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Washington State Attorney Generals Office March 2013 Timothy D. Ford Open Government Ombudsman Assistant Attorney General for Government Accountability.

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Presentation on theme: "Washington State Attorney Generals Office March 2013 Timothy D. Ford Open Government Ombudsman Assistant Attorney General for Government Accountability."— Presentation transcript:

1 Washington State Attorney Generals Office March 2013 Timothy D. Ford Open Government Ombudsman Assistant Attorney General for Government Accountability

2 Provides Assistance to the Public and Agencies Training on Compliance with the Public Records Act and Open Public Meetings Act Provides Informal Advice Letters interpreting those Laws Advocates for Greater Transparency and Governmental Accountability Promotes Legislative Reform & serves on the Sunshine Committee Contact info: or (360) 2

3 Learn and Discuss the following: 1. History & Purpose of the Public Records Act 2. General Agency Obligations under the PRA 3. Construing the PRA 4. What is a public record? 5. Valid requests, Managing Resources, & Initial responses 6. Exemptions and how they apply 7. Legislative updates 8. Electronic records and disclosure 9. Fees an Agency may charge 10. Agency and Employee Liability 11. Attorney Generals model rules 12. Case law updates 13. Tips & Resources 3

4 Early 70s spirit of government reform Government operating in secrecy Influence of money on campaigns and elected officials Initiative 276 Sponsored by original Coalition for Open Government Passed by 72% vote in 1972 Contained 10 exemptions from disclosure Codified as Public Disclosure Act, RCW 42.17 Campaign finance, lobbyist, and records disclosure Public Disclosure Commission for enforcement Public Records Act, RCW 42.56, spun off in 2006 Key to citizens holding government accountable

5 The People do not yield their sovereignty to the agencies which serve them. They do not give public servants the right to decide what is good for the people to know and what is not good for them to know. Remain informed so they may maintain control over the instruments they have created. 5

6 Agencies shall appoint a public records officer. RCW 42.56.580 Duty to Publish – Name & contact info of public records officer. RCW 42.56.580. How to submit requests for information. RCW 42.56.040. Agency organization, rules, and procedures. RCW 42.56.040. Index of specified categories of records. RCW 42.56.070. Customary business hours posted on website. RCW 42.56.090. Records shall be available for inspection and copying during customary business hours. RCW 42.56.090. 6

7 Agencies shall adopt reasonable rules. RCW 42.56.100. Provide full public access to public records Protect public records from damage or disorganization Prevent excessive interference with other essential functions Provide fullest assistance to requester, and most timely possible action Parmelee v. Clarke, 147 Wn. App. 1035 (2009) 7

8 RCW 42.56.010(2): 1. Any writing 2. which contains information relating to the conduct of government or the performance of any governmental or propriety function 3. prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics. Concerned Ratepayers Assn v. PUD No. 1, 138 Wn.2d 950 (1999). 8

9 Handwriting, typewriting, printing, photostating, photographing, and every other means of recording any form of communication or representation, including, but not limited to, letters, words, pictures, sounds, or symbols, or combination thereof, and all papers, maps, magnetic or paper tapes, photographic films and prints, motion picture, film and video recordings, magnetic or punched cards, discs, drums, diskettes, sound recordings, and other documents including existing data compilations from which information may be obtained or translated. 9


11 Request must be for identifiable records Not a request for general information. There must be a reasonable description of the record. Bonamy v. City of Seattle, 92 Wn. App. 403, 410 (1998) No duty to create records. Smith v. Okanogan County, 100 Wn. App. 7, 14 (2000) A request must have sufficient clarity to give the agency fair notice that it has received a PRA request. Germeau v. Mason County. An identifiable record is one that agency staff can reasonably locate. WAC 44-14-04002. Agency forms should be encouraged, but are not required. No official format for a valid request. Hangartner v. City of Seattle, 151 Wn.2d 439 (2004). Must not deny overbroad requests. RCW 42.56.080. 11

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13 Within five (5) business days an agency must: 1. Provide the record(s)**, or 2. Acknowledge receipt and provide a reasonable estimate of response time, or Reasonable estimate should be based on complexity and number of requests, agency resources, and other essential functions. 3. Deny the request and explain why, or 4. Seek clarification. ** You may also fulfill disclosure by providing an internet address and link to the agency website. RCW 42.56.520. Failure to acknowledge a request in 5 days is a violation of the PRA. West v. DNR (filed August 2011). 13

