2012 End of Year Public Records Alert
December 12, 2012
by
Joe Levan
Category:
Public Records Act
As 2012 draws to a close, I want to call to the attention of local government officials and staff members some recent developments related to public records law and requirements that I think are particularly significant.
In previous posts on this blog, I have written about a few key court decisions that I think provide useful guidance on public records issues that are commonly faced by local governments. In September, I wrote about the threshold issue under our state’s Public Records Act (PRA), chapter 42.56 RCW: what is a public record? See, “Recent Court Guidance on What Constitutes a Public Record under the Public Records Act.” In May, I wrote about what constitutes an adequate search under the PRA. See, “Adequate Search under the PRA – Suggested Best Practices.”
More recently, in mid-November I co-presented with Scott Sackett of the Washington State Archives a webinar entitled, “Public Records: Tackling the Tough Questions (Including Use of Smart Phones and Other Thorny Issues).” In the webinar, we provided practical guidance on how to address PRA and records retention issues related to use of non-agency laptops and other personal electronic devices, such as smart phones. Click here to link to both the PowerPoint presentation and the webinar itself.
An important PRA court decision that was published the same day we conducted our webinar (November 13, 2012) is the decision by the Washington State Court of Appeals, Division I, in Forbes v. City of Gold Bar (Case No. 66630-4-I). In that decision, the court addressed a situation, likely familiar to many local government officials and staff, in which the mayor, city councilmembers, and city staff were using their own personal desktop computers, laptops, and other personal electronic devices (e.g., personal digital assistants) to conduct city business. A citizen made a PRA request for, in part, emails of the mayor, city councilmembers, city staff, and others, including records on private computer systems and electronic devices, as well as text messages and photos.
I think a couple of issues addressed by the court are particularly noteworthy for local governments. One, the court addressed whether the city conducted an adequate search in response to a multitude of broad PRA requests. In doing so, the court relied upon Neighborhood Alliance v. Spokane County, 172 Wn.2d 702 (2011), which is the decision that was the focus of my above-mentioned post on suggested best practices for conducting an adequate search under the PRA. This more recent decision, Forbes v. City of Gold Bar, is particularly instructive because it gives a sense of how courts apply the requirements set out in the Neighborhood Alliance decision related to conducting an adequate search.
I think the challenge for local governments in the context of the Neighborhood Alliance decision is both to ensure the agency conducts an adequate search in response to a PRA request, and to make sure the agency effectively and accurately documents its search efforts. By so doing, an agency can properly defend itself if a PRA requester, as in Forbes, later sues and alleges the agency has not conducted an adequate search.
If you read the Forbes decision in full, you will see that the city took several actions to respond to the more than 80 PRA requests it received from Ms. Forbes and those aligned with her. For example, the city contracted with a computer consultant to search for and store the electronic records at issue, hired an additional employee, and transferred an employee from one department to another to work on responding to the requests. The court noted that the city, throughout, communicated with the requester about how long it would take to respond to the requests and that the city provided records as they became available. The requester, however, was unsatisfied with the city’s response and sued under the PRA.
In dismissing the requester’s lawsuit and finding that the city acted appropriately, a touchstone for the court was whether the city acted reasonably under the circumstances. The court found that the city responded to and provided the requested records within a reasonable time. In so doing, the court analyzed aspects of the PRA and its “Model Rules,” including RCW 42.56.520, RCW 42.56.550, WAC 44-14-00001, and WAC 44-14-04003(10). The court found, further, that the city acted reasonably in making records available on a partial or installment basis as allowed under RCW 42.56.080.
In analyzing whether the city acted reasonably, the court looked to measureable and objective information provided by the city, including through the mayor’s affidavit and declaration submitted to the court. The court noted that the city spent 12 percent of its income responding to PRA requests in 2010, that the steps the city took to comply with the PRA request at issue were extensive, and that the city made available over 28,000 records through 11 disclosures, including via email, CD, and DVD.
In analyzing what is a “reasonable search,” the court relied on the Neighborhood Alliance decision as well as federal case law interpreting the federal Freedom of Information Act (FOIA), which indicates that, in analyzing whether an agency’s search process is reasonable, the key is whether the agency’s search for responsive records was adequate, not whether any additional records might conceivably exist. The court found that the city conducted an extensive search of multiple sites where the responsive records might be located, and that, therefore, the search “was reasonably calculated to uncover all relevant documents.”
