Archive for the ‘Public Records Act’ category

West v. Washington State Department of Natural Resources

September 2, 2011

In West, Division II of the Court of Appeals held that the Department of Natural Resources (DNR) violated the Public Records Act by not responding to West’s public records requests within five business days.  After the DNR received the requests, the assistant public records officer acknowledged receipt of the request the same day.  However, the public records administrator wrote to West eleven days later, stating that the DNR was “in the research phase of the eight records requests” received and that many of the requests could be quite voluminous.  She also asked clarification questions about the request and stated that she required a response to these questions before she could provide a reasonable estimate of time for the DNR’s response. 

 When a public agency receives a public records request, it must within five business days (1) provide the record; (2) provide an internet address and link on the agency’s web site to the specific records requested; (3) acknowledge receipt of the request and provide a reasonable estimate of the time the agency will require to respond to the request; or (4) deny the public record request.  RCW 42.56.520.  In this case, although the DNR acknowledged receipt of the request within five business days, failure to include a reasonable estimate of the time to respond resulted in a violation of the PRA.  Despite the DNR’s arguments that the PRA does not provide for a stand-alone remedy for failure to strictly comply with the five-day requirement, the court remanded the case to the trial court to assess an attorney fee and penalty award for the violation.

 However, the court also held that the DNR did not violate the Public Records Act because it failed to disclose a document that was inadvertently lost prior to the time the request was made.

Gendler v. Batiste – Public Records Act and Traffic Accident Reports

November 30, 2010

In Gendler v. Batiste, the Court of Appeals held that the Washington State Patrol (WSP) was required to disclose historical bicycle accident records of accidents occurring on Seattle’s Montlake Bridge.  The requestor had suffered serious injuries when his bike tire became wedged in the bridge’s grating.  The requestor suspected that the bridge had been unsafe for cyclists since 1999 when the State replaced the bridge decking, and therefore, he sought records of other bicycle accidents from the WSP.  The WSP claimed that these records were exempt from public disclosure under federal law, 23 U.S.C. § 409, unless the requestor agreed not to use the information in litigation against the State. 

Under the Federal Highway Safety Act, states are required to identify and correct high-collision locations by collecting traffic records of accident locations, injury types, and environmental conditions.  Section 409 of the Act protects states from tort liability created by the increased self-reporting of hazardous collision data and provides that reports or data compiled or collected for the purpose of identifying, evaluating, or planning the safety enhancement of potential accident sites “shall not be subject to discovery or admitted into evidence in a Federal or State court proceeding or considered for other purposes in any action for damages arising from any occurrence at a location mentioned or addressed” in such reports or data.  The WSP argued that its police traffic collision reports fell under § 409 protection because it provided and WSDOT collected the data for the purposes of identifying and correcting high-collision locations. 

The court disagreed with the WSP, relying heavily upon Pierce County v. Guillen, 537 U.S. 129 (2003), a previous U.S. Supreme Court case reviewing the application of § 409 to Washington’s Public Records Act.  Guillen held that § 409 was inapplicable to information compiled or collected for purposes unrelated to identifying locations and priorities for improvements on the basis of crash experience pursuant to federal law.  The WSP is required to prepare accident reports on state highways under RCW 46.52.060, which the court considered an independent statutory obligation.  Because the WSP did not prepare or use the reports for Federal Highway Safety Act purposes, the protection offered by § 409 did not extend to the WSP by virtue of the fact that it designated WSDOT as its records custodian.  Therefore, the court concluded that while WSDOT was protected by § 409, the WSP was not because it prepared the accident reports for ordinary law enforcement purposes and not for purposes of complying with the Federal Highway Safety Act.

This case should have limited application to municipalities.  First, § 409 does not exempt accident reports from disclosure completely, but only provides that the reports or data cannot be admitted as evidence in a subsequent lawsuit for damages.  Section 409 is not a basis for withholding or redacting documents pursuant to a public records request; the WSP only tried to require the requestor to certify that he would not use the documents in a subsequent lawsuit prior to disclosure.  Second, there should be very limited circumstances in which a municipality is generating or compiling accident reports for Federal Highway Safety Act purposes.  If the reports or data are compiled or collected for unrelated purposes and are held by agencies that are not pursuing Federal Highway Safety Act purposes, § 409 protection will not apply at all.  Simply forwarding accident reports to WSDOT will not protect the documents in a subsequent proceeding.

