at Figure 1, if you were to look at a printed copy of the table named "DEPT" you would see what looks like a spreadsheet with many rows but only three columns. Those columns would tell you the department code, the department name, and the department category. If you looked at a printed copy of the table named "EXPENSES", you would see five columns that describe how much is paid out for each claim number. Separately, those tables provide little usable data. However, by relating the DEPT table to the EXPENSES table (via the CLAIMS table, which links the two) you can tell how much the City has paid for claims relating to each City department.

A paper record is usable only because the data (the words, charts and pictures) are laid out on the page in a manner and language that you can read. The electronic record contains information that cannot be read at all until it is called up on a computer screen or printed out and, once read, might make no sense to the reader. Therefore, while a requestor can search out the same information by going through paper records, it is much less time consuming for that requestor to either copy an entire database and electronically sift through it, or to get a governmental agency to do the sifting for the requestor by producing a custom report.

We will return to databases, and the public disclosure issues they raise, in Section D of this paper.

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C. What Laws Apply?

1. The Public Disclosure Act

Disclosure requests for records other than court "case files" are governed by Washington's Public Disclosure Act ("PDA"), found at RCW 42.56.040 et seq. It begins with a strongly worded mandate ⁹ for the broad disclosure of public records:

The people of this state do not yield their sovereignty to the agencies that serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may maintain control over the instruments that they have created. The public records subdivision of this chapter shall be liberally construed and the exemptions narrowly construed to promote this public policy. ¹⁰

In other words, unless a specific exemption applies, you must turn over "identifiable records" upon request. ¹¹

2. Does the PDA Govern Disclosures of Electronic Court Case- Information Databases?

We believe the answer should be "no." The result, however, may depend on what kind of information the database contains. First, some background:

a. Nast v. Michels and "Court Case Files"

In the Darker Ages at the beginning of the cyber-revolution (1986), Washington's Supreme Court held in Nast v. Michels that the Public Disclosure Act, or PDA, does not apply to what it called "court case files." ¹²

The Nast court based its holding on three rationales: (1) the common law already provides access to court case files; (2) the PDA does not specifically include courts or court case files within its definitions; and (3) to interpret the PDA to include court case files would undo the developed law protecting privacy and governmental interests in those files.

Emphasizing the privacy issues involved in releasing court files, the justices said that applying the PDA to these files would "undo" the law that has developed concerning the privacy of certain court records and would:

... place on the court clerk the onerous burden of deleting personal information and justifying such deletions. This is an unreasonable burden when one considers that court case files by their nature involve personal, private matters. ¹³

While the Nast court recognized the general common-law right of access to court case files, the justices added that the "trial court" still has much discretion to determine what will be released from its records:

The common law right to inspect and copy judicial records ... is not absolute. "Every court has supervisory powers over its own records and files, and access has been denied where court files might have become a vehicle for improper purposes." [citation omitted] Court case files are generally available except where specific reasons exist for not disclosing a case file, e.g., adoption files, and juvenile files. "Because of the difficulties inherent in formulating a broad yet clear rule to govern the variety of situations in which the right of access must be reconciled with legitimate countervailing public or private interests, the decision as to access is one which rests in the sound discretion of the trial court." [citation omitted] ¹⁴

The Nast court also said that the common law and not the PDA applies to "court case files" even if they are maintained by a non-court agency:

Although [the King County Dept. of Judicial Administration's] funding and directives place it within the executive realm, its functions as custodian for court case files place it within the judicial realm. "Courts have the inherent authority to control their records and proceedings." [citation omitted] Court case files are generated by litigation activity occurring solely in the judicial branch of government. A decision regarding PDA access to court case files should not vary between superior courts because of the administrative alignment of the clerk's office. ¹⁵

b. ARLJ 9

Following Nast, ARLJ 9 ¹⁶ was adopted to guide municipal and district court judges in decisions about whether to release documents from court files. ARLJ 9 divides certain common records into three categories:

