Public Records Disclosure Caselaw Update
The list below summarizes the significant state appellate cases concerning public records disclosure which have been decided since March 1996, the publication date of the MRSC's "Public Records Disclosure for Washington Cities and Towns."
2012
Germeau v. Mason County, ___ Wn. App. ___ (02/28/2012) Following an off-duty altercation, the county began an investigation regarding a deputy sheriff. The deputy's union representative (Germeau) sought information from the county regarding the investigation. Some information that was sought was not provided and, the representative filed a lawsuit under the Public Records Act. The trial court entered a summary judgment in the county's favor, concluding that Germeau did not have standing to bring the lawsuit and concluding that, even if there was standing, the request for information did not give the county fair notice that it was a public records request. On appeal the court concluded that Germeau did have standing; nevertheless, it concluded that the county had not been given fair notice. Nothing in Germeau's letter put the county on notice that he was requesting records under the PRA; instead, his letter appeared to request documents and ongoing information in connection with the Sheriff's Office's investigation.
2011
Neighborhood Alliance of Spokane County v. County of Spokane, 172 Wn.2d 702 (09/29/2011) The Alliance sought records from the county that would help explain certain hiring decisions. The county provided some records, including a seating chart that existed on a computer. The county, however, did not search an earlier computer for the record, and subsequently that chart that was on that computer was erased. The Alliance sued and, after review by the court of appeals, asked the supreme court to define the scope of discovery allowed in Public Records Act (PRA) provoked lawsuits, and what constitutes an adequate search. The court held that discovery in a PRA case is the same as in any other civil action and is therefore governed only by relevancy considerations. The court adopted Freedom of Information Act (FOIA) standards of reasonableness regarding an adequate search. An inadequate search may be considered an aggravating factor in calculating daily penalties. And, finally, since the harm was done at the time the record's request was made by the Alliance and refused, it may be entitled to recover costs and fees if the agency wrongfully failed to disclose documents in response to its request.
Sargent v. Seattle Police Department, ___ Wn. App. ___ (09/19/2011) A citizen who was arrested following an altercation with an off-duty police officer sought various records relating to the incident. Some of the records were initially withheld, as there was an on-going investigation. Later, after the last witness had been interviewed, the police reports were submitted to the prosecutor. The prosecutor, however, later sought additional information. Among the issues reviewed by the court were whether the police have a continuing obligation to provide the requested records after the initial exempting situation ceases? No; there is no standing request. Interview of the last witness does not necessarily remove the investigation exemption, as additional information could later be sought, as was true in this case. Withholding of identification information requires justification that disclosure would "endanger any person's life, physical safety, or property." Before metadata can be required for disclosure, the disclosure request must also include a request for the metadata.
Mitchell v. Department of Corrections, ___ Wn. App. ___ (09/07/2011) A prisoner, Mitchell, requested records that were held in electronic form and asked that they be sent to him electronically by email. The department advised that the records contained information that would need to be redacted, could not be provided electronically, and thus asked that the prisoner have the records either mailed to him or reviewed by someone acting on his behalf. Mitchell sued, arguing that no exemption statement had been provided, and that the records should be provided electronically. The trial court denied Mitchell's demands, and Mitchell appealed. The court disagreed with the department's argument that it had not denied the records request. The court held that the department was required to provide an exemption report when it failed to provide the requested documents, but it agreed that the records are not required to be provided electronically.
West v. Department of Natural Resources, ___ Wn. App. ___ (08/23/2011) West requested numerous records concerning the department's chief financial officer, including emails. The department made its initial response eleven days after the request. Some of the emails had been lost due to a change in equipment. The department spent considerable time and expense seeking to recover the emails, but the effort ultimately proved futile. West sued. The response was due within five business days. While the response may have been reasonable, it was not timely, since it was given after eleven days. Five days means five days. There was no suggestion that the department intentionally destroyed the records, and it was shown that substantial effort was made to recover them. There was no liability associated with the lost records. The plaintiff also argued improper withholding based on attorney-client privilege; the court ruled against this argument.
Bainbridge Island Police Guild v. City of Puyallup, 172 Wn.2d 398 (08/18/2011) After being stopped by a Bainbridge Island police officer, a driver alleged that she had been choked and sexually assaulted by the officer. Mercer Island and Puyallup police departments investigated the incident and issued reports; the incident was found to be "unsubstantiated" and no charges were brought against the police officer. One of the reports was released, a news account published, and then, in response to other public records requests for the reports, an injunction was sought and granted. On appeal, in a divided decision, the court's lead opinion found that the officer's initial failure to object to the report's release did not constitute a waiver from later objecting, under privacy grounds, to other records' requests. The court concluded that the reports were "personal information" and that the right to privacy had not been lost due to the initial release. The decision found that the release of the officer's identity would be highly offensive; however, release of the reports, with identity information redacted, would satisfy a legitimate public concern. Also, under an argument relating to the criminal records privacy act, the court found that hold that RCW 10.97.080 requires redaction of only criminal history record information and does not exempt information relating to the conduct of the police during the investigation.
Zink v. City of Mesa, 162 Wn. App. 688 (07/28/2011) The Zinks requested numerous records from the city. The city, while satisfying some of the requests, was nevertheless slow in providing others and for various reasons failed to provide some altogether. The Zinks brought a lawsuit. On many of the issues, the Zinks prevailed and the court determined penalties for the city’s failure to follow the public records act. The Zinks objected to the manner the court determined the penalties and the number of days for which penalties applied. The court, on appeal, returned the case to superior court for recalculation of the penalties owed, requiring use of the Yousoufian [v. Office of Ron Sims, 168 Wn.2d 444, 229 P.3d 735 (2010)] factors. The decision reviews each of the situations for which penalties were or should have been assessed.
