In the latest installment of a series of cases involving the nonprofit organization Freedom Foundation, the Department of Social and Health Services (“DSHS”) secured itself a win in the Washington Court of Appeals, Division II. Among other findings, the court upheld the trial court’s conclusion that DSHS did not violate the Public Records Act (“PRA”) when it first produced the requested records to the SEIU Training Partnership—a third party DSHS determined was likely to be “affected by the request.” Freedom Found. v. Wash. Dep’t of Soc. and Health Servs.
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.
In an unpublished decision, the Washington Court of Appeals held that an attorney need not appear as counsel of record in a Public Records Act (“PRA”) action for legal services to be compensable, as long as the services were reasonably incurred in litigating a matter on which the PRA plaintiff prevailed. The court also found that the trial court did not abuse its discretion in awarding the plaintiffs only a fraction of the requested penalties for withholding of records. Strand v. Spokane County.
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.
Over the course of representing her client, attorney Erica Krikorian sent two Public Records Act (“PRA”) requests to Monroe School District, the defendant in her client’s lawsuit alleging civil rights violations. Krikorian then negotiated a settlement with the district on the civil rights claim in which her client released any potential PRA claims. Krikorian, asserting that the PRA claims were hers, subsequently filed suit against the district for violations of the PRA. In Creer Legal v. Monroe School District, No. 76814-0-I (August 13, 2018), Division I of the Washington Court of Appeals affirmed dismissal of Krikorian’s lawsuit. The court held that Krikorian, as her client’s agent, did not own the PRA cause of action and could not assert the claim once it was released by her client in settlement.
Lyft Inc. and Rasier LLC (collectively, “Lyft”) filed suit under Washington’s Public Records Act, ch. 42.56 RCW (“PRA”), seeking to enjoin the City of Seattle from releasing quarterly zip code reports Lyft submits to the City pursuant to local ordinance. Lyft asserted that the reports are protected from public disclosure because they are trade secrets under the Uniform Trade Secrets Act, ch. 19.108 RCW (“UTSA”). The superior court entered a permanent injunction preventing release of the zip code reports, and the Washington Supreme Court accepted direct review of the court’s decision.
In a 5-4 decision, the Washington Supreme Court reversed the order granting injunctive relief. First, the Court determined that, while the evidence was mixed and the question was not beyond debate, substantial evidence supported the superior court’s findings that the zip code reports were trade secrets within the meaning of the UTSA.
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.
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.