14 The time required to fully respond. WAC 44-14-04003(6). 1. Assemble and review records An agency must conduct an objectively reasonable search for responsive records. WAC 44-14-04003(9). 2. Notice to persons named in the record Notice should be provided early, only if arguably exempt, and specify a date for disclosure. WAC 44-14-04003(11). The requester has an interest in any legal action to prevent disclosure of the requested records. WAC 44-14-04003(11). The agency's notice should inform the third party that he or she should name the requestor as a party to any action to enjoin disclosure. Burt v. Dept. of Corr., 168 Wn.2d 828 (2010) 3. Redact exempt information For electronic records such as data bases, an agency can sometimes redact a field of exempt information by excluding it from the set of fields to be copied. WAC 44-14-04004(4)(b)(i). 4. Create a withholding index. WAC 44-14-04004(4)(b)(ii). 14

15 Based on complexity and number of requests, agency resources, and other agency essential functions. An agency should not use the same estimate for every request. WAC 44-14-04003(6). An agency should briefly explain to the requestor the basis for the estimate in the initial response. WAC 44-14-04003(6). Extended estimates are appropriate when the circumstances have changed. WAC 44-14-04003(6). Explain the need to revise an estimate. Routine extensions with little or no action show that previous estimates probably were not reasonable. WAC 44-14-04003(6). 15

16 Unjustified failure to provide the record by the expiration of the estimate is a denial of access to the record. WAC 44-14-04003(10). But see Forbes v. City of Gold Bar, 171 Wn. App. 857 (2012). Failure to acknowledge a request for records within five business days constitutes a violation of the PRA. West v. DNR, (filed August 2011). Violante v. King County Fire Dist. No 20, 114 Wn. App. 565 (2002). Request for a copy of 2001 budget. 1st request (4/18/2001) - ignored. 2nd request (4/27/2001) - 14 day estimate for production. 3rd request (5/18/2001) - $$ amount provided, no budget. 4th request (5/25/2001) - No response. Lawsuit filed (6/21/2001) - Disclosure (8/3/2001) Viewed objectively the lawsuit was necessary to obtain records. Plaintiff awarded costs and penalties for delay. 16

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18 Zink v. City of Mesa, 140 Wn. App. 328 (2007) City of Mesa – Population of 440 172 requests over 2.5 years; City limits access to inspect public records to one hour per day; claims harassment Administrative difficulty does not excuse strict compliance. Copies may be provided in batches 10% Deposit may be charged for copy costs No insurance coverage – municipal bankruptcy?? 18

19 Neighborhood Alliance of Spokane County v. Spokane County (filed September 29, 2011) reasonably calculated to uncover all relevant documents depends on the facts of each case An adequate search is separate from whether additional responsive documents exist but are not found Must make more than a perfunctory search Follow obvious leads as they are uncovered The search should not be limited to one or more places if there are additional sources Not every possible place a record may conceivably be stored, but only those places where it is reasonably likely to be found 19

20 Each request is unique. Meet w/ personnel, ask questions, document the logic of a search. Reasonableness is the standard. Seek clarification & educate the requester. Implement records management, search, and retrieval systems. Checklist items: 1. What divisions or offices conducted a search for public records? 2. Which employees within those divisions responded? 3. What specific guidance was provided to interpret the request? 4. What software was used to conduct the search? 5. Document employee training on the use of the software. 6. Was the search specific to a particular file type, or any file type? 7. What search terms are used by each responding employee? (good search software will save the search terms with the responsive electronic records) 8. Responsive records should be saved. (electronic storage is cheap and saving your results helps to show your search was adequate) 20

21 Personal Privacy School Records Employee Files Tax Filings Credit Card Numbers Police Investigations Sex Offender Reports License Applications Test Questions Employment Applications Unfair Practice Questions Real Estate Appraisals Formulas Designs Computer Source Code Ferry Bid Financial Info Loan Applications Business Plans Valuable Trade Info Public Stadium Leases Casino Audits Alcohol Sales Business Methods Life Sciences Discovery Fund Trade Secrets Farm Plans Production Plans Grant Applications Drafts Notes Opinions Attorney-Client Communications Archaeological Maps Watershed Analysis Historical Sites Artifact Locations Religious Sites Library Records Vocation Schools Tuition Units College Gifts Utility Records Telephone Records Vanpool Members Carpool Members Paratransit Users Transit Pass Users Truck equipment Toll Transponders Timeshare Members Homeowner Association Members Condominium Members Social Security Numbers Health care providers Pharmacy Records Quality Improvement Committees Antitrust Exemptions Domestic Violence Programs Rape Crisis Centers Livestock Ginseng Growers Animal Identification Homeless Shelters Transitional Housing Viators Bank Examinations Unemployment Security Emergency Response Endangered SpeciesRadio frequencies Veteran Discharge Papers Fireworks Reports Correctional Industries Over 500 Exemptions!