Gronquist v. Department Of Corrections, ___ Wn. App. ___ (1/20/2011) State prison inmates sought to review various records; they did not ask for copies. Prison policies restricted access to some records and, in other instances, the prison required payment before the inmate could be given copies. The inmates appealed. The court, however, recognized that prison inmates do not possess the same rights as do the general public. The prison may adopt reasonable rules to enable it to carry out its responsibilities and help assure safety for the prison and the public. The court upheld the prison's rules.
Yakima County v. Yakima Herald-Republic, ___ Wn. 2d ___ (1/13/2011) A newspaper sought documents from the court and county regarding attorney costs associated with the defense of two indigent murder defendants. (One of the defendants plead guilty; the other was tried and found guilty and that conviction was appealed.) Having been initially denied the requested records, the newspaper appealed. On appeal the Court affirmed long standing case law and held that the documents prepared by court personnel in connection with court cases and maintained by the court were judicial documents governed by GR 15. It also held that such documents, when transferred to nonjudicial county entities, are governed by the Public Records Act unless they are subject to an additional protective order. The Court held that a trial court has jurisdiction to consider a motion to unseal court documents and is not required to seek permission from an appellate court pursuant to RAP 7.2 when the sealing order will not impact a separate decision on appeal, and that a limited intervention by a third party in a criminal case is a proper procedure after trial has ended. The Court remanded the case to the trial court to determine whether continued sealing of these financial documents is proper pursuant to GR 15(e), given the current posture of the criminal case.
2010
Gendler v. Batiste, 158 Wn. App. 661 (2010) Gendler was seriously injured when a bicycle he was riding had its wheel get stuck in a bridge grating. He sought accident reports from the State Patrol relating to bicycle accidents that had previously occurred on the bridge. The records are provided to the state department of transportation to enable it to make safety changes. The state patrol argued the records, under the "Federal Highway Safety Act," 23 U.S.C. § 409, were privileged such that it need not provide these records. The trial court disagreed and, on appeal, the decision was affirmed. While the records may be exempt by federal law under the department of transportation's responsibilities to improve safety, the state patrol has a duty, independent of WSDOT's federal obligations, to collect data and publish reports "showing the number of accidents, the location, the frequency, . . . and the circumstances thereof." The records should have been provided.
O'Neill v. City of Shoreline, 170 Wn.2d 138 (2010) Is the metadata (data about electronic data) subject to disclosure? On appeal, the Supreme Court has determined that such data is subject to disclosure. The court, in a divided opinion (5 to 4), concluded that an electronic version of a record, including its embedded metadata, is a public record subject to disclosure subject to disclosure. The court also determined that the city should inspect a councilmember's hard drive for the metadata to determine whether it had provided the requested information when it had provided a paper copy as well as other information associated with the the inquirer's request. The case was returned to the trial court to determine whether the city had violated the state's public records disclosure requirements.
Sanders v. State, 169 Wn.2d 827 (2010) Supreme Court Justice Sanders faced possible disciplinary action following a visit he made to a state prison.. The Justice looked to the Attorney General's Office (AGO) for a defense and then later sought records from the State Attorney General's office relating to the disciplinary action. Numerous issues are addressed in the (unanimous) Court's decision. Perhaps the most relevant portion of the decision, however, relates to how an agency responds to a request. If an agency determines that a particular record is exempt, it must not only cite the exemption, it must provide an explanation an exemption applies to the record withheld. Failure to provide an explanation can/will result in an additional penalty to the penalty assessed for improperly withholding a record. As to a majority of the issues raised, the Supreme Court upheld the decisions of the trial court.
Parmelee v. Mathieu, ___ Wn. App. ___, (07/29/2010) Parmelee, a prison inmate, sought a variety of records relating to department of corrections personnel. It was thought that the purpose of the requests was to develop fliers and other materials used to harass the corrections employees. When superior court enjoined the release of many of the records, Parmelee appealed. On appeal the court held that, despite obvious and repeated abuses, prison inmates have standing to request records under the public records act. Although at the time Parmelee filed his records' requests the trial court could not consider Parmelee's intent when determining whether a document was subject to disclosure; the trial court could not consider Parmelee's explicit and volunteered threats in deciding whether to grant the government employee's request for an injunction to protect the individual rights of the government employees. The court further held that the trial court erred when it determined that certain personnel records, intelligence and investigation reports, and portions of compensation records and training records were exempt from disclosure, although remand was necessary to allow the trial court to review the documents in camera to determine whether Parmelee was entitled to them. The court also held that while ordinarily a superior court cannot consider a requestor's intent when determining whether an injunction is appropriate, corrections' employees have the right to seek an injunction to protect their individual privacy rights when faced with an explicit and volunteered threat.
Tobin v. Worden, ___ Wn. App. ___ (06/21/2010) The Tobins requested copies of two letters. One was provided, although in a redacted form, and the other was not, as it had been lost in the copying process. More than a year later, the Tobins brought a lawsuit under the Publlic Records Act. The trial court ruled against the Tobins due to the failure to take action within one-year. On appeal, the court reversed, finding that the county did not claim an exemption for the requested records, nor did it produce a record on a partial or installment basis; it simply provided a single requested document with redactions and failed to provide at all another requested document. Thus, the one-year statute of limitations was never triggered and the trial court erred by dismissing the claims as time barred.