"Public records," which are considered public records "unless the trial judge rules otherwise in a particular case" [Examples: court pleadings, dockets, and tape recordings of court proceedings];
"Private records," which are exempt from disclosure "unless they have been admitted into evidence, incorporated into a court pleading, or are the subject of a stipulation on the record which places them into public records" [Examples: police reports, witness statements, or copies of driving records or criminal history records subject to the Criminal Records Privacy Act, RCW Ch. 10.97]; and
"Quasi-public documents," which are not subject to public review, but may be reviewed by the defendant and his or her lawyer. The list of records included in this category is similar, but not identical, to the list of "private records."

ARLJ 9, like Nast, emphasizes individual judicial discretion exercised by the "trial judge" or "trial court" in deciding whether to release records from court files. ¹⁷

Nast and ARLJ 9 thus give courts more flexibility than government offices subject to the PDA in deciding what records to release.

c. The JIS Data Dissemination Policy

As we discuss further below, however, there is a significant caveat in applying Nast and ARLJ 9 to electronic court records: When dealing with electronic records that are not the court's own, but reside in the statewide Judicial Information System, or JIS, one must apply the JIS Data Dissemination Policy. ¹⁸

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D. Application to Electronic Records

1. The Public Disclosure Act

a. "Public Record": An Inclusive Definition-But How Does It Apply to Data "Compilations"?

Under the PDA, the statutory definition of "public record" includes "any writing containing information relating to the conduct of government or the performance of any governmental or proprietary function ...." ¹⁹ It includes:

... 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 data compilations from which information may be obtained or translated. ²⁰ [emphasis supplied]

In other words, pretty much everything that is produced, maintained, or used by your clients, regardless of the physical format in which it lives. While the PDA has been amended over the years, it is at its heart a 27-year-old law with an identity crisis borne of the Information Age. In the same way current tax laws have not kept up with e-commerce, the PDA has not kept up with the new methods of collecting, collating, and maintaining information.

Our discussion today focuses on the final clause in the PDA, "data compilations from which information may be obtained or translated," and how that clause relates to other parts of the PDA and other applicable laws. Because the PDA only requires an agency to provide "identifiable records," the recurring question we hear from our clients that maintain and manage databases revolves around requests for information contained in a database -- is it a request for an identifiable record, and if so, how much information do we have to provide, how soon, and at what cost?

b. Requests for Part of the Database v. Requests for the Entire Database-What Is an "Identifiable" Record? When Are You "Creating" a Record?

i. PDA Tensions

The PDA contains inherent tensions among the statutory mandates requiring our clients to provide full and open access to government records, while at the same time protecting those records²¹ and not unduly violating an individual's right to privacy²² or releasing information that they are specifically prohibited from releasing²³. Some of your clients may not be aware of many of the laws that prohibit the release of certain information. One the other hand, the more sophisticated requestors of public records frequently quote the "strong mandate" language from the statute, implying dire consequences for anything but an immediate and complete response to their request.

On one hand, the PDA requires our clients to adopt rules that "provide for the fullest assistance to inquirers and the most timely possible action on requests for information."²⁴ They may not charge for the time spent searching for, gathering, and retrieving the records.²⁵ If records are exempt from disclosure, our clients absorb the cost of sorting, evaluating, redacting, and preparing for inspection all of the records.

On the other hand, our clients are only required to respond to requests for "identifiable public records."²⁶ They are not required to read the requestor's mind, thereby translating a request for information into a public records request. The Act does not require agencies to research or explain public records, but only to make those records accessible to the public.²⁷ If a record does not currently exist, our clients are not required to create one.²⁸

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ii. Requests for Specific Database Information

There is often a difference in responding to a request for paper records depending on how those records are filed. Similarly, there may (or may not) be a difference in how your client must or should respond to a request when a requestor asks for parts of a database instead of the entire database.