22 Personal information in files maintained for clients of public institutions. RCW 42.56.230(1). Personal information in files maintained for employees, if private. RCW 42.56.230(2). See Mechling v. Monroe, 152 Wn. App. 830 (2009) Investigative files of law enforcement. RCW 42.56.240. See Koenig v. Thurston County Prosecutor (September 27, 2012) Preliminary drafts or recommendations in which opinions are expressed or policies formulated. RCW 42.56.280. See PAWS v. UW, 125 Wn.2d 243, 256 (1995). Attorney advice or work. RCW 5.60.060(2)(a); RCW 42.56.290. Other exemptions in law (FERPA, Trade Secrets Act, HIPAA & health care information, etc.) 22

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24 No general privacy exemption. See AGO 1988 No 12 Privacy must be incorporated into an element of a specific exemption. For example: Personal information in files maintained for employees, if private. RCW 42.56.230(2). Privacy is invaded if disclosure is 1) Highly offensive to a reasonable person; AND 2) not of legitimate concern to the public. RCW 42.56.255. Tiberino v. Spokane County, 103 Wn. App. 680 (2000) Excessive personal emails - employee discharged Emails an exhibit for legal defense in lawsuit Email usage a public record but exempt (violates privacy) Check your agency computer/email policy! 24

25 Log required when an agency redacts or denies public records. Identify the type of record, date, pages, author, recipients, statutory exemption and a brief explanation. WAC 44-14-04004(4)(b)(ii). Rental Housing Association of Puget Sound v. City of Des Moines, 165 Wn.2d 525 (2009). City adopted a Crime free rental housing program with a $105 fee per rental unit. RHA requested records and the City Attorneys cover letter generally characterized withheld documents without providing individual descriptions. No log? – Statute of Limitations unenforceable. Sanders v. State Attorney General, 169 Wn.2d 827 (2010). Mere category of info fails to provide the required explanation. Increases penalty amounts where a violation is found. 25

26 Page No. DateDoc. Type AuthorRecipientBasis of exemption 134/1/11EmailTim FordJoe SmithControversy – RCW 42.56.290 444/1/11MemoTim FordSue BrownAtty/Client Priv. – RCW 42.56.070(1) and RCW 5.60.060(2)(a) 26 Page No. DateDoc. Type AuthRecipExemptionBrief Explanatory Description 134/1/1 1 EmailTim Ford Joe Smith Attorney Work Product Privilege – RCW 42.56.290 Drafts, notes, memoranda, or research reflecting the opinions or mental impressions of an attorney or attorney's agent prepared, collected, or assembled in litigation or in anticipation of litigation 444/1/1 1 MemoTim Ford Sue Brown Atty-Client Priv. RCW 5.60.060(2)(a); RCW 42.56.070(1) Communication between attorneys that reflect attorney-client communications regarding litigation

27 RCW 42.56.565 - Enjoining harassing inmate requests (2009) made to harass or threaten safety and security RCW 42.56.250(8) - Exempting photos and dates of birth for criminal justice agency workers (2010) RCW 42.56.520 – Allowing disclosure by providing an internet address on the agencys website for the public record (2010) New changes effective on July 22, 2011: SHB 1899 – Changing penalty amounts for PRA violations Penalty range of $5 - $100 per day; now $0 - $100 SSB 5025 – Requests by inmates ineligible for penalties. Except for bad faith violations ESSB 5098 – Exempting personal info of minors in programs. Includes programs such as early learning, child care, parks & recreation, youth development, after-school. 27

28 HB 1300 – Recovering personnel costs Provides a requester five free hours per month of agency personnel time to search and copy records. HB 1316 – Enjoining any harassing request Defines harassment to include requests which intend to interrupt or impair government services, or intend to annoy, torment, or terrorize agency employees. HB 6351 – Amending RCW 42.56.565 The criminal injunction statute would apply to all harassing requests. HB 6146 – Charging for commercial requests SB 6576 – Allowing school districts to charge for staff time related to fulfilling public records requests 28