The case is available here.

O’Neill v. City of Shoreline – Metadata

October 15, 2010

The Supreme Court recently affirmed that metadata is a public record.  However, a normal public records request for an e-mail does not include a request for metadata unless metadata is specifically mentioned and requested.  This case is a good reminder of the dangers of using personal computers for city or agency business, as the Court held the City of Shoreline violated the Public Records Act if (1) the City (or the Deputy Mayor) refused to search the Deputy Mayor’s hard drive for the missing metadata that was requested; (2) the City could not locate the missing metadata after a search; or (3) located the metadata, but the metadata was different than the metadata already disclosed pursuant to the requests.  In addition, this case is a reminder that public records, including associated metadata if requested, cannot be deleted when a records request is pending.  If you have any questions about public records management or retention, please contact your city attorney. 

The O’Neill majority opinion is available to view here.

Court of Appeals issues decision in Kitsap County Prosecuting Attorneys Guild v. Kitsap County

May 17, 2010

By Charles D. Zimmerman & Julie K. Norton

On May 11, 2010, the Division II Court of Appeals issued a decision in Kitsap County Prosecuting Attorneys Guild v. Kitsap County, No. 39196-1-II, confirming that an award of attorneys fees, costs, and penalties under the Public Records Act (“Act”) is mandatory if a court determines that the government agency wrongfully withholds or fails to disclose public records.

 In Kitsap County, the Kitsap Sun (the “Sun”) filed a public records request on July 21, 2008 with Kitsap County (the “County”) requesting a database of County employees containing the employees’ names, number of years of employment with the County, department assigned to within the County, job title, office phone number, annual pay rate, and town of residence.  On July 25, 2008, the County sent the Sun a “five day letter” acknowledging that it received the Sun’s request. The County stated that “[a]ll documents responsive to this request will be reviewed and prepared for release.  We hope to release these documents no later than  August 8, 2008.”  

On August 8, 2008, the County released all of the requested information except for the employees’ towns of residence.  At the time of release, the County has still not determined whether the employees’ towns of  residence were exempt from disclosure.  In a letter to the Sun, the County stated in part:

 Under the [PRA], residential addresses of public employees and volunteers are exempt from inspection and copying.  See RCW 42.56.250.  It is not clear to the County whether “town of residence” is included within the meaning of “residential  address.”

 The County is taking action to determine whether County employees object to the public release of their “town of residence”.  If employees consider the release of their town of residence to be a violation of the [PRA] or an invasion of privacy then the County may file a declaratory judgment action and ask the court to rule whether employees’ “town of residence” is exempt from public disclosure.

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Supreme Court Assesses Penalty of $371,340 for Public Records Act Violation

March 29, 2010

The Supreme Court issued its decision in Yousoufian v. Office of Ron Sims, assessing a penalty for violation of the Public Records Act at $45 per day for 8,252 days (differing lengths of time for various categories of records), for a total penalty of $371,340.  Attorneys fees will be added to this total.

In 1997 Mr. Yousoufian made two public records requests to the Office of the King County Executive for records related to studies on sports stadiums.  Over the course of several months, King County released many of the records requested, but not all.  In March of 2000, Mr. Yousoufian filed suit against the County.  King County located additional responsive records and provided those records to Mr. Yousoufian.  The trial court found that King County’s delay in releasing the records violated the Public Records Act (“PRA”) and awarded penalties to Yousoufian at the rate of $5 per day.  Yousoufian appealed the method of calculation and penalty to the Court of Appeals.  In 2004 the Court of Appeals held that the method of calculation was appropriate (per category of records vs. per record), but that a penalty of $5 per day was an abuse of judicial discretion.  On review, the Supreme Court agreed that the $5 penalty was unreasonable considering that the County acted with gross negligence and remanded to the trial court for imposition of penalties greater than the $5 per day minimum.  On remand, the trial court imposed a penalty of $15 per day.  Yousoufian again appealed, claiming the $15 per day penalty was not enough.  The Court of Appeals agreed.  The County then petitioned for review by the Supreme Court.