If a database is analogous to a filing cabinet full of records, then providing a copy of an entire database is merely providing the copy of a record clearly subject to disclosure. Perhaps the tougher question under the PDA, however, is how to characterize a request for specific information from a database. Let us look at an example: Your client is a city with an animal control office. It maintains a licensing database that contains the licensee's name, address, telephone number, and information regarding the licensee's animals, including type, breed, name, and whether they have been spayed or neutered. The database also contain notations of incident reports related to the animal, such as bites, noise complaints, dates and times when the animal got loose and was picked up by animal control, and results of charges filed in court for violations of the animal control code. The animal control database is maintained by the name of the licensee, in alphabetical order. Additionally, the paper versions of the license applications are filed in alphabetical order by name of the licensee, and the paper versions of incident reports are filed by address.

One bright day, you receive the following request:

I would like a copy of Animal Control records showing the names, addresses, and phone numbers of the owners of un-neutered male Siamese cats that have been picked up by Animal Control since 1997, as well as records indicating whether the owners have been prosecuted for having their animals at large, and the dispositions of these cases.

Is this a request for information? If so, our clients are not required by the PDA to respond to that request (although ignoring requests from citizens will not likely be considered good practice by most government employees, and will likely result in phone calls to council members).

Is this a request for identifiable records under the PDA? The answer to this question may well depend on how you interpret the language of RCW 42.17.020(48) concerning "data compilations." Here are the options:

a) YES

The argument: RCW 42.17.020(48) says that "data compilations from which information may be obtained or translated" are writings subject to disclosure. The license and "pick up" files are records. The animal control database is a data compilation. Our requestor has clearly identified which records he or she wants to see. Since it is our clients' obligation and duty to find records that respond to requests for identifiable records, they are required either to search all of the paper files to find those that respond to this request, or they are required to create a custom report in the database and provide a list.

b) NO

The argument: Since animal control does not maintain its paper records by the criteria in the request, it would be required to do research for the requestor. The Bonamy court says that the statute does not require an agency do so. What about the database? A strict reading of the phrase "compilation from which" seems to refer only to the entire database. Extending Bonamy to electronic records may mean that your clients could take the position that, if they do not currently create a report that provides the requested information, they are not required to perform custom searches or to provide custom reports in response to the request.

There is no clear answer. One way to analyze this question is to ask whether the information that is sought from the database can be easily retrieved. For example, if any clerk (or even a lawyer) can sit down at a computer and extract the information, it may not be the creation of a new record. On the other hand, if it takes a computer analyst or programmer to write a special program to link records that are not normally linked, it may more clearly seem as if the City is being asked to create a document that does not exist.

(There is no controlling case law that helps us decide this matter. Although at least one trial court has required production of an entire database, neither the courts nor the legislature has addressed this issue. The only recent action even remotely related to databases was the legislature's expansion of the "valuable formula" exemption in RCW 42.56.270 to include computer source and object code.)

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iii. Other Considerations

a) Who gets to decide the electronic format in which the document is provided?

It seems illogical to interpret the PDA so that it would require an agency to purchase a new software system merely for the purpose of providing information in the format specified by a requestor. On the other hand, if your existing systems are capable of converting the information into a format that is readable by the requestor without much trouble, it may arguably fall within the "provide fullest assistance" provisions of the PDA.

b) What if I give the requestor the database, but the requestor does not understand the structure?

There is no clear answer. Since a database contains not only the data but also the instructions that tell the computer how to relate one field to another, the database may be useless without a "data dictionary" that explains the field names and how they relate to one another. Additional issues are whether the data dictionary is a public record, and if it is, whether it is exempt as a proprietary document. Until the legislature or the courts speak to this matter, your clients will need to develop a policy that states how much assistance they will provide to requestors, and at what cost.

c) How much can I charge?