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30 Agencies should develop, store, manage, and make public records widely available electronically. RCW 43.105.250. Agencies should provide electronic records in an electronic format when requested. Use a commercially available format or translatable format. WAC 44-14-05001; Moore v. DOC (June 2006) State worker seeking information on how the Department implements state law governing public employees eligibility for health insurance. DOC refused to give info on a CD (estimated cost of $1.04). $5,700 for some 38,000 pages of documents. paper.html#ixzz13P1kM2bt paper.html#ixzz13P1kM2bt 30

31 Mechling v. City of Monroe, 152 Wn. App. 830 (2009). Requester wanted emails of councilmember in electronic format. Some emails were exempt and required redaction. No provision of the PRA expressly requires a governmental agency to provide records in electronic form. Consistent with fullest assistance requirement (RCW 42.56.100) and the model rules, on remand the trial court shall determine whether it is reasonable and feasible for the City to do so. City need not scan printed emails redacted by hand. Total charges paid for redacted paper copies was $76.20 at 15 cents/page. On remand, the city paid $157,000 to settle the case and disclosed all records in an electronic form. 31

32 ONeill v. City of Shoreline, 170 Wn.2d 138 (2010). Oral public records request for copy of email related to a zoning matter. Email was on a personal account on a personal laptop – Public record? Case of first impression – is meta-data a public record? Meta-data is data about data or hidden information about electronic docs created by software programs. Meta-data embedded in a public record must be disclosed but only when specifically requested. An agency must conduct an objectively reasonable search for responsive records. WAC 44-14-04003(9). Cost of purchasing software to search MAC laptop = $500 to $1,000. 32

33 ONeill continued Records retention implications: Use agency email servers!! Emails of elected official are subject to retention and disclosure. WAC 434-662-150. How do you retain meta-data without destroying it? Electronic records must be retained in electronic format and remain usable, searchable, retrievable and authentic for the length of the designated retention period. WAC 434-662-040. Paper is not a substitute unless approved. Retain all web content. WAC 434-662-040. An agency is responsible for a security backup of active records. 33

34 1. Copy costs – Inspection is free. Agencies lose money for redacted paper copies that are only inspected. 2. Storage – Electronic storage costs are less than paper. 3. Staff time – Simplicity of electronic redaction process will reduce redaction time and errors. Scanning paper back into electronic form reduces productivity. 4. Security – Inspection of paper copies at agency offices may require supervision. Electronically redacted records may be mailed for inspection. 5. Lawsuit – Metadata isnt preserved in a redacted paper format. Do you really want to be sitting in court thinking how it would have been much cheaper just to buy the software for electronic redaction? 34

35 Any person may inspect public records for free. No charge to search, review, or redact public records. Copying fees may not exceed 15 cents per page unless an agency determines its actual per page costs. Actual costs may include staff time if directly related to copying and shipping (including scanning). Electronic copies cost practically nothing. Agencies may send a scanning/copying project to an outside vendor if quicker and less expensive. WAC 44- 14-07001(5). 35

36 Citizen lawsuit may be filed in court within 1 year of claim of exemption or last production on an installment basis. RCW 42.56.550 Agency has the burden of proof. Payment of court costs and attorney fees. RCW 42.56.550. Payment of mandatory penalties: $0 to $100 per day for unlawful delay or denial (SHB 1899) Inmates are not entitled to penalties unless agency acts in bad faith. (SSB 5205). 36

37 Armen Yousoufians request in 1997. King County delayed release nearly four years. Litigation took over 11 years with 3 supreme court rulings. Yousoufian v. King County, 168 Wn.2d 444 (2010) Seven mitigating factors: 1. Unclear request, 2. Prompt response, or legitimate clarification inquiry, 3. Good faith**, honest, timely, and strict compliance with all PRA procedural requirements and exceptions, 4. Proper training and supervision of the agency's personnel, 5. Reasonableness of any explanation for noncompliance, 6. Helpfulness** of the agency to the requestor, 7. Existence of agency systems to track and retrieve. 37

