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  • Posts by Andrea Bradford
    Associate

    Andrea also has experience in environmental litigation, and serves as a member of the WSAMA amicus committee as well as a board member of the Washington Council of School Attorneys. After graduating from the University of ...

In SEIU Local 925 v. University of Washington, the Washington Supreme Court unanimously reversed the state court of appeals, concluding that the “scope of employment” test from Nissen v. Pierce County applies only to records on personal devices, rather than agency devices.

The Washington State Attorney General issued an opinion concluding that a county’s real property assessment rolls, in an electronic form which could be sorted by property owner name, are "lists of individuals" which cannot be produced under the "commercial purpose prohibition" of the Public Records Act, RCW 42.56.0070(8).

The "commercial purpose prohibition" states that agencies "shall not" "give, sell or provide access to lists of individuals" when requested for a "commercial purpose." RCW 42.56.0070(8). In an earlier 1980 Attorney General Opinion, issued when assessment rolls were only available to requesters in hard copy, static form, the Attorney General opined that records identifying property owners in alphabetical order were "lists of individuals" prohibited from disclosure under the "commercial purpose prohibition," but that similar lists organized by parcel description were not: the AGO reasoned that those lists were still fundamentally lists of real property.

The legislature passed a flurry of Public Records Act amendments this past session, including a number of changes to exemptions, and changes to the JLARC reporting requirements. These bills take effect at the end of this month, on July 28, 2019.

  • Amendments to Exemptions
    • Alternative Public Works. SHB 1295 amends RCW 42.56.270(2) to exempt financial information supplied by or on behalf of a person, firm or corporation in submitting a bid or proposal for an alternative public works contracting procedures under chapter 39.10 RCW, which includes design-build contracting the general contractor/construction manager (“GCCM”) procedure, and job order contracting.
    • Child Victims of Sexual Assault. HB 1505 amends RCW 10.97.130 to provide broader protection.  The statute previously exempted information revealing the “identity” of child victim of sexual assault under eighteen.  As amended by the bill, the statute exempts information revealing “specific details that describe an alleged or proven child victim of sexual assault under age eighteen, or the identity or contact information of an alleged or proven child victim of sexual assault who is under age eighteen.”  The bill defines “contact information” to include phone numbers, email addresses, social media profiles, and usernames and passwords.  The bill expands the definition of identifying information to be an inclusive rather than exhaustive list, and to specifically include the name of a stepsibling.
    • Applications for Public Employment. HB 1537, the bill enacted based on the Sunshine Committee’s recommendations on PRA exemptions, amends the application for public employment exemption.  RCW 42.56.250(2).  As amended, the exemption will no longer apply to applications for elective offices.
    • Investigations of Discrimination and Harassment. EHB 2020 amends RCW 42.56.250(6) to expand protection for employment investigations.  The statute previously exempted for employment investigations “active and ongoing” records regarding possible unfair practices under Washington Law Against Discrimination, Chapter 49.60 RCW, or federal, state or local discrimination law.  EHB 2020 expands the protection to investigations regarding the breach of an employer’s internal policy prohibiting discrimination, and investigations regarding harassment.  In addition, under the revised statute, records are exempt while the investigation is “active and ongoing.” After the investigation is complete, the agency must inform the complainant, other accusers, and any witnesses of a request for the investigation’s records, and the records may be disclosed only if the names of the complainant, other accusers, and any witnesses are redacted.  These individuals’ names may only be released with their consent.
    • Information Regarding Gambling Disorders. SHB 1302 amends 42.56.230 to exempts information submitted in support of a self-exclusion program for people with a gambling problem or gambling disorder.  These programs allow individuals to exclude themselves from gambling establishments licensed by the Washington state gambling commission.
    • FDA information. SHB 1385 exempts information or records obtained pursuant to a food and drug administration contract or commissioning agreement.
    • Paid Family and Medical Leave Act. SHB 1399 exempts records maintained by the employment security department in connection with Paid Family and Medical Leave Act.
    • Explosives. HB 1673 amends RCW 42.56.460 to exempt all reports submitted under the Washington state explosives act, chapter 70.74 RCW.
    • Marijuana Businesses. ESSB 5318 amends RCW 42.56.270 to exempt “valuable formulae or financial or proprietary commercial information records received during a consultative visit or while providing consultative services to a licensed marijuana business.”
    • Caregiver Information. SSB 5955 amends RCW 42.56.230 to exempt personal information for substitute caregivers who are licensed or approved to provide overnight care of children by the department of children, youth, and families.
    • Bump-fire Stock Buy Back. SB 6025 amends RCW 42.56.230 to exempt names, addresses, or other personal information of individuals who participated in the bump-fire stock buy-back program under RCW 43.43.920.