This may not be as tough a question as it appears. While the PDA only talks specifically about the costs for photocopying paper records, it clearly allows an agency to charge "reasonable" costs of copying. Therefore, you may well be able to charge for the actual cost of the media upon which you copy the electronic information, and for the time spent actually copying the information. (Remember that RCW 42.56.070(8) limits you to $.15 per photocopied paper page - it does not address other media.) What is left unclear is whether you may charge for the time to develop the queries necessary to extract the information from the database.

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2. Court Case-File Records

a. The Court's Own Case-File Records

Although Nast and ARLJ 9 undoubtedly were written with paper records in mind, they should logically apply to electronically stored court "case-file" records as well. The court in Nast said essentially that, where court case-file records are stored and who stores them does not make a difference;²⁹ neither, then, should the form in which those records are stored. Information in electronic court records also raises the same kinds of privacy issues that concerned the Nast court. (Besides, the PDA specifically includes electronically stored records within its reach;³⁰ the same logic should apply to records that fall under Nast.)

But you should be aware of one additional definitional question: What, in a court's electronic database, is the equivalent of the court "case file" that Nast said was not subject to the PDA? The Nast court did not define this term, except to note in another context that court case files are "generated by litigation activity occurring solely in the judicial branch of government" and to quote the parties' stipulation about the kinds of files in question (but not, for the most parts, their contents).³¹

However, even a conservative reading of Nast should logically allow a court to assert that any information or document of the kind traditionally kept in a paper case file (for example, police reports, witness statements, pre-sentence reports, alcohol evaluations, docketing and bail information, criminal histories and the like) is subject to Nast and ARLJ 9 rather than the PDA.

One note of caution, however: A court may share an electronic database with other criminal justice agencies or use it to store information that would not be in a paper court case file. To the extent this occurs, a requestor may argue that at least some information in the database is subject to the PDA. Also keep in mind that court records other than case files (its personnel files, for example) are subject to the PDA.

With these caveats in mind, however, application of Nast should allow courts the twin luxuries of judgment and flexibility in decisions about whether to release their own records-luxuries not afforded other branches of government under the PDA.

Another note: Courts also should be aware of the issues, discussed above, concerning whether supplying information from a database is providing an existing record or creating a new one. We believe it is clear that the PDA does not apply to court case files kept in database form; however, the common-law right of access to court files, like the PDA right of access to agency files, logically should apply to existing records only. Courts, like agencies subject to the PDA, should not be required to create a record that does not exist.

b. JIS Records

Courts should be aware that the flexibility described in the preceding section relates only to the court's own case-file records. Most State courts are part of the statewide Judicial Information System, or JIS, and enter data directly into that system. Requests for disclosure of JIS electronic records are governed by the JIS "Data Dissemination Policy."³²

Thus, it is useful to understand the JIS policy and the debate about how the policy should be changed.

The JIS policy governs requests for computer-based information from the Judicial Information System, a central repository for Washington's court case records. The system is operated by the Office of the Administrator for the Courts (OAC). Most State courts currently enter certain case information directly into the JIS system.

As currently written, the JIS policy makes a sharp distinction between individual, or case-specific, records and so-called compiled reports, a term it defines to include electronic records that relate to more than one case or one court.

The current written policy allows access to case-specific electronic records to the same extent that access would be provided to an individual court file in paper form. On the other hand, it limits the dissemination of compiled reports on an individual to those outside criminal justice agencies. That dissemination is limited to so-called "index-report" information, which includes:

Filing date.
Case caption.
Party name and relationship to the case (for example, plaintiff or defendant).
Cause of action or charge.
Case number or designation.
Case outcome.
Disposition date.