38 Nine aggravating factors: 1. Delayed response (especially where time is of the essence**), 2. Lack of strict compliance by the agency with all the PRA procedural requirements and exceptions, 3. Lack of proper training and supervision of the agency's personnel, 4. Unreasonableness of any explanation for noncompliance by the agency, 5. Negligent, reckless, wanton, bad faith, or intentional noncompliance with the PRA by the agency, 6. Agency dishonesty, 7. Public importance of the issue related to the request (where forseeable to the agency**) 8. Actual personal economic loss to the requestor resulting from the agency's misconduct, where the loss was foreseeable to the agency 9. Amount necessary to deter future misconduct by the agency considering the size of the agency and the facts of the case. Yousoufian award = $45/day for 8,252 days totals $371,340 38

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40 Violation of the Ethics in Public Service Act, RCW 42.52.050(4) Intentionally conceal a public record; Required to be released under the Public Records Act; and Employee was under a personal obligation to release the record. Applies primarily to state employees. Enforcement by state ethics board for state employees Up to $5,000 per violation Payment of damages sustained by the state Payment of costs, including investigation 40

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42 RCW 40.16.020 – Injury to and misappropriation of record. Every officer who shall mutilate, destroy, conceal, erase, obliterate, or falsify any record or paper appertaining to the officer's office,..... is guilty of a class B felony and shall be punished by imprisonment in a state correctional facility for not more than ten years, or by a fine of not more than five thousand dollars, or by both. State v. Norgard, 183 Wash. 208 (1935) (upholding 17 criminal convictions of Mr. Norgard, Snohomish County Clerk for falsifying public receipts and converting public money for personal use.) State v. Korba, 66 Wn. App. 666 (1992) (employee guilty on 5 counts of injury or misappropriation of a public record for discarding applications for copies of birth certificates and keeping the copying fee). 42

43 Former National Security Adviser Sandy Berger Community service and probation, fined $50,000 for removing and Destroying highly classified documents from the National Archives. Former Skamania County Auditor - J. Michael Garvison Both have upcoming trials and face felony charges including misappropriation of a Public Document Destruction Embezzelment Former Lewis County Museum Director -Debbie Knapp

44 Provides best practices for compliance Any part of the model rules may be adopted Rules contain advisory comments Rules are non-binding, but they are based on extensive outreach and court decisions A resource for training Ch 44-14 WAC 44

45 Forbes v. City of Gold Bar, 171 Wn. App. 857 (2012). An agency has a right to extend a reasonable estimate based on specified criteria. Mechling v. City of Monroe, 152 Wn. App. 830, 849 (2009). Consistent with the statutory duty to provide the fullest assistance and the model rules.... Remand to determine if feasible to provide copies in an electronic format. WAC 44-14-05001. Koenig v. Pierce County, 151 Wn. App. 221, 223 (2009). Model rules are nonbinding, and the PRA does not require an agency to coordinate across departmental lines. WAC 44-14-01001. Beal v. City of Seattle, 150 Wn. App. 865, 874-875 (2009) AGs rules are non-binding but contain persuasive reasoning. WAC 44-14-03006 (Requestors are strongly encouraged to make written requests). Soter v. Cowles, 162 Wn.2d 716, 753-754 (2007) (The Attorney General's model rules on public disclosure explain that agencies can seek injunctive relief. WAC 44-14-08004(5)(c).) 45

46 Rental Housing Association of Puget Sound v. City of Des Moines, 165 Wn.2d 525, 539 (2009) (Attorney Generals model rules require an agency to create a withholding index or privilege log when claiming an exemption from disclosure. WAC 44-14-04004(4)(b)(ii).) Burt v. Dept. of Corr., 168 Wn.2d 828 (2010) ([i]f an injunctive action is filed, the third party or agency should name the requestor as a party or, at a minimum, must inform the requestor of the action to allow the requestor to intervene. WAC 44-14-04003(11)) Sargent v. Seattle Police Dept., (filed Sept 19, 2011) (An agency is not obligated to supplement responses.) WAC 44-14-04004(4)(a). Mitchell v. WA State DOC, (filed Sept 7, 2011) (rules are not binding but provide useful guidance to agencies... Agencies need not provide records electronically if it is not technically feasible to do so.) WAC 44-14-05001. 46

47 AGs Open Government Ombudsman (360) 586-4802 Municipal Research & Services Corp. (206) 625-1300 Model Rules on Public Disclosure Secretary of State (retention of records) / / 47

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