Burt v. Department of Corrections, ___ Wn.2d ___ (05/13/2010) A state prisoner sought information regarding certain employees from the Department of Corrections. The Department notified the affected employees, and the employees obtained an injunction prohibiting the release of the requested documents. The prisoner argues that he should have been joined as a party in the lawsuit that sought the injunction. A divided Supreme Court agreed, finding that the requesting party was necessary to protect his interests and advocate for the release of the documents. (The Department did not object to the injunction sought by its employees.)
Kitsap County Prosecuting Attorney's Guild v. Kitsap County, 156 Wn. App. 110 (2010) [Public Disclosure] A newspaper sought information about county employees, including town of residence. The county provided most of the information, but indicated that it would notify its employees about the request for town of residence information, allowing them to seek an injunction. The county set a date for its response to the paper, but it did not provide the information by that date. Subsequently the employees filed a court action to block release of the information; this effort was ultimately denied. The newspaper sued the county for its failure to supply the requested information. The trial court the trial court found that the County was liable for attorney fees, costs, and penalties. The County argued that because it exercised good faith, the trial court erred when it imposed attorney fees and penalties. On appeal, the Court disagreed. The County requested a reasonable amount of time to determine whether the requested information was disclosable, but it did not make its decision by that date. Although there was no injunction, the County failed to provide the requested information in an attempt to avoid paying fees and fines until the trial court ruled on the legality of disclosure. A request for an injunction is not the same thing as an injunction; the county was required to provide the requested information in a timely manner and it did not.
Koenig v. Thurston County, 155 Wn. App. 398, (04/06/2010) A divided court held that certain documents held by the prosecuting attorney's office could be released: Special Sex Offender Sentencing Alternative (SSOSA) evaluations are not exempt from disclosure, although information identifying the victim and certain third parties (other victims named in the evaluation, and, where appropriate, the victims' family members, friends, innocent bystanders and any other non-expert or non-law enforcement witness) can be redacted; victim impact statements are exempt under the investigative record exemption.
Yousoufian v. Office of Ron Sims, ___ Wn. 2d. ___ (3/25/2010) Another case involving the county's failure or delay in providing public records. The trial court assessed a $15/day penalty; Yousoufian appealed. While the supreme court did set the penalty to be imposed, $45 per day, it also indicated that setting the penalty would not normally be a function of an appellate court. For future cases, the court set out the following factors to help determine the penalty that should be imposed: "In our view, mitigating factors that may serve to decrease the penalty are (1) a lack of clarity in the PRA request, (2) the agency's prompt response or legitimate follow-up inquiry for clarification,1 (3) the agency's good faith,11 honest, timely, and strict compliance with all PRA procedural requirements and exceptions, (4) proper training and supervision of the agency's personnel, (5) the reasonableness of any explanation for noncompliance by the agency, (6) the helpfulness of the agency to the requestor,12 and (7) the existence of agency systems to track and retrieve public records. Conversely, aggravating factors that may support increasing the penalty are (1) a delayed response by the agency, especially in circumstances making time of the essence,13 (2) lack of strict compliance by the agency with all the PRA procedural requirements and exceptions, (3) lack of proper training and supervision of the agency's personnel, (4) unreasonableness of any explanation for noncompliance by the agency, (5) negligent, reckless, wanton, bad faith, or intentional noncompliance with the PRA by the agency, (6) agency dishonesty, (7) the public importance of the issue to which the request is related, where the importance was foreseeable to the agency,14 (8) any actual personal economic loss to the requestor resulting from the agency's misconduct, where the loss was foreseeable to the agency, and (9) a penalty amount necessary to deter future misconduct by the agency considering the size of the agency and the facts of the case."
2009
Neighborhood Alliance of Spokane County v. County of Spokane, 153 Wn. App. 241 (12/15/2009) Suit involving request for computer records. A computer that may have held information sought by Alliance was wiped clean and, thereafter, although Alliance requested information, the computer was not searched. The adequacy of the agency's search is judged by a standard of reasonableness, construing the facts in the light most favorable to the requestor. An agency fulfills its obligations under the PRA if it can demonstrate beyond a material doubt that its search was "'reasonably calculated to uncover all relevant documents.'" The agency must show that it "made a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested." The adequacy of an agency's search is separate from the question of whether the requested documents are found. Also, there is no cause of action under the PRA to enforce the re-disclosure of records known by the requesting party to already be in its possession.
Mechling v. City of Monroe, 152 Wn.App. 830 (10/26/2009) Mechling sought, among other things, e-mail messages to and from councilmembers, received on personal or business computers; she also requested they be supplied in electronic format. While the city supplied some of the requested documents, it redacted e-mail addresses and did not provide the information in electronic format. Mechling sued and, after the superior court found that the city had complied, appealed to the court of appeals. The court held that the e-mail addresses were not exempt and deferred on the issue of providing records in electronic format, leaving whether it was reasonable and feasible to supply the records in that form to the superior court to decide. The court further advised that a document prepared for a purpose other than or in addition to obtaining legal advice and intended to be seen by persons other than the attorney, does not become subject to the attorney-client privilege merely by being shown to the attorney. And the court held that for those e-mail records which the city withheld, it must provide the name of the author and the recipient of the e-mails.
City of Federal Way v. Koenig, ___ Wn. 2d ___ (10/15/2009) Koenig requested judicial records from the Federal Way court; his requests were denied. On appeals the Supreme Court, relying on its decision, Nast v. Michels, 107 Wn.2d 300, 730 P.2d 54 (1986), the Court affirmed its conclusion that the Public Records Act does not apply to the judiciary and the legislature has acquiesced to that decision by not modifying the Act.