In the most recent two of a string of cases involving branches of the Service Employees International Union and nonprofit organization Freedom Foundation, each party emerged with one victory and one loss. First, in Freedom Foundation v. SEIU Healthcare Northwest Training Partnership, Division I of the Court of Appeals concluded that the Training Partnership was not the functional equivalent of a public entity under Washington’s Public Records Act (PRA), Chapter 42.56 RCW. The Training Partnership is a nonprofit organization formed by SEIU 775, which is the exclusive bargaining representative of individual providers of in-home care service providers, as well as three private in-home service provider employers. The partnership provides training that in-home service providers are required to obtain under state law.

The Washington Court of Appeals, Division One, concluded that emails of University of Washington professors relating to faculty union organizing were not “public records” under Washington’s Public Records Act, Chapter 42.56 RCW. Although the emails were sent to UW email addresses, the Court concluded that emails relating to faculty concerns and unionizing efforts were not created “within the scope of employment” and were therefore not “public records” under the Washington Supreme Court’s decision in Nissen v. Pierce County.

In Nissen, the court addressed text messages on an employee’s private cell phone, and determined that records on private cell phones were only “public records” if created within the scope of employment. The Court of Appeals’ new decision applies that test to records sent and received from a public employees’ official work email account, retained on a public agency’s server.

In the third appeal related to a 2003 public records request, the Washington Court of Appeals concluded that in setting a penalty for violations of the Public Records Act, Chapter 42.56 RCW (PRA), the trial court did not abuse its discretion in considering the small size of the City of Mesa and the burden the penalty imposed per capita on its taxpayers.

Courts have authority to enter penalties of up to 100 dollars per day for wrongful withholding of public records under the PRA. The Washington Supreme Court has adopted a sixteen-factor test to determine the size of the penalty. One of these factors is deterrence considering the size of the agency and the facts of the case.

In a five to four decision, the Washington Supreme Court concluded that emails exchanged between two separate public agencies – Kittitas County and the Washington State Department of Ecology  – were protected under the work product doctrine and therefore exempt from disclosure under the Washington Public Records Act, Chapter 42.56 RCW.

Kittitas County and the Department of Ecology both investigated a company, Chem-Safe, for violations of waste-handling requirements. During litigation regarding the Notice of Violation the County issued to Chem-Safe, emails were exchanged between the County and Ecology. The County later withheld these emails from production under the Public Records Act, claiming work product protection.

The Washington Court of Appeals, Division One, has held that death-scene images of Kurt Cobain are exempt from public disclosure under the Washington Public Records Act, ch. 42.56 RCW (“PRA”). Lee v. City of Seattle.

Richard Lee, a “local conspiracy theorist who believes that Mr. Cobain was murdered,” made a public records request to the City of Seattle for the investigative file regarding Cobain’s death. The City provided records but withheld death-scene photographs. Lee filed a lawsuit alleging that withholding these photographs violated the PRA. Cobain’s daughter and widow intervened in the lawsuit. The trial court concluded the records were properly withheld and granted the Cobains’ motion for a permanent injunction to prevent release of the photographs.

Article II, Section 9 of the Montana state constitution protects the right to examine documents of public agencies. In Nelson v. City of Billings, the Montana Supreme Court held the state constitution did not require disclosure of attorney-client communications or attorney work product.

Article II, Section 9 provides, “No person shall be deprived of the right to examine documents of all public bodies or agencies . . . except in cases in which the demand of individual privacy clearly exceeds the merits of public disclosure.” Kevin Nelson claimed that because the only express exemption to this constitutional provision was “individual privacy,” attorney-client and work product documents were not exempt from disclosure.

The Washington Court of Appeals, Division Two, held that a Puyallup City Council member’s Facebook posts were not “public records” under Washington’s Public Records Act, Chapter 42.56 RCW, because the council member did not prepare the records within the scope of her official capacity as a member of the City Council.

The litigation centered on plaintiff Arthur West’ public records request to the City asking for all records sent to or received by City Council Member Julie Door’s “Friends of Julie Door” Facebook site. The City conducted a search of its own records and located one email, which it disclosed. The City did not disclose any posts on the “Friends of Julie Door” site.

Local Open Government Blog covers the latest in open government across the Pacific Northwest, including the Public Records Act, the Open Public Meetings Act, public disclosure, campaign finance and the Freedom of Information Act.

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