The committee that drafted the policy explained the limits it placed on information contained in index reports by noting that:

... the ability of the computer to search and compile summaries of records across cases, and courts, represents a major new capacity for intrusion into the privacy of citizens, when compared to access to similar records in hard-copy files.³³

The current JIS written policy also prohibits the direct downloading of electronic information other than index reports because "such databases cannot thereafter be corrected or expunged, or access limited by court rule or specific court order."³⁴

The current JIS policy distinction between individual and compiled records, however, is under assault by the media and commercial interests. They are pressing-with some success-for access to compiled "index" reports that contain more personal identifying information.³⁵

Following vigorous debate on this topic, the JIS Committee recently agreed to add more information to index reports. A final decision about all the new data "fields" will not be made until issues of technology and accuracy can be resolved. But information that has been or may be added to index reports includes among others,defendant gender, race and five-digit (but not nine-digit) zip code, dates of birth, and so forth.

Some see this added information as a further erosion of individual privacy. Others think the distinction between compiled and individual reports should be erased completely. They believe the new ability to store and analyze data about multiple cases simply increases the ability of the public and press to find out how the government is doing its job.

Those who have opinions about the privacy issues related to release of JIS records would do well to follow, and become involved in, the continuing JIS policy debate. If you would like more information about the JIS policies or wish to be informed of JIS Data Dissemination Subcommittee meetings, you should contact Kathy Kuriyama OAC, at 360-753-3365. (This debate is far from academic, since it governs the dissemination of data that originates in most State courts.)

Those who deal with (or advise those who deal with) JIS records also should acquaint themselves with the Judicial Information System Committee (JISCR) rules. See, for example, JISCR 11, concerning "Security, Privacy and Confidentiality," and JISCR 15, concerning "Data Dissemination of Computer-Based Court Information." (JISCR 15(e), concerning the information that must be supplied by the requestor; and JISCR 15(f), concerning criteria to determine release of data, are of particular interest.)

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E. A Suggested Approach

With the above information and issues in mind, how should you approach requests for disclosure of electronic records?

1. What Does Everyone Else Do?

First, you may ask, what approach is taken by governmental entities in other jurisdictions.

Unfortunately, there are not many entities with similar laws for comparison. The Department of Defense applies a "standard of reasonableness." It says that:

when responding to [Freedom of Information Act] requests for electronic data where creation of a record, programming, or particular format are questionable, ... if the capability exists to respond to the request, and the effort would be a business as usual approach, then the request should be processed. However, the request need not be processed where the capability to respond does not exist with a significant expenditure of resources ... of time and manpower, that would cause a significant interference with the operation of the ... automated information system....

Department of Defense ("DoD") Regulation 5400.7-R, paragraph C1.5.7.2 (1998).

Texas requires the provision of information even if it doing so requires programming or manipulation of data. However, it also lets the agency tell the requestor how much work it will be, how long it will take, and how much it will cost before it is required to undertake the work.³⁶

For federal agencies, the federal Freedom of Information Act³⁷ is balanced by the federal Privacy Act,³⁸ which provides citizens with certain protections regarding information about them that is contained in federal records. We recommend that you review both of these Acts, since time and space limitations prohibit a lengthy discussion here. However the DoD regulation providing guidance regarding responding to Freedom of Information Act requests best summarizes the relationship between providing public access to records and protecting information about individuals. DoD Regulation 5400-7R, Paragraph C1.4.8 reads as follows:

Public Interest. The interest in obtaining official information that sheds light on an Agency's performance of its statutory duties because the information falls within the statutory purpose of the FOIA to inform citizens about what their Government is doing. That statutory purpose, however, is not fostered by disclosure of information about private citizens accumulated in various Governmental files that reveals nothing about an Agency's or official's own conduct (Emphasis added).

Federal law, unlike Washington law, draws a clear line between information that shows what government does and how it does it, and private information that just happens to be in governmental files. Going back to our animal control example, under federal law it is likely that the requestor would be entitled to a list of un-neutered male cats that have been picked up by animal control since 1997. Even the owner's names may be relevant, since that information could be used to show how the animal control authority deals with this type of activity. But the owners' addresses and phone numbers, being merely incidental to the functioning of the animal control authority, could likely be withheld.

