• Whether to disclose accusations of employee misconduct
• Whether to disclose attorney bills
• Whether prisons can screen out public records requested by inmates
• When to retain and disclose metadata
• Court hearing procedures for PRA claims
• When the deliberative process exemption stops applying to negotiation records

Cases Reviewed:

Bellevue John Does v. Bellevue School Dist. No. 405, -- Wn. 2d -- (July 31, 2008)
West v. Thurston County, -- Wn. App. --, 183 P.3d 346 (2008)
Livingston v. Ceneno, -- Wn.2d --, 186 P.3d 1055 (2008)
O’Neill v. City of Shoreline, -- Wn. App. --, 187 P.3d 822 (2008)
West v. Port of Olympia, -- Wn. App. --, P.3d -- (July 21, 2008)

Employee Privacy: Bellevue John Does v. Bellevue School Dist. No. 405, -- Wn. 2d --, P.3d -- (Washington Supreme Ct., July 31, 2008)

In Bellevue John Does, the Washington Supreme Court may have narrowed its prior holding that employee evaluations are exempt from disclosure unless they involve substantiated employee misconduct or result in disciplinary measures. The Supreme Court also held for the first time that a school district may and must redact the identity of teachers from any documents regarding unsubstantiated accusations of sexual misconduct.

The requester in Bellevue John Does sought school district records related to accusations of sexual misconduct between teachers and students. The Court of Appeals held that these documents could be withheld or redacted only if the accusations were proven “patently false” – but if investigation showed only that the accusation was “unsubstantiated,” the records had to be disclosed. The Supreme Court reversed, holding that before the district disclosed documents related to unsubstantiated sexual accusations, it could and should redact the teachers’ identities – otherwise it would violate the teachers’ rights to privacy. Bellevue John Does also held that a court should not ask whether the agency’s investigation was adequate. The public can get information about the agency’s investigation, but the employee’s privacy should not depend on the inherent quality of agency’s investigation.

This opinion extends a prior Supreme Court holding on employee privacy and the PRA, Dawson v. Daly, 120 Wn.2d 782, 845 P.2d 995 (1993). But it may also signal that Dawson is narrower than it looks. In Dawson, the Supreme Court held that employee evaluations should not be disclosed when they do not involve discipline or substantiated misconduct. Here, the Court extended that protection to other documents regarding accusations, at least as to sexual misconduct. But unlike in Dawson, the Court ordered the agency to redact and disclose the documents, not to withhold them in total.

The Supreme Court did not say whether documents that reflect less inflammatory accusations should be treated in the same way as documents reflecting accusations of sexual misconduct. Thus, agencies should take care when determining whether to redact requested documents that that show unsubstantiated accusations of lesser misconduct.

An agency should not rely on the label it gives to a document. Whether a document is called an evaluation or a disciplinary record, the employee’s identity is subject to public disclosure if the document does more than provide “direction” and imposes discipline, restricts the employee’s future work, or finds that an accusation of misconduct was substantiated.

A dissenting opinion would have required the release of identity even as to patently false accusations. Legislation on this issue is likely to be proposed in the 2009 session. 

Attorney Bills Must Be Disclosed: West v. Thurston County, -- Wn. App. --, 183 P.3d 346 (Div. 2, 2008)

In West v. Thurston County, the court held that attorney-fee bills are subject to public disclosure. This was not an unexpected result because in 2007, the Legislature amended the PRA by adding a provision (RCW 42.56.904) to clarify that attorney’s bills must be disclosed upon request. Under this new statute, the public entity may only redact from the bills statements of the attorney’s work-product (that is, his mental impressions, theories, or opinions) or his advice. The Court of Appeals also held that this statute applies retroactively.

The Thurston County case began before this new legislation passed. The County incurred attorney’s fees in an employment dispute, and the trial court in that employment case ruled that the attorney’s bills were all work-product and protected from discovery under the rules of civil procedure, as they were not necessary to prove any issue in the case. Thurston County resident Arthur West, who was not a party to the employment case, then made a public records request for those same bills. Relying on the court’s discovery order, the County refused to disclose them.  West sued. By the time West’s case reached the Court of Appeals, the new PRA amendment had taken effect, and the Court of Appeals applied it retroactively. As a result, the County’s mistaken reliance on a court discovery order did not protect it from having to disclose the records and from paying attorney fees and penalties for withholding its attorney’s bills.

Does this mean every amendment to the PRA will apply retroactively? Certainly not – the Court followed the legislature’s express statement that this amendment was meant to “clarify” what the PRA already meant. But this case serves as a sharp reminder that a public agency cannot assume that last year’s PRA law, or last year’s court orders, will still apply this year.

Prison Regulations Can Limit Access to Public Records: Livingston v. Ceneno, -- Wn.2d --, 186 P.3d 1055 (Washington Supreme Court 2008)

In Livingston, the Washington Supreme Court held that a prison may limit inmates’ access to public records under the general policy of screening harmful materials. Livingston, an inmate, requested public records including a correction officer’s training records. The Department of Corrections (DoC) mailed Livingston the records, but they never reached him – because DoC employees at the prison seized them in the mailroom as “contraband,” a threat to prison safety pursuant to DoC regulations. The Supreme Court ruled in favor of the Department.