Building Industry Association of Washington v. McCarthy, ___ Wn. App. ___ (10/13/2009) The BIAW sought records from Pierce County, including some e-mails that had been destroyed consistent with state retention guidelines. The county provided all of the records it could find, but the BIAW insisted that, since there were two omitted e-mails, undoubtedly there were others. The BIAW provided no evidence at a summary judgment motion, asked for no discovery, and did not seek a continuance. The court, after reviewing affidavits explaining the county's search for the requested records and its retention practices, granted a summary judgment in favor of the county. The BIAW appealed; the superior court's judgment was affirmed.
Morgan v. City of Federal Way, 166 Wn.2d 747 (08/20/2009) A municipal judge was alleged to have created a hostile work environment. The city attorney initiated an investigation and notified the judge, seeking cooperation. Although the judge sought to stop the investigation, it was completed and a report was prepared. A local newspaper requested a copy of the investigative report. The judge sought a court order prohibiting the release of the report. Although the court initially prohibited the release, it later lifted the ban and the judge appealed. The Court concluded that the report was a "public record" (prepared, owned, used, and retained by the city). It was not exempt as work product, as when it was prepared, there was no anticipation of litigation. There was no attorney-client privilege because the attorney who prepared the report did not have an attorney-client relationship with the judge. And there was no personal information exemption (privacy) since the items in the report were not "highly offensive" and the judge failed to demonstrate how disclosure would not be in the public interest.
Koenig v. Pierce County, 151 Wn. App. 221, (07/13/2009) Following his arrest for a matter that was never prosecuted, the defendant Koenig sought from the county sheriff and county prosecutor all of the materials relating to the decision to not prosecute. While some materials were provided by both county departments, the prosecutor's office withheld some records as being work product. Koenig sued. Following a decision favorable to the county, Koenig appealed, and the court upheld the superior court's decision. The court upheld the county's use of the plurality decision in Limstrom v. Ladenburg, 136 Wn.2d 595, 604, 963 P.2d 869 (1998), relating to the withholding of work product and the application of CR 26. The court also found that there was no responsibility for the county to coordinate the responses from the prosecutor and the sheriff. Also the court found that the county had adequately described the records it had withheld.
Beak, Cummings. Rasmussen and Wingard v. City of Seattle, ___ Wn. App. ___ (06/22/2009) Plaintiffs requested "documentation supporting [the city's] asserted inability to implement our suggestions or any of the alternatives to their proposal." When the orally requested documentation was not provided, plaintiffs filed suit under the public records act. The court concluded that the plaintiffs had asked for documentation but were not sufficiently precise to constitute a request for an identified record. The problem was with the ambiguity of the request, not the form of the request.
Rental Housing Association v. City of Des Moines, 165 Wn.2d. 525 (2009) When a requesting party is dissatisfied with an agency's response to a records request, it may bring an action under the PRA but must do so "within one year of the agency's claim of exemption or the last production of a record on a partial or installment basis." RCW 42.56.550(6). When does that one-year period begin? Rejecting the argument that that a "claim of exemption" starts the clock, the court finds that the period begins when a "privilege log," is issued. To satisfy the privilege log requirement, it appears that a response denying a record request must (1) adequately describe individually the withheld records by stating the type of record withheld, date, number of pages, and author/recipient or (2) explain which individual exemption applied to which individual record rather than generally asserting the controversy and deliberative process exemptions as to all withheld documents.
Yousoufian v. Office of Ron Sims, 165 Wn.2d. 439 (2009) This decision provides the latest chapter in a public records case that has spanned over 11 years. This particular decision involves the calculation of the penalty to assess when a court determines that a records request response has been improperly delayed or denied. The trial court, after reviewing the record, concluded that the penalty should be $15 per day (set at the lower end of the statutory scale of $5 to $100 per day). A majority of the court, in a divided decision with five opinions, concluded that the trial court had abused its discretion in setting the penalty at $15 (one of the opinions suggested the penalty would be more appropriately set near $100). In sending the case back to the trial court, the majority provided a list of factors to consider in deciding the amount of penalty. Mitigating factors are: the lack of clarity of the request; an agency's prompt response or legitimate follow-up inquiry for clarification; good faith, honest, timely, and strict compliance with all the procedural requirements and exceptions; proper training and supervision of personnel; reasonableness of any explanation for noncompliance; helpfulness of the agency to the requestor and the existence of systems to track and retrieve public records. Aggravating factors that increase a penalty are a delayed response, especially in circumstances making time of the essence; lack of strict compliance with all th procedural requirements and exceptions; lack of proper training and supervision of personnel and response; unreasonableness of any explanation for noncompliance negligent, reckless, wanton, bad faith, or intentional noncompliance with the Public Records Act; dishonesty; potential for public harm, including economic loss or loss of governmental accountability11; (8) personal economic loss; and a penalty amount necessary to deter future misconduct considering the size of the agency and the facts of the case.
2008
Parmelee v. Clark,148 Wn. App. 748 (2008) Prison inmate made public records request to Department of Corrections, but not to person designated to accept requests. Because the two record requests were not submitted to the designated public disclosure coordinator, the agency may not be penalized for failing to respond to them in a timely fashion.