Your clients that operate under the PDA, however, do not have the same options as do federal agencies that operate under FOIA. As we have noted, courts subject to Nast and ARLJ 9 do have more discretion as it relates to their own records-but must exercise that discretion in the context of the common-law right of access.

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2. So, What Do We Do About Requests for Information from Databases?

Ultimately, of course, it is your client's call. On one extreme end of the spectrum is the "give it all up" approach which, it could be argued, is consistent with the intent of the PDA. In doing so, however, your client should budget for extra programming time and/or review its database structure to see what types of data it has compiled.

On the other end of the spectrum is the "it is not an identifiable record" approach, which appears to be consistent with the current exemptions and the recent decisions in Bonamy and Okanogan County. Even if your client chooses to take a position on the "it is not a request for an identifiable record" end of the spectrum, it may want to consider a compromise position by saying "there is no identifiable record that exists that we are required to produce under the PDA. However, we will create a custom report for you at our cost."

3. General Suggestions

With Bonamy, Okanogan County, and Nast in mind, how might cities further approach questions concerning the release of electronic records, and what issues should it consider?

a. Be Careful What Records You Create--and What Information You Put in (and Release from) Compiled Electronic Records

First, cities should ask themselves what records they really need to create, and what information really needs to be contained in those records.

This is particularly true of compiled records. Because of the nature of these records, their release may involve the greatest risk to privacy, the greatest danger that inaccurate information will be released, and the smallest opportunity to exercise meaningful discretion about individual records (How, for example, does a judge exercise informed discretion when asked to release a compiled record containing information about 5,000 cases?)

To avoid issues like these, you may decide to maintain and produce compiled records that contain only information of the sort that does not seriously risk invading privacy or compromising personal safety.

This compiled database would serve as an "index" to individual files; anyone who wanted to discover more about a particular file would have to look at that file individually. That way, the agency could review the individual file for exemptions and would not have to deal with the risk of potentially releasing private or inaccurate information from compiled records. (The flip side of such a policy, of course, is that individual file review can be a potentially arduous and time-consuming process. However, individual document review has always been a by-product of responding to disclosure requests.)

Although this may seem to be an obvious solution, it is one that we find governmental agencies sometimes miss in designing the reports produced by their computer systems. The lesson: Do not produce reports you do not really need containing information you would rather not disclose.

As an alternative, the city could maintain confidential information in its compiled reports, but "flag" that information to help prevent inadvertent release (see more about this in Section b, below). This confidential information could then be deleted from compiled reports released to the press or public.

Courts, however, should note that this option is open to them only with respect to their own records, since the JIS Data Dissemination Policy governs release of JIS records. The answer for JIS records: Stay involved in the debate that is shaping the statewide policy.

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b. Determine in Advance What Records May Be Confidential and "Flag" Them in the Electronic File

Good file management-including carefully noting and segregating exempt, private, or sensitive records or data fields at the time they are placed in the file-is essential whether or not files are maintained electronically.

Failing to do this obviously increases the opportunity for inadvertent release of harmful information (not to mention being unfair to public disclosure officers and the employees who work at the public-access file window). But it can also be a waste of time, since someone is going to have to review the file anyway when a disclosure request comes .

This practice may be especially important for court records. Unless a contemporaneous record is kept, it may be virtually impossible after the fact to tell what should be released and what should not. For example, ARLJ 9 says that police reports are not public records "unless they have been admitted into evidence, incorporated into a court pleading, or are the subject of a stipulation on the record which places them into public records." If a police report is just stuck into the court file without explanation, how can you expect to determine months or years after the fact whether or not it is "public"?

But good file management becomes even more important when dealing with electronic records.

With a paper file, it is easy to stick "private" documents in an envelope marked "confidential" to segregate them from the rest of the file. But it is not so simple with electronic records. Although it is possible to "flag" confidential documents and information in an electronic file (including allowing access to certain confidential "tables" only with use of a password), that can only be done if the system is properly designed.