I think one of the significant messages here is “show your work.” Because the city in Forbes was able to show the court through affidavit and declaration that city officials and staff members took reasonable steps to respond to the PRA requests at issue and to conduct an adequate search, the court dismissed the PRA lawsuit against the city. Of course, many PRA situations will be much less involved than that faced by Gold Bar in the Forbes decision. What is reasonable will depend upon the particular facts at issue, which is why I think it’s important for local governments to pay close attention to how courts analyze such situations.
Another issue addressed by the court that I think is noteworthy and is particularly relevant for local governments relates to use of personal electronic devices by various city officials to conduct city business. In Forbes, the PRA requester sought from the court an “in camera” review (i.e., private review by the judge) of data obtained from the PDAs (personal digital assistants) and emails of several city officials, and she contended that the city failed to create a log as required by the PRA. The city argued that the emails not released were private emails the city obtained in its attempt to recover work-related emails that existed on the personal electronic devices of various city officials.
The court also found in the city’s favor on this issue, noting that a PRA case may be decided based on affidavits alone. The court made clear that an agency’s affidavit is accorded a presumption of good faith and “purely speculative claims about the existence and discoverability of other documents will not overcome” such an affidavit. Reinforcing the principle of “show your work” that I alluded to above, the court found that the city’s affidavits demonstrated a clear, consistent, and uncontradicted record evidencing that the city conducted an adequate search for the requested records and responded in a reasonable time.
Regarding the personal emails that were requested, the court, distinguishing the situation addressed by the court in Mechling v. City of Monroe, 152 Wn. App. 830 (2009), review denied, 169 Wn.2d 1007 (2010), found that the purely personal emails of the city officials at issue are not public records. The court explained that the emails at issue in Mechling were subject to disclosure because those emails contained information relating to the conduct of government. In the situation here, however, the court found that the records did not discuss governmental conduct but rather were “emails in which there is no city business referenced or discussed.” The court explained further that the city was not required to claim as exempt personal emails that do not pertain to government business. This is because such purely personal emails are not public records and PRA exemptions only apply to public records.
One other issue that piqued my interest in the Forbes decision could become significant as PRA caselaw continues to evolve. In a footnote at the end of the opinion, the court noted (referencing a footnote in another decision):
For me, these footnotes by the courts in Forbes and O'Neill v. City of Shoreline beg the question: what would happen if a local government official in such a situation does not consent to a search of their personal computer? This issue has not been addressed in Washington state case law. It seems to me that the courts in these footnotes are recognizing that, at least in some circumstances, an argument could be made that a search of an official’s personal computer and/or personal electronic device could violate the official’s privacy rights under article I, section 7 of our state constitution. Perhaps one day our courts will address this issue directly.
As a final note, I want to call your attention to a significant records retention issue. The Washington State Archives (WSA) recently announced that it has published revisions to its local government retention schedules. All current retention schedules are currently available in PDF and Word formats through the Type of Agency and Alphabetical List pages on the WSA’s website. In case you missed it, the WSA sent out a notification on November 30, 2012, that provides:
(Emphasis in original.)
Keep in mind that the contact information directly above is for the Washington State Archives and relates to the above referenced records retention requirements. As for us here at MRSC, we encourage officials and staff members of cities, counties, and those special purpose districts we serve to contact us at (206) 625-1300 or (800) 933-6772 or via our website (www.mrsc.org).
In previous posts on this blog, I have written about a few key court decisions that I think provide useful guidance on public records issues that are commonly faced by local governments. In September, I wrote about the threshold issue under our state’s Public Records Act (PRA), chapter 42.56 RCW: what is a public record? See, “Recent Court Guidance on What Constitutes a Public Record under the Public Records Act.” In May, I wrote about what constitutes an adequate search under the PRA. See, “Adequate Search under the PRA – Suggested Best Practices.”
More recently, in mid-November I co-presented with Scott Sackett of the Washington State Archives a webinar entitled, “Public Records: Tackling the Tough Questions (Including Use of Smart Phones and Other Thorny Issues).” In the webinar, we provided practical guidance on how to address PRA and records retention issues related to use of non-agency laptops and other personal electronic devices, such as smart phones. Click here to link to both the PowerPoint presentation and the webinar itself.
An important PRA court decision that was published the same day we conducted our webinar (November 13, 2012) is the decision by the Washington State Court of Appeals, Division I, in Forbes v. City of Gold Bar (Case No. 66630-4-I). In that decision, the court addressed a situation, likely familiar to many local government officials and staff, in which the mayor, city councilmembers, and city staff were using their own personal desktop computers, laptops, and other personal electronic devices (e.g., personal digital assistants) to conduct city business. A citizen made a PRA request for, in part, emails of the mayor, city councilmembers, city staff, and others, including records on private computer systems and electronic devices, as well as text messages and photos.
