Levan’s Lens on the Public Records Act – 2014

The end of the year provides an opportunity to look back over Public Records Act (PRA) legislative and case law developments from 2014. Here are some key points that I think are noteworthy for Washington local governments.

(1) There’s a new PRA training requirement in effect. The Open Government Training Act went into effect on July 1, 2014. It requires persons who hold certain state and local government offices and positions to complete training related to the PRA (and records retention) within 90 days of assuming office or entering into their position. See RCW 42.56.150 (elected officials), RCW 42.56.152 (public records officers). The Attorney General’s Office has issued 2014 Open Government Training Act Guidance that addresses the new law’s requirements in detail.

(2) Use of personal devices and personal email accounts to conduct agency business continues to pose challenges. Litigation involving Pierce County and the City of Bainbridge Island, among others, demonstrates the ongoing PRA challenges local governments encounter related to the use of personal devices and email accounts to conduct agency business.

• In the Pierce County case, Nissen v. Pierce County (Sept. 9, 2014), the requester sought cell phone call logs related to the county prosecutor’s private cell phone, as well as text messages sent and received from that cell phone. The prosecutor acknowledged that he used his private cell phone at times to conduct county business.

The court of appeals held that text messages sent and received from a government employee’s private cell phone are public records if they relate to government business, and that call logs for a government employee’s private cell phone are public records with regard to those calls that relate to government business, if the agency used or retained the call logs. The text messages at issue were prepared and used by the prosecutor as a government official, but the call logs were created by a private cellular company and provided to the official in his private capacity. The court indicated that it wasn’t clear from the record whether the agency used or retained the prosecutor’s phone logs, nor whether the call logs and/or the cell phone text messages in dispute pertained to the conduct of government business, and it remanded the case to the trial court to further develop the record. For more detail on this case, see my previous blog post.

• The City of Bainbridge Island paid nearly $500,000 (including attorney fees) to settle a PRA lawsuit (Paulson v. City of Bainbridge Island) involving the use by councilmembers of their personal computers and personal email accounts to conduct city business. In that case, the councilmembers were required to search their personal computers and personal email accounts for responsive records, and disputes arose between the city and the plaintiffs regarding, in part, whether the searches were adequate, whether the records production was timely, and whether records were improperly withheld. The fallout from the litigation and its settlement included the resignation of one of the councilmembers who was alleged to have violated the PRA. The Bainbridge case demonstrates that using personal computers and personal email accounts to conduct agency business can result in unintended consequences.

(3) Important privacy issues under the PRA remain unresolved by Washington courts. Consider, for example, a situation in which an agency official or employee uses his or her personal computer or cell phone to conduct agency business, a PRA request is made for records related to such use, and the agency provides all records it regards as responsive to the request. If the PRA requester disagrees and alleges that the agency is improperly withholding responsive records, what then?

A key point recognized by the court in Nissen v. Pierce County is that, if a record is purely personal, it’s not a public record. And, if it’s not a public record, an agency has no duty to produce it under the PRA. The requester in Nissen sought review of records to determine whether those records are public records, and those records weren’t made available to the requester because the prosecutor and the county regarded them as private records held by a third party (i.e., the cell phone company).

In its briefing, the county argued that several state and federal constitutional privacy-related provisions (e.g., Article I, Section 7 of the Washington Constitution, the Fourth and Fourteenth Amendments to the U.S. Constitution), as well as federal statutory law (e.g., the Stored Communications Act), are implicated to the extent the requester is requesting private records. The county argued that these provisions govern in that situation because constitutional protections trump the PRA, and because the PRA recognizes specific protections provided by other statutes, including federal ones. See, e.g., RCW 42.56.070(1), RCW 42.56.510.

I think it’s unfortunate that the court in Nissen didn’t address these privacy arguments because the issues and concerns implicated in those arguments are significant, both for agencies and PRA requesters. At some point, perhaps our courts and/or the Washington legislature will provide more clarity on this issue.

(4) If you’re claiming a record in whole or in part is exempt under the PRA, make sure you explain the specific basis for claiming that exemption. In a 5-4 decision issued this month, the Washington Supreme Court, in City of Lakewood v. Koenig, addressed a situation in which the city withheld driver’s license numbers in records in responding to a PRA request. The city cited to statutory provisions in claiming that such information is exempt from disclosure, but the court held that the city didn’t satisfy the PRA requirement that requires an agency, when it withholds or redacts records, to include in its response “a statement of the specific exemption authorizing the withholding of the record (or part) and a brief explanation of how the exemption applies to the record withheld.” RCW 42.56.210(3). The court held that the city violated this requirement because it failed to provide an explanation as to how the statutes cited as the basis for the exemption applied to the redacted driver’s license numbers. The court held that the requester was therefore entitled to attorney costs and fees, regardless of whether the records were properly withheld.

Note, though, that the dissenting opinion took issue with the majority’s decision, arguing that the decision, in effect, will impose an additional burden on agencies to provide sufficient explanation to prove that their claimed exemptions are correct, which goes beyond what is required by the PRA. The dissent indicated that attorney fees weren’t warranted because the city identified the records at issue and gave its reasons for redacting the information (i.e., driver’s license numbers).

As we look forward to 2015, it will be interesting to see how these, and other PRA issues, develop.

Photo courtesy of NEC.