Also, those who enter confidential electronic documents must be trained to use the confidential "flag." (One suggestion for the cautious: You might consider designing systems for certain types of records so that the "confidential flag" is the default; that would force those doing data entry to make a conscious decision about whether a record is public. Social services agencies may wish to flag medical and drug and alcohol treatment records. Courts also may wish to flag entire files of certain types, such as domestic-violence cases.)

For court records, judges also should be strongly encouraged to make decisions about the confidentiality of records and information entered into electronic case files at the time of entry, and to take the time to make sure the records and information are properly flagged.

This obviously reduces the risk of later mistaken release. But the flagging of confidential records or information in individual electronic files also allows (with proper system design) the later production of compiled reports in which the same confidential information is similarly flagged.

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c. With Respect to Its Case-File Records, the Court Should Exercise Reasoned Discretion When Deciding What Records to Release from Electronic Files-and Should Develop an Electronic Records Disclosure Policy

As we have noted, both Nast and ARLJ 9 emphasize the importance of individual judicial discretion in deciding what to release from court case files. As the Nast court said, allowing this discretion is important "because of the difficulties inherent in formulating a broad yet clear rule to govern the variety of situations in which the right of access must be reconciled with legitimate countervailing public or private interests"³⁹

As we have also noted, this discretion allows courts the twin luxuries of judgment and flexibility in deciding what records to release from a court's own case files. But the flip side of these luxuries is the responsibility to exercise reasoned judgment.

A municipal court judge is not likely to be reversed for a reasoned decision not to release a record from the court file. Superior and appellate court judges, after all, have their own files over which they would like to maintain control. On the other hand, the refusal to exercise any discretion (declining to look at the file at all, or turning over complete responsibility to clerks) might well be seen as an abuse.

Exercising discretion is a potentially time-consuming but straightforward process when applied to individual files. But how does a court apply this discretion to release its compiled reports?

Our suggestion: Each court that maintains its own database should develop a dissemination policy for its own electronic records, including compiled records (again, with the caveat that the JIS policy governs JIS records). In developing the policy, the court should solicit and consider written input from interested "parties," such as the press, prosecutors and defense lawyers, and perhaps even privacy experts. The court also should articulate the reason for its policy decisions, keeping in mind Nast and ARLJ 9. The court might even consider holding a "hearing" to receive testimony about the policy before it makes a decision.

We believe this process will produce a result akin to the reasoned exercise of discretion by the "trial judge" about individual case files contemplated by Nast, and will avoid the necessity for ad hoc decisions when the inevitable requests come.

d. Cities Should Train Managers, Judges, Clerical Employees, and Computer Systems Personnel on Privacy and Disclosure Issues and Should Provide Ready Access to Public Disclosure Expertise

Finally, cities should make sure that all its personnel-from managers to judges to clerks at the public-access window-receive training on privacy and disclosure issues. This training should extend to the computer systems personnel who increasingly are asked to respond to disclosure requests for electronic records. Cities also should not ask line staff to "wing it" in responding to complex disclosure requests for electronic records. Everyone who deals with these requests should have ready access to informed advice from trained public-disclosure officers-and, if necessary, from their legal advisors.

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Electronic Records, Public Disclosure and Privacy1

Presentation to the Washington State Association of Municipal Attorneys, Spokane, WA, October 5, 2000, by Steve Gross and Ted Inkley, Seattle City Attorney's Office 2

Contents

A. Introduction

B. Electronic Records - A Primer

C. What Laws Apply?

D. Application to Electronic Records

E. A Suggested Approach

Suggested Links:

Electronic Records, Public Disclosure and Privacy¹

Presentation to the Washington State Association of Municipal Attorneys, Spokane, WA, October 5, 2000, by Steve Gross and Ted Inkley, Seattle City Attorney's Office ²