Bellevue John Does 1-11 v. Bellevue Sch. Dist. No. 405, 164 Wn.2d 199, (2008) The court, on a divided vote held that the identities of public school teachers who are subjects of unsubstantiated allegations of sexual misconduct are exempt from disclosure under public disclosure act. Also, letters of direction must be released to the public, but where a letter simply seeks to guide a teacher's future conduct, does not identify an incident of substantiated misconduct, and the teacher is not subject to any form of restriction or discipline, the name of the teacher and other identifying information must be redacted.
West v. Port of Olympia, unpublished opinion (2008) The port was requested to furnish a copy of a lease it had entered into with Weyerhaeuser. The request was denied for several reasons, including the "deliberative process" exemption. However, the lease had been approved, so that exemption no longer applied. The records could not be denied just because the port would enter into other leases and the lease in question could affect those subsequent negotiations. Since the lease had been approved, the exemption no longer applied.
O'Neill v. City of Shoreline, 145 Wn. App. 913 (2008) A councilmember/deputy mayor referenced an e-mail she had received during a council meeting. O’Neill requested a copy of the e-mail. However, the electronic record of the e-mail was altered through the removal of the heading (To/From). O’Neill sued to obtain the e-mail. The court concluded that the record was a public record, even though it had been received by the councilmember on a private computer. Although O’Neill had been furnished a paper copy of the e-mail, she had requested the metadata. The court found that the metadata fell within the definition of a public record.
West v. Thurston County, 144 Wn. App. 573 (2008) West sought copies of outside legal counsel billings for legal work performed for the county in the defense of a lawsuit. The county initially denied the request but, after a lawsuit was filed to force disclosure, provided redacted copies relating to the first $250,000 of billings (the extent of the county's deductible). The county argued that it did not have the rest of the billings and that the billings it did have were exempt as records relevant to a controversy (RCW 42.56.290). The court of appeals reversed the trial court, referencing 2007 legislation which clarified the availability of billing information (RCW 42.56.904): billings should be made available except as to work product which would include factual information which is collected or gathered by an attorney, as well as the attorney's legal research, theories, opinions, and conclusions. The court applied the legislation retroactively and found that the county could not avoid liability for the failure to provide copies simply by waiting to furnish the records until after a lawsuit was filed.
Clarke v. Tri-Cities Animal Care & Control Shelter, 144 Wn. App. 185 (2008) Three cities by interlocal agreement formed an animal control agency. That agency then contracted with a private business for the furnishing of animal control services. A citizen, citing the public records act, sought euthanasia records from the private business and from one of the cities. The business denied the request, indicating that it was not a public agency; the city denied the request, indicating that it did not possess the records sought. A lawsuit followed, and the trial court agreed with the business/city. On appeal, the court reversed. Applying and balancing factors from a four-part test ((1) whether the entity performs a governmental function; (2) the level of government funding; (3) the extent of government involvement or regulation; and (4) whether the entity was created by the government), the court reversed. Some of the employees of the business took oaths as animal control officers, and they performed police poser duties, such as euthanizing animals. The funding was primarily governmental, and the business had to follow some procedures set out by the interlocal member agencies. While the business was not established by government, balancing the four criteria led the court to conclude that the business/agency was covered by the public records act.
2007
Soter v. Cowles Publishing, 162 Wn.2d 716 (2007) Following the death of a student, the school district contacted its attorney, believing that litigation might ensue. The attorney hired an investigator who interviewed witnesses in anticipation of a lawsuit. A claim against the school district was ultimately compromised. Cowles Publishing made a records request for various materials associated with the case, most of which had been prepared by the school district's attorney or by the investigator acting on the attorney's behalf. The school district sought guidance from superior court to determine whether the records had to be furnished to the paper. A divided Court concluded that the requested records were relevant to a controversy to which the school district was a party and the records would not have been available under the civil rules of pretrial discovery because they were protected by either the work product doctrine or they reflected attorney-client privileged communications. Also, the plain language of RCW 42.56.540 allows agencies to seek a judicial determination as to whether a requested public record must be disclosed. However, if an agency has improperly denied a requester access to a public record, per diem penalties apply for everyday that access was denied.
Zink v. City of Mesa, 140 Wn. App. 328 (2007) [Public disclosure]. The Zinks made numerous and lengthy public records requests of the city. When the records were slow in coming, due to the volume of the requests and the limited size of the city staff, the Zinks sued. The trial court was sympathetic to the city, finding that, in view of the nature of the requests, the city had "substantially complied," that compliance to the requests amounted to a "practical impossibility," and that the requests amounted to unlawful harassment. On appeal, the Court of Appeals disagreed, finding that strict---not substantial---compliance was required. The city had limited the Zinks to one hour per day to review records; the Court held that that limit was not adequate. The Court further found that the city had disparately treated the Zinks, as it had no rules in place to allow its delays and limits on access; it does not matter that the city would have treated others similarly. The Court also found that the city's inclusion of staff time in making diskettes and tapes of records was permissible.
Yousoufian v. The Office Of Ron Sims, 137 Wn. App. 69 (2007) [Public records/calculation of penalty] If a public agency fails to provide a nonexempt record for review or copying, it can face a penalty of between $5 and $100 for each day the record is withheld. How does the court determine where the penalty should be set in the range? The court here offered the following advice: "The minimum statutory penalty should be reserved for such "instances in which the agency has acted in good faith but, through an understandable misinterpretation of the PDA or failure to locate records, has failed to respond adequately." Then, working up from the minimum amount on the penalty scale, instances where the agency acted with ordinary negligence would occupy the lower part of the penalty range. Instances where the agency's actions or inactions constituted gross negligence would call for a higher penalty than ordinary negligence, and instances where the agency acted wantonly would call for an even higher penalty. Finally, instances where the agency acted willfully and in bad faith would occupy the top end of the scale. Examples of bad faith would include instances where the agency refused to disclose information it knew it had a duty to disclose in an intentional effort to conceal government wrongdoing and/or to harm members of public. Such examples fly in the face of the PDA and thus deserve the harshest penalties."