I think a couple of issues addressed by the court are particularly noteworthy for local governments. One, the court addressed whether the city conducted an adequate search in response to a multitude of broad PRA requests. In doing so, the court relied upon Neighborhood Alliance v. Spokane County, 172 Wn.2d 702 (2011), which is the decision that was the focus of my above-mentioned post on suggested best practices for conducting an adequate search under the PRA. This more recent decision, Forbes v. City of Gold Bar, is particularly instructive because it gives a sense of how courts apply the requirements set out in the Neighborhood Alliance decision related to conducting an adequate search.
I think the challenge for local governments in the context of the Neighborhood Alliance decision is both to ensure the agency conducts an adequate search in response to a PRA request, and to make sure the agency effectively and accurately documents its search efforts. By so doing, an agency can properly defend itself if a PRA requester, as in Forbes, later sues and alleges the agency has not conducted an adequate search.
If you read the Forbes decision in full, you will see that the city took several actions to respond to the more than 80 PRA requests it received from Ms. Forbes and those aligned with her. For example, the city contracted with a computer consultant to search for and store the electronic records at issue, hired an additional employee, and transferred an employee from one department to another to work on responding to the requests. The court noted that the city, throughout, communicated with the requester about how long it would take to respond to the requests and that the city provided records as they became available. The requester, however, was unsatisfied with the city’s response and sued under the PRA.
In dismissing the requester’s lawsuit and finding that the city acted appropriately, a touchstone for the court was whether the city acted reasonably under the circumstances. The court found that the city responded to and provided the requested records within a reasonable time. In so doing, the court analyzed aspects of the PRA and its “Model Rules,” including RCW 42.56.520, RCW 42.56.550, WAC 44-14-00001, and WAC 44-14-04003(10). The court found, further, that the city acted reasonably in making records available on a partial or installment basis as allowed under RCW 42.56.080.
In analyzing whether the city acted reasonably, the court looked to measureable and objective information provided by the city, including through the mayor’s affidavit and declaration submitted to the court. The court noted that the city spent 12 percent of its income responding to PRA requests in 2010, that the steps the city took to comply with the PRA request at issue were extensive, and that the city made available over 28,000 records through 11 disclosures, including via email, CD, and DVD.
In analyzing what is a “reasonable search,” the court relied on the Neighborhood Alliance decision as well as federal case law interpreting the federal Freedom of Information Act (FOIA), which indicates that, in analyzing whether an agency’s search process is reasonable, the key is whether the agency’s search for responsive records was adequate, not whether any additional records might conceivably exist. The court found that the city conducted an extensive search of multiple sites where the responsive records might be located, and that, therefore, the search “was reasonably calculated to uncover all relevant documents.”
I think one of the significant messages here is “show your work.” Because the city in Forbes was able to show the court through affidavit and declaration that city officials and staff members took reasonable steps to respond to the PRA requests at issue and to conduct an adequate search, the court dismissed the PRA lawsuit against the city. Of course, many PRA situations will be much less involved than that faced by Gold Bar in the Forbes decision. What is reasonable will depend upon the particular facts at issue, which is why I think it’s important for local governments to pay close attention to how courts analyze such situations.
Another issue addressed by the court that I think is noteworthy and is particularly relevant for local governments relates to use of personal electronic devices by various city officials to conduct city business. In Forbes, the PRA requester sought from the court an “in camera” review (i.e., private review by the judge) of data obtained from the PDAs (personal digital assistants) and emails of several city officials, and she contended that the city failed to create a log as required by the PRA. The city argued that the emails not released were private emails the city obtained in its attempt to recover work-related emails that existed on the personal electronic devices of various city officials.
The court also found in the city’s favor on this issue, noting that a PRA case may be decided based on affidavits alone. The court made clear that an agency’s affidavit is accorded a presumption of good faith and “purely speculative claims about the existence and discoverability of other documents will not overcome” such an affidavit. Reinforcing the principle of “show your work” that I alluded to above, the court found that the city’s affidavits demonstrated a clear, consistent, and uncontradicted record evidencing that the city conducted an adequate search for the requested records and responded in a reasonable time.
Regarding the personal emails that were requested, the court, distinguishing the situation addressed by the court in Mechling v. City of Monroe, 152 Wn. App. 830 (2009), review denied, 169 Wn.2d 1007 (2010), found that the purely personal emails of the city officials at issue are not public records. The court explained that the emails at issue in Mechling were subject to disclosure because those emails contained information relating to the conduct of government. In the situation here, however, the court found that the records did not discuss governmental conduct but rather were “emails in which there is no city business referenced or discussed.” The court explained further that the city was not required to claim as exempt personal emails that do not pertain to government business. This is because such purely personal emails are not public records and PRA exemptions only apply to public records.