In a 5-to-4 decision, the Supreme Court affirmed the Court of Appeals, holding that the trial court’s penalty of $15 per day was an abuse of discretion.  In its analysis, the Court began by recognizing the PRA provides no specific indication on how a penalty is to be calculated, then turned to the few reported cases dealing with penalties.  Those cases provide that the existence or absence of bad faith and agency culpability are factors to consider in setting the penalty, along with foreseeable economic loss and the public importance of the issue to which the request relates.  In addition, the Court stated that deterrence is another factor to consider in determining the penalty.  The Court determined that the abuse of discretion standard was not enough, and given the few published cases to offer guidance to trial courts, followed past precedence of reviewing courts providing guidance to trial court judges in exercising their discretionary authority.  The Court set out mitigating factors that may serve to decrease the penalty, including: (1) lack of clarity of the request; (2) agency’s prompt response or legitimate follow-up inquiry for clarification; (3) agency’s good faith, honest, timely and strict compliance with PRA procedural requirements; (4) proper training and supervision; (5) reasonableness of explanation for noncompliance; (6) helpfulness of the agency; and (7) the existence of agency systems to track and retrieve public records.  The aggravating factors that may support increasing the penalty include: (1) delayed response by the agency, especially in circumstances when time is of the essence; (2) lack of strict compliance with procedural requirements (3) lack of proper training and supervision; (4) unreasonableness of any explanation for noncompliance; (5) negligent, reckless, wanton, bad faith or intentional noncompliance with the PRA; (6) dishonesty; (7) public importance of the issue to which the request is related (where importance was foreseeable to the agency); (8) personal economic loss (where foreseeable to the agency); and (9) deterrence considering the size of the agency and the facts of the case.

The Supreme Court’s guidance to judges in setting penalties is a helpful roadmap for agencies to consider as they process public records requests.  Training is essential to avoid violations in the first place, but it may also mitigate penalties in the event a violation is found.

Clarification Regarding Privilege/Exemption Logs Under Public Records Act

February 2, 2010

Our office continues to receive numerous inquiries from our public agency clients regarding their responsibility to complete a privilege/exemption log in response to a request for public records under the Public Records Act (“PRA”), located at RCW 42.56, et. seq.  A series of reported and unreported cases from Washington Courts over the last calendar year has underscored the importance of preparing a timely, complete, and accurate privilege/exemption log in response to any and all public records requests wherein records will be withheld due to exemption or privilege.

Prior to January 22, 2009, a public agency desiring to withhold records in response to a public records request due to exemption or privilege was required to provide the requestor with the claimed exemption, and a brief explanation of how the exemption applies to the record or portion withheld. RCW 42.56.210(3).  In Progressive Animal Welfare Soc’y v. Univ. of Wash., 125 Wn.2d 243 (1994) (“Paws II”), the Washington Supreme Court attempted to clarify the statutory requirement, providing as follows:

Silent withholding would allow an agency to retain a record or portion without providing the required link to a specific exemption, and without providing the required explanation of how the exemption applies to the specific record withheld. The Public Records Act does not allow silent withholding of entire documents or records, any more than it allows silent editing of documents or records. Failure to reveal that some records have been withheld in their entirety gives requesters the misleading impression that all documents relevant to the request have been disclosed. Moreover, without a specific identification of each individual record withheld in its entirety, the reviewing court’s ability to conduct the statutorily required de novo review is vitiated.

 Id. at 270.

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New Supreme Court Decision Regarding Public Records Act

October 16, 2009

The Washington State Supreme Court issued its decision today in City of Federal Way v. Koenig, __ Wn.2d __ (Oct. 15, 2009), holding that the Public Records Act (chapter 42.56 RCW) does not apply to the judiciary or judicial records.  The court did not find a compelling reason to overturn the case Nast v. Michels, 107 Wn.2d 300 (1986), where the court held the Act does not apply to court files because the judiciary is not included in the Act’s definition of “agency.”  The dissent (authored by Justice Stephens, joined by Chief Justice Alexander) took the position that Nast should be construed narrowly to apply to court case files only, and that the Act should be read broadly to include the judiciary as an “agency.”  Click here to view the case.