Spokane & Eastern Lawyer v.Tompkins, 136 Wn. App. 616 (2007) [Courts not "agencies" covered by the public records act] A nonprofit corporation sought copies of correspondence from the Spokane Superior Court to the state and local bar associations. The request was denied and the nonprofit sued under the Public Disclosure Act. On review and citing earlier authority, the court denied the request, finding that the court was not an "agency" under the Public Disclosure Act and thus was not required to provide the requested letters.
2005/2006
Research & Defense Fund v. Community Development Association, 133 Wn. App. 602 (2006). The court reviewed the definition of an "agency" subject to the Public Records Act, concluding in this case that the 501(c)(3) organization possessed no material governmental attributes or characteristics, even though the entity leased space in a public building in a public park, and received substantial funding from the city. The court concluded that the entity was acting as an independent contractor and was not under the control of the city, and thus not covered by the PRA.
Bellevue John Does 1-11 vs. Bellevue School District No. 405, 129 Wn. App. 832, (2005). A newspaper sought school district investigative records concerning teachers, including the names of the teachers, alleged to have committed inappropriate conduct of a sexual nature, regardless whether, after investigation, that conduct was substantiated or not. Following notification, 37 teachers, for whom district investigations proved the alleged conduct unsubstantiated, sought protective orders, seeking to prohibit disclosure of the records and their names as an invasion of privacy. The court concluded that the name of a teacher who has been the target of an unsubstantiated allegation of sexual misconduct one that is not patently false is subject to public disclosure. When an allegation against a teacher is plainly false, as shown by an adequate investigation, that teacher's name is not a matter of legitimate public concern. Investigative files with identifying information redacted will always be subject to disclosure. Although the newspaper prevailed in the release of some records, attorney fees were not awarded, as the paper prevailed against the action of the teachers, who had obtained protective orders, not the district.
Spokane Research & Defense v. City of Spokane, 155 Wn. 2d 89 (2005). [Public disclosure of records] Prejudgment disclosure of records does not moot the later review and award of penalties, if records had been improperly withheld at the outset. The merits of a claim for fees and penalties are based on the circumstances that existed at the time of the records request, which is not changed by subsequent disclosure of documents. It is not necessary that the person who made the initial records request be the one who caused the ultimate disclosure of the records in order to be the prevailing party for purposes of collecting a penalty for the improper denial of the records. A show cause order is optional, not mandatory, for entitlement to fees and penalties. Summary judgment may be used for the pursuit of a public records request/claim.
White v. Township of Winthrop, 128 Wn. App. 588 (2005). [Disclosure of health information/violation of right to privacy] Mayor disclosed health information to newspaper. Court rejected argument that disclosure represented disability discrimination under RCW 49.60.180(4) (there was no "colorable action" under the act). However, the disclosure may have violated the plaintiff's common law right to privacy, if the disclosure was of a kind that would be highly offensive to a reasonable person, and is not of legitimate concern to the public. A jury should decide whether disclosure violated plaintiff's right to privacy.
Sappenfield v. Department of Corrections, 127 Wn. App. 83 (2005). [Record requests by inmates] A Department of Corrections rule reserves the right to withhold agency records from inmates, except for the inmate's own file and health records. Corrections has a published procedure for providing additional records to inmates: records requested by inmates are copied and mailed to the inmate, subject to a copying charge of 20 cents per page plus postage, payable in advance. An inmate challenged the department's policy, arguing that the other records should be brought to him without charge, if he only wished to review the records. The court disagreed. While agencies must honor requests received by mail for copies of identifiable public records (RCW 42.17.290), the statute does not categorically preclude denying requests for direct inspection when necessary to preserve the records and its own essential functions. Correction's policy is reasonable. Prison inmates have access without charge to their own personal records. Access to additional public records, however, can be obtained by means of copies mailed upon payment of a reasonable fee.
Sperr v. City of Spokane, 123 Wn. App 132 (2004). [Inspection of public records] Plaintiff sought to review criminal records that did not exist, and asked to personally search police records. Court held that person has no right to inspect or copy records that do not exist and city has no duty to create or produce a record that is nonexistent. Public disclosure act does not authorize indiscriminate sifting through an agency's files by citizens searching for records that have been demonstrated not to exist.
2004
Yousoufian v. Office of Ron Sims, 152 Wn. 2d. 421 (2004). Court of Appeals decision (114 Wn. App. 836 ) affirmed in part, reversed in part. Interpreting RCW 42.17.340(4), the court held that under the PDA penalties need not be assessed per record, and that trial courts must assess a per day penalty for each day a record is wrongly withheld. The court also held that the standard of review when the appellate courts look at PDA penalties assessed by the trail court is not de novo.
Koenig v. City of Des Moines, 123 Wn. App. 285 (2004). The case deals with a father's request for all of the criminal case records dealing with a sexual assault on his minor daughter. The court reviewed the application of RCW 42.17.31901 (protecting the identity of child victims of sexual assault); 42.17.310(1)(d)&(e) (criminal investigative records and records disclosing the identity of crime victims); and 42.17.255 (discussing what is of "legitimate public concern"). The court ruled that the "highly offensive information" could be redacted from the records.
