PRA Case Law Round Up for 2016

Hello 2017! It’s a new year and a perfect time for a 2016 PRA case law round up. Below, organized by topic, are the 2016 PRA cases of interest to Washington State local governments. Drum roll, please…

1. Per Page Penalties Authorized.

Trial courts have broad discretion in setting PRA penalties, including determining that each withheld page constitutes its own record and therefore PRA penalties may be calculated per page. Wade’s Eastside Gun Shop v. L&I. 

2. One-Year Statute of Limitations for PRA Lawsuits.

A requestor has one year to sue an agency for a PRA violation from the date of an agency’s final, definitive response to a PRA request, otherwise the lawsuit is time barred.  Belenski v. Jefferson County.   

3. No Constitutional Privacy Rights in Public Records on Personal Accounts.

This statement may sound oddly familiar since the Supreme Court made a similar ruling in the 2015 Nissen v. Pierce County case, holding an official had no constitutional privacy rights in a public record on his personal cell phone. West v. Vermillion and City of Puyallup expanded the Nissen ruling, holding that employees and officials have no constitutional privacy rights—including those afforded by the U.S. Constitution (the First and Fourth Amendments) and the Washington State Constitution (article I, section 7)—in public records on their personal websites and personal email accounts. 

4. Woodland Park Zoological Society Is Not Subject to the PRA.

At the beginning of 2016, the Washington Court of Appeals ruled on Fortgang v. Woodland Park Zoo. Then on January 12, 2017—just as this blog was to be posted—the Washington Supreme Court issued its ruling in the case, in which they: (1) adopted the Telford test for determining whether a private entity, including a private nonprofit, is the functional equivalent of a governmental agency and thus subject to the PRA; and (2) agreed with the Court of Appeals that the Woodland Park Zoological Society (that operates the zoo) is not the functional equivalent of a government agency and therefore not subject to the PRA

5. Exemptions. 

The following cases from 2016 provided guidance on specific exemptions from the PRA. 

A. Attorney Work Product – RCW 42.56.290

• The common interest doctrine applies to public records. When multiple parties share confidential communications pertaining to their joint claim or defense, the communications remain privileged—and exempt from disclosure under the PRA—as attorney work product or attorney-client communications. Kittitas County v. Sky Allphin. For more information, see this MRSC blog post. 

B. Categorical Investigative Records Exemption – RCW 42.56.240(1)

• The categorical investigative records exemption only applies to open and active investigations. For the categorical exemption in RCW 42.56.240(1) to apply to investigative records, the investigation must, in fact, be open and active. If the investigation is not active, application of the categorical exemption is invalid and the statute of limitations does not apply. White v. City of Lakewood (in executing a search warrant, city police discovered three grams of marijuana, pipes, and cash in an apartment but the police department made no arrests or further investigation). For more information, see this MRSC blog post.
• L&I’s investigation records are not covered by the categorical investigative records exemption. The investigative records exemption was also implicated in Wade’s Eastside Gun Shop v. L&I, where the court held the Department of Labor and Industries (L&I) cannot assert the categorical investigative records exemption for L&I investigative records. The court distinguished open, unsolved criminal investigations (to which the exemption applies) with L&I’s investigations because, in L&I investigations, the employer knows he/she is being investigated and disclosure of the investigation details will not impede the investigation like it would in a criminal investigation. For more information, see this MRSC blog post.

C. Commercial Purpose Exemption – RCW 42.56.070(9)

• Agency required to further investigate when it receives a request for list of names likely to be used for a commercial purpose.  An agency is required to investigate the requestor’s purpose when a requestor asks for a list of names and there is evidence suggesting the intended use is actually for a commercial purpose. SEIU Healthcare v. DSHS and Freedom Foundation. MRSC has a sample commercial purpose declaration that can be reviewed with your agency’s attorney and potentially used if your agency finds itself in this situation. For more information on this case, see this MRSC blog post.  

D. “Other Statute” – RCW 42.56.070 and RCW 4.24.550

• Level I sex offender information isn’t exempt. The Community Protection Act (RCW 4.24.550) isn’t an “other statute” exemption; therefore, Level I sex offender information isn’t exempt under the PRA. John Does v Washington State Patrol.

6. Unpublished PRA Cases of Interest.

2016 also saw numerous unpublished PRA cases of interest to local governments. Although I can’t cover these unpublished cases in depth in this post due to space constraints, I think two are particularly intriguing: Jones v. Dep’t of Corrections and Kozol v. Dep’t of Corrections, both of which ruled that inadvertent loss (as opposed to unlawful destruction) of a record responsive to a PRA request does not violate the PRA.

What will 2017 hold for PRA cases? I think it will be an interesting year for the PRA; let me know your thoughts in the comments below or by email at fcollins@mrsc.org.