The DoC had offered to forward the mail to an address outside of the prison. The Supreme Court reasoned that the DoC had fulfilled its duties under the PRA by mailing the records, but the PRA did not also require the DoC to pass dangerous mail through to a prisoner. The Court noted that, for example, the PRA should not be construed to allow a prisoner convicted of child molestation to receive photographs of children from a state agency. As Livingston had not challenged DoC’s determination that the records were “contraband,” DoC could properly keep the requested public records away from him.

The crux of this case was that DOC was acting under its statutory authority in banning contraband, and prison officials have great discretion in keeping prisons safe. It is not clear how this holding will apply in other contexts. It does seem likely, however, that the case would have gone the other way if there had been any hint that the DoC withheld public records as such, instead of banning “contraband” no matter what the source. Municipalities with jails should be sure to review their screening policies in light of this decision to make sure that if they are keeping public records from prisoners, they are doing so without reference to the source of the documents, and pursuant to statutory authority.

“Metadata” Is Subject to Disclosure: O’Neill v. City of Shoreline, -- Wn. App. --, 187 P.3d 822 (Div. 1, 2008)

The O’Neill case made three key holdings:

1. Metadata is part of electronic public records and must be produced when requested.
2. State document retention guidelines do not always immunize an agency from having to produce the record in response to a public records request.
3. A court may resolve a PRA suit without allowing for live testimony or discovery.

This case involved a series of requests all aimed at obtaining one particular email that had been sent to an official’s personal email account. After receiving a hard copy of the email, the requester then specifically demanded an electronic version including metadata. Metadata is automatically generated information, embedded in an electronic document, that shows the document’s history, tracking and/or management. It can be viewed with standard software. Metadata can reveal who opened a document, which server it came from, and whether it was altered.

At the time this case arose, state retention guidelines allowed an agency to print out a copy of an electronic document and destroy the original, electronic version. The guidelines have since been amended to require the agency to retain the electronic version. Here, after the City had produced the paper copy of the email, and before the requester asked for the electronic version, the electronic version was deleted and could not be produced. The paper copy, of course, did not include the metadata.

The requester sued and sought an order requiring an in-camera review of the councilmember’s personal computer. The trial court, ruling on the papers and without a hearing, ruled the City had fully complied and dismissed the suit. The Court of Appeals reversed in part.

Issue 1: Metadata. The Court of Appeals ruled that metadata is part of an electronic record that must be disclosed if requested, unless exempt for some other reason. The Court also ruled that a request for “a copy” of the email is not a request for the electronic version with metadata. In making this ruling, the Court rejected the requester’s argument that the City should automatically produce metadata in response to every request.

Issue 2: Retention. The Court found that the City had complied with the state’s document retention guidelines when it printed out and deleted the electronic version of the requested email. Nevertheless, the Court went on to assert there was a conflict between the PRA and the retention schedule and, under the PRA, the retention guidelines “do not inform the question presented in this case.” It then held that the City still had to produce the electronic version of the email.

It is unclear what conflict the Court found, however, because the PRA itself recognizes agencies’ authority to delete records pursuant to state retention guidelines. The PRA puts only one qualification on this authority – that an agency cannot destroy a record scheduled for destruction that has been requested until the request is “resolved.” RCW 42.56.100. But the Court did not cite to this section or find that the request had not been resolved. As a result, the Court could possibly be understood to mean that agencies must produce records under the PRA even if the records were properly destroyed under the state’s retention schedule.

It seems unlike that this was the Court’s intent and the City has moved for reconsideration on this issue.

Issue 3: Hearing procedures. Finally, the Court rejected the requester’s argument that the Court was required to hold a hearing and allow discovery prior to ruling on the PRA claim. Instead, the Court held that the PRA allows a court to resolve a claim solely on the papers. This ruling should help keep the cost of PRA disputes in check.

Limits on the deliberative process exemption: West v. Port of Olympia, -- Wn. App. –, P.3d -- (Div. I, July 21, 2008)

In West v. Port of Olympia, the court ruled on the scope of the “deliberative process” exemption. The dispute involved email exchanges between the Port and Weyerhaeuser about Port property the corporation wanted to lease. These emails culminated in the Port and Weyerhaeuser executing a lease. The Court held that the deliberative process exemption only applied until a final decision was made. Once the lease was executed, none of the emails were protected under that exemption.

The exemption at issue (RCW 42.56.280) provides that “deliberative process” documents lose their protection only when “a specific record is ... publicly cited by an agency in connection with any agency action.” The statute does not seem to provide that all of the records -- whether cited or not – then lose their protection. Nevertheless, prior court opinions appear to have broadened that limiting language, and the Port of Olympia decision is consistent with those opinions. Agencies should be careful when relying on the limiting language in this statute.

Please contact Ramsey Ramerman (206.447.4674), chair of the Public Disclosure Team, or any member of Foster Pepper’s Municipal Group, if you have any questions.