One other issue that piqued my interest in the Forbes decision could become significant as PRA caselaw continues to evolve. In a footnote at the end of the opinion, the court noted (referencing a footnote in another decision):
Because all of the officials consented to a search of their personal computers, we do not address whether such a search would violated [sic] article I, section 7 of the State Constitution that “[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law.” See, 170 Wn.2d O'Neill [v. City of Shoreline], 170 Wn.2d [138,] 149 [(2010)] at 155 n.1.
For me, these footnotes by the courts in Forbes and O'Neill v. City of Shoreline beg the question: what would happen if a local government official in such a situation does not consent to a search of their personal computer? This issue has not been addressed in Washington state case law. It seems to me that the courts in these footnotes are recognizing that, at least in some circumstances, an argument could be made that a search of an official’s personal computer and/or personal electronic device could violate the official’s privacy rights under article I, section 7 of our state constitution. Perhaps one day our courts will address this issue directly.
As a final note, I want to call your attention to a significant records retention issue. The Washington State Archives (WSA) recently announced that it has published revisions to its local government retention schedules. All current retention schedules are currently available in PDF and Word formats through the Type of Agency and Alphabetical List pages on the WSA’s website. In case you missed it, the WSA sent out a notification on November 30, 2012, that provides:
20 records retention schedules were approved yesterday by the Local Records Committee. The following versions are effective immediately; all previous versions have been superseded and no longer provide legal disposition authority:
- Local Government Common Records Retention Schedule (CORE) (Version 3.0)
- School Districts and Educational Service Districts Records Retention Schedule (Version 8.0)
- Utility Services Records Retention Schedule (Version 1.2)
In addition,Version 5.2 of the Local Government General Records Retention Schedule (LGGRRS) has been discontinued, and LGGRRS no longer exists. The following new “sector schedules” were also approved yesterday by the Local Records Committee. The LGGRRS Demolition Guide provides a crosswalk for every section – and for each series that was not transferred directly into the new sector schedules listed below. (Please note: The Public Works section was incorporated into the CORE Asset Management function.)
- Air Pollution Control Authorities Records Retention Schedule (Version 1.0)
- Animal Services Records Retention Schedule (Version 1.0)
- Cemeteries Records Retention Schedule (Version 1.0)
- Conservation Districts Records Retention Schedule (Version 1.0)
- Coroners and Medical Examiners Records Retention Schedule (Version 1.0)
- Economic Development and Transport Records Retention Schedule (Version 1.0)
- Emergency Communications Records Retention Schedule (Version 1.0)
- Fire and Emergency Medical Records Retention Schedule (Version 1.0)
- Housing Authorities Records Retention Schedule (Version 1.0)
- Juvenile Courts and Services Records Retention Schedule (Version 1.0)
- Land Use Planning and Permitting Records Retention Schedule (Version 1.0)
- Licensing, Permitting and Taxation Records Retention Schedule (Version 1.0)
- Parks, Recreation and Culture Records Retention Schedule (Version 1.0)
- Prosecuting Attorneys and Assigned Counsel Records Retention Schedule (Version 1.0)
- Social Services Records Retention Schedule (Version 1.0)
- Transit Authorities Records Retention Schedule (Version 1.0)
- Weed and Pest Control Districts Records Retention Schedule (Version 1.0)
All current, approved retention schedules are available on our website at: http://www.sos.wa.gov/archives/RecordsRetentionSchedules#.
We are currently updating the database and will send a listserv bulletin to advise you when it is once again available for your use. We are working as quickly as possible and appreciate your patience as we complete this very complex task.
Comments? Questions? Please send an email to: recordsmanagement@sos.wa.gov.
(Emphasis in original.)
Keep in mind that the contact information directly above is for the Washington State Archives and relates to the above referenced records retention requirements. As for us here at MRSC, we encourage officials and staff members of cities, counties, and those special purpose districts we serve to contact us at (206) 625-1300 or (800) 933-6772 or via our website (www.mrsc.org).
MRSC is a private nonprofit organization serving local governments in Washington State. Eligible government agencies in Washington State may use our free, one-on-one Ask MRSC service to get answers to legal, policy, or financial questions.
About Joe Levan
Joe served as an MRSC Legal Consultant and Legal Manager. He has been a municipal attorney for many years, including as an in-house city attorney, in private practice for two municipal law firms through which he provided litigation and a range of other services to several Washington municipalities, and as part of the in-house legal team for Sound Transit. He no longer works for MRSC.
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