Hangartner v. City of Seattle, 151 Wn.2d 439 (2004). The court issued three primary rulings: (1) a government agency need not comply with an overbroad request; (2) a "litigation-charged atmosphere" does not necessarily constitute a "controversy" where the public agency fails to establish that there was any threat or reasonable anticipation of litigation; and (3) the attorney-client privilege is an "other statute" (under RCW 42.17.260(1)) that prohibits disclosing certain records through the PDA.
American Civil Liberties Union v. City of Seattle, 121 Wn. App. 544 (2004). This case dealt with an ACLU request for labor negotiation related documents. Construing RCW 42.17.260(1), the court ruled that an Open Public Meetings Act provision [RCW 42.30.140(4)(a)] allowing executive session meetings for labor negotiation sessions or labor negotiation strategy discussion does not translate into a public records exemption for records pertaining to labor negotiations. Concerning the RCW 42.17.310(1)(i) exemption dealing with preliminary drafts and the deliberative process, the court held that the term "intra-agency" does not subsume but is in addition to other forms of communication the exemption lists. The court reviewed whether certain collective bargaining records should be disclosed, and held that the city had established that disclosure of the records in question would be injurious to the deliberative or consultative function and inhibit the negotiation process.
2000-2003
Beuhler v. Small, 115 Wn.App. 914 (2003). After pointing out that the public records act does not apply to court or judicial records, the court held that a trial judge's personal, work-related files containing a compilation of criminal sentences imposed by the judge in past cases and used by the judge to make sentencing decisions in current cases do not constitute judicial records subject to the common law right of public access.
Armen Yousoufian v. Office of Ron Sims, Court of Appeals (01/06/2003). The court reviews in detail the facts behind a delayed and negligent response to a request for public records disclosure. The court found fault with the county's failure to respond in a timely manner and to properly coordinate disclosure responses by different departments. The court analyzed RCW 42.17.340(4) dealing with attorney fees and penalties, finding that certain deductions from requested attorney fees were proper, but remanding the case to the trial court for imposition of penalties that exceeded the minimum statutory amount. When dealing with attorney fee or penalty issues, review this decision carefully.
King County v. Sheehan, 114 Wn. App. 325 (2002). The state court of appeals ruled that a list of the full names - not merely the last names - of police officers is not exempt from public disclosure and must be disclosed upon request. The court also concluded "that a penalty of at least $5 per day is now mandatory where an agency erroneously withholds a public record, whether or not the agency acted in good faith reliance upon a statutory exemption that is not in fact applicable."
Limstrom v. Ladenburg, 110 Wn. App.133 (2002). This is part of the ongoing saga of disclosure issues raised by Owen Limstrom in Pierce County. In this decision the Court of Appeals deals with disclosure of fact-gathering materials from criminal investigation files. The court ruled that disclosure of criminal records to a defendant's criminal defense attorney pursuant to CrR 4.7 does not waive the work product exemption for those records as to other attorneys and parties outside a particular case.
O'Connor v. DSHS, 143 Wn.2d 895 (2001). Public records that are relevant to a matter in litigation are not exempt from disclosure under RCW 42.17.310(1)(j) if they are discoverable under CR 26.
Tiberino v. Spokane County, Office of the Prosecuting Attorney, 103 Wn. App. 680 (2000). This fascinating case held that in certain situations even city employee e-mails of a personal nature (not dealing with government business in any way) are public records, though exempt from disclosure if there is no legitimate interest of the public in the contents of the e-mails. The county's e-mail policies and the county's procedure for handling this disclosure request are instructive.
Ockerman v. King County, 102 Wn. App. 212 (2000). The two primary holdings of the case are clearly stated by the court. "We hold that RCW 42.17.320 does not require an agency to provide a written explanation of its reasonable estimate of time when it does not provide the records within five days of the request." (at. p. 214) "There is simply nothing in the statute that requires public records to be provided peicemeal." (at p. 219).
Smith v. Okanogan County, 100 Wn. App. 7 (2000). This case squarely holds that the state public records disclosure law does not require that an agency create a document when responding to a disclosure request. The court followed the interpretation of the federal Freedom of Information Act provided by a 1975 U.S. Supreme Court decision.
Spokane Research & Defense Fund v. City of Spokane, 99 Wn. App. 452 (2000). The Court ruled that the performance evaluation of the Spokane City Manager must be disclosed. The Court discussed RCW 42.17.310(1)(b) and employee priavcy, but concluded that there is a legitimate public interest in having access to that information. This decision does NOT overturn the basic rule set down in Dawson v. Daly that performance evaluations that do not discuss specific instances of misconduct are generally exempt from disclosure.
1999
Limstrom v. Ladenburg/Pierce County, 98 Wn. App. 612 (1999). The court discussed an agency's ability to provide an estimate of the time needed to comply with a public records disclosure request (RCW 42.17.320). The court found that the plaintiff's challenge to the estimate of time needed to comply was groundless. There was no evidence that the plaintiff needed to file suit pursuant to RCW 42.17.340(2) in order to compel disclosure (the county had actually ended up providing the documents in half the time that had been originally estimated). This is a good decision, supporting an agency's ability to make a reasonable estimate of the time needed to comply with a disclosure request.
Cowles Publishing Co. v. Spokane, 139 Wn.2d 472 (1999). In this clarification of the Newman v. King County decision regarding disclosure of "open" police files, the final paragraph of the case provides an excellent summary of the holding: "The "investigative records" exception to the PDA does not provide categorical exemption from disclosure to police investigative records in cases where the suspect is arrested and the case referred to the prosecutor. In such cases, police incident reports are presumptively disclosable upon request, unless it can be shown that nondisclosure in a given case is essential to effective law enforcement in that particular case. However, jailhouse and arrest booking photos are exempt from disclosure under RCW 70.48.100(2)."
