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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.

The public records reporting system is now open — Are you ready?

In 2017, the state legislature adopted ESHB 1594, which made significant amendments to public records laws. One of those changes is a new reporting requirement in RCW 40.14.026(5). It requires each agency with actual staff and legal costs associated with fulfilling public records request of at $100,000 during the prior fiscal year to report to the Joint Legislative Audit and Review Committee (JLARC) on 18 different public records metrics.

JLARC has put together a public records reporting page with a lot of helpful information designed to help agencies comply with this new reporting requirement, including agency guidance, FAQs, and cost estimation worksheets. In addition, the JLARC public records reporting system is now open, and instructions for using the system have been provided.

The first quarter of 2018 has seen a number of open government rulings and developments in Washington state. From a flurry of court decisions, legislative action, and a veto by the governor, to decisions addressing exemptions for education and law enforcement records, the summary below recaps recent legal developments under Washington’s Public Records Act (PRA), ch. 42.56 RCW.

Under Washington state law, “the records of a person confined in jail shall be held in confidence” and made available only to criminal justice agencies as provided by law. RCW 70.48.100(2). In Zabala v. Okanogan County, the requester submitted five Public Records Act requests to the Okanogan County Sheriff’s Office and the Okanogan County Prosecuting Attorney’s Office. In combination, the requests sought any and all records, created in the last three years, related to monitored or recorded phone calls of inmates in the Chelan, Douglas, or Okanogan County jails, including voicemail, e-mail, audio, notes, reports, transcripts, arguments, pleadings, motions, briefs, memos, and letters. The agencies denied the requests as not being for identifiable records and because any responsive records were exempt from public disclosure.

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.

The Washington State Attorney General filed an amicus brief on Wednesday, January 10, 2018, arguing that the Public Records Act, Chapter 42.56 RCW, applies to the Washington State Legislature and individual legislators. The brief was filed in a lawsuit pending in Thurston County Superior Court.

The plaintiffs in the matter, a group of news organizations including the Associated Press and The Seattle Times, submitted public records requests to individual legislators. In its own motion, the legislature takes the position that several amendments to the PRA, including amendments in 2007, removed legislators from the PRA. The 2007 amendments essentially removed the definition of “state legislative office” from the PRA by removing a cross reference to the campaign finance statutes, formerly Chapter 42.17 RCW.

On November 17, 2017, the Joint Legislative Audit and Review Committee (JLARC) issued guidance on the new reporting requirements enacted by the legislature in 2017. Engrossed Substitute House Bill 1594, which became effective July 23, 2017, requires all agencies to maintain a log of all public records requests submitted to the agency, and imposes more detailed reporting requirements for agencies that spend at least $100,000 on staff and legal costs associated with fulfilling public records requests in the past fiscal year. See RCW 40.14.026(4), (5). These detailed reporting requirements include the average time to acknowledge and close out records requests; the number of requests abandoned by requesters; the type of requester (i.e., law firm, media, incarcerated persons, etc.), to the extent that information is known; and the estimated agency staff time spent on each request. RCW 40.14.026(5).

The JLARC guidance document provides agencies direction on the detailed reporting requirements, including (1) how to calculate the $100,000 threshold and (2) for agencies exceeding the $100,000 threshold, what data they should be collecting for submission by July 1, 2018.

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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