State v. Jones, 96 Wn. App. 369 (1999). The court reversed a trial court decision which had held that internal investigation files of a police department review board hearing concerning a police shootout were not discloseable to a defendant charged with assault stemming from the shootout. The court reviewed RCW 42.17.310(1)(d) and cases interpreting that statutory exemption, then sent the matter back to the trial court because the record did not show that the trial court had "heard any testimony or made any findings on the issue of whether nondisclosure of the shooting review board material is essential to effective law enforcement." The court also pointed out that this discovery request was not a typical request for disclosure to the public at large. In this discovery context the court has the option through CR 26(c) to issue a protective order that would limit how the disclosed materials could be used.
Concerned Ratepayers Assoc. v. PUD No. 1, 138 Wn.2d 950 (1999). The state supreme court applied the definition of "public record" found at RCW 42.17.020(36), particularly the term "used" in that definition, to a document containing technical specifications for a generator proposed to be installed at a power plant. Even though the document was never in the possession of the PUD, it had been referred to and seen by those planning the construction of the plant and is thus potentially a "public record." The case was remanded to the trial court for further proceedings.
Ignacio Guillen v. Pierce County, 96 Wn. App. 862 (1999). In this case the court determined that the entire accident history of a county intersection was not exempt from discovery by virtue of 23 U.S.C. §409, which provides that reports, surveys, schedules, lists, or data compiled or collected for the purpose of identifying, evaluating, or planning the safety enhancement of potential accident sites, hazardous roadway conditions, or railway-highway crossings in order to utilize federal funds, shall not be subject to discovery or admitted into evidence in a state court proceeding or in an action for damages.
ACLU v. Blaine School Dist. No. 503, 95 Wn. App. 106 (1999). The court held that when a public agency makes an unreasonable interpretation of the public disclosure act and refuses in bad faith to provide documents as required, a court abuses its discretion when it awards merely the minimum statutory penalties to the prevailing party. Any public agency evaluating potential penalties under RCW 42.17.340 (4) needs to review this case carefully.
1996-1998
Limstrom v. Ladenburg, 136 Wn.2d 595 (1998). In this public records case the state supreme court was asked to determine the scope of the right afforded a citizen under the public records act to inspect criminal litigation files created and held by a prosecuting attorney. The court held that a citizen has the right to inspect documents, or portions of documents, in a public attorney's criminal litigation file, unless the documents requested would not be available to a party under the discovery rules set forth in the civil rules for superior court, or the information is otherwise protected from disclosure under the state Criminal Records Privacy Act or other statutory provision.
Tacoma Public Library v. Woessner, 90 Wn. App. 205 (1998). In this public disclosure case, a party requested copies of personnel reports for employees of the Tacoma Public Library. The library provided redacted copies from which the names and identification numbers of employees had been deleted. The court held that the names of employees were not protected under RCW 42.17.310(1)(b), but that disclosure of employees' identification numbers was within the scope of the personal information exemption because it would lead to access to other exempt information such as home addresses, phone numbers, and social security numbers and would serve no public purpose.
Newman v. King County, 133 Wn.2d 565 (1997). In this 5-4 decision, the State Supreme Court concluded that under RCW 42.17.310(1)(d), the entire contents of an active and open criminal investigation file are categorically exempt from public disclosure regardless of the nature of the contents of the file. But see Cowles Publishing Co. v. Spokane (10/1999) for an important clarification of this decision.
ACLU v. Blaine School District No. 503, 86 Wn. App. 688 (1997). This decision interprets RCW 42.17.270, the public records disclosure provision which states, in part, that "Agencies shall honor requests received by mail for identifiable public records unless exempted by provisions of this chapter." The court concluded that the statute requires public entities to mail responses to public records requests, as long as the records are identifiable and not exempt. The Blaine School District will be paying fines and attorney fees to the ACLU over this attempt to take a narrow reading of the public records disclosure statutes.
Amren v. City of Kalama, 131 Wn.2d 25 (1997). This case deals with a public disclosure request for a report addressing complaints made about the city's chief of police. The court held that RCW 42.17.295 (which exempts from disclosure certain documents related to allegations of employee misconduct) does not apply to local governments, only to state agencies. The court decision also deals with damage awards under RCW 42.17.340(4) in a way which should make cities pause to carefully review all denials of disclosure.
Lindberg v. Kitsap County, 82 Wn. App. 566 (1996). We now finally have a case which discusses the right of the public to inspect and copy site, drainage and building plans submitted by a project applicant to a local governmental body (in this case, Kitsap County). The court reviews the "fair use" exception and federal copyright protection, stating: "To determine whether the fair use doctrine applies, a court evaluates the nature of the copyrighted work, the purpose and character of the use, the amount and substantiality of the work used, and the use's effect upon the potential market for the work. It "is an equitable rule of reason...and each case raising the question must be decided on its own facts." Key Maps, Inc. V.J.J. Pruitt, 470 F. Supp. 33, 37 (S.D. Tex. 1978)." Ruling in favor of the individuals who requested to copy the drainage and site plans, the court also remanded the case to the trial court for review of the damages and attorney fees awarded to the successful plaintiffs, implying that because access was denied to a number of specific records, the penalties should not be combined.
Personal Restraint of Maxwell, 81 Wn. App. 705 (1996). This case deals with RCW 42.17.314, the limitations and procedure for police to access electrice utility records.
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