Recent Court Decisions on the Jon Tunheim Thurston County Prosecuting Attorney The Myth of Sisyphus King Sisyphus was punished for thinking he was more clever than Zeus His punishment in death was to roll a rock up a hill in Hades only to have it roll back down just before he reached the top. He was sentenced to an after life of useless work and unending frustration RCW 42.56.540 & 42.56.565 RCW 42.56.540 The examination of any specific public record may be enjoined if, upon motion and affidavit by an agency or its representative or a person who is named in the record or to whom the record specifically pertains, the superior court for the county in which the movant resides or in which the record is maintained, finds that such examination would clearly not be in the public interest and would substantially and irreparably damage any person, or would substantially and irreparably damage vital governmental functions. An agency has the option of notifying persons named in the record or to whom a record specifically pertains, that release of a record has been requested. However, this option does not exist where the agency is required by law to provide such notice. RCW 42.56.565 Inspection or copying by persons serving criminal sentences — Injunction. (1) A court shall not award penalties under RCW 42.56.550(4) to a person who was serving a criminal sentence in a state, local, or privately operated correctional facility on the date the request for public records was made, unless the court finds that the agency acted in bad faith in denying the person the opportunity to inspect or copy a public record. (2) The inspection or copying of any nonexempt public record by persons serving criminal sentences in state, local, or privately operated correctional facilities may be enjoined pursuant to this section. Requirements Injunction is sought by the agency, any person named in the records, or a person whom the request pertains to, and The request was made to harass or intimidate the agency or employees, or Threaten the security of correctional facility, or Threaten the safety or security of any person, or Assist criminal activity Constitutionality Requester makes six requests for 13 categories of information 42.56.540 injunction granted re: photos, dates of birth, gender, race, height, weight, and phone #’s After 42.56.565 passed, King County obtained permanent injunction against requester On appeal, statute found not to violate due process or equal protection, and is not vague or overbroad King County Detention v. Parmelee, 162 Wn. App. 337 (2011) No Harm, No foul? Not! Requester made requests for records from three agencies Agencies were granted injunctions A requester who is not entitled to records cannot claim penalties for failure to produce them A requester may claim attorney’s fees if litigation is required to vindicate their right to inspect and copy records DeLong v. Parmelee, 164 Wn. App. 781 (2011) No Harm, No foul? Not! What if county fails to respond to a request, and Had no responsive documents Requester does not get daily penalties Requester DOES get legal costs and attorney’s fees because a lawsuit was required to enforce their right to a response. DeLong v. Parmelee, 164 Wn. App. 781 (2011) PRA Litigation When is it really a PRA Request? Requester was a union rep for Detective who was facing internal investigation Wrote a letter indicating he was the union rep Asserted union’s right to see investigative documents Asked to sit in on investigative interviews No mention of the PRA No documents produced in response Detective later made a clear PRA request for the documents and documents were provided Germeau v. Mason County Sheriff, 166 Wn. App. 789 (2012) When is it really a PRA Request? Union Rep does have standing to request records to sue for a PRA violation because he had a personal stake in the records as the representative for the requester (union) The first letter was not a PRA request because it did not give fair notice that it was a PRA request and was interpreted to be a demand for production under contractual rights Germeau v. Mason County Sheriff, 166 Wn. App. 789 (2012) What part of 5 days did you not understand? Requester makes multiple PR requests including 2 yrs of emails from employee DNR does not respond within 5 days Responds on day 11 by producing records Failure to respond is a per se violation “The PRA could not be clearer on the requirements imposed upon agencies following a request.” West v. DNR, 163 Wn. App. 235 (2011) When can we give up looking? Employees 2006 e-mail is on backup tape. Backup tape is obsolete storage technology. DNR spent time and $ trying to retrieve those emails from the backup tapes. “DNR diligently pursued retrieval of the records.” The e-mails were “irretrievable.” E-mails lost 1 yr. before West’s PRA request. Thus, records sought by Mr. West did not exist. West v. DNR, 163 Wn. App. 235 (2011) The case of the smoking record… Alliance had information of a possible nepotism hire in county planning dept. Received copy of a seating chart from anonymous source placing nepotism hires in seats before jobs were posted When jobs were filled with people whose first names corresponded to seating chart, Alliance requested copies of seating chart. County produced a seating chart that matched the anonymous one but had no date Alliance requested records showing the date that the seating chart was created Neighborhood Alliance v. Spokane County, 172 Wn.2d 702 (2011) The case of the smoking record… Employee who created seating chart assigned new computer and document creation date was changed when hard drive was copied Old computer was never searched and eventually assigned to another employee Three issues raised: How is discovery conducted in PRA cases? How much searching must be conducted by the agency for records under the PRA? Can a requester sue under the PRA when they already have the record from another source? Neighborhood Alliance v. Spokane County, 172 Wn.2d 702 (2011) The case of the smoking record… How is discovery conducted? Same as in any other civil case (rejecting the limited discovery rules in the FOIA) How much searching is required? Agency must conduct a “reasonable search” (following the standards in the FOIA) Can a requester sue even if they have the record? Yes (Reversing a prior decision) Neighborhood Alliance v. Spokane County, 172 Wn.2d 702 (2011) Back to Sisyphus Requester can request the same record over and over again and it must be produced (absent an injunction) Pre-trial discovery can increase attorney’s fees even if document is produced during the litigation County must search in all locations where a record is “reasonably likely to be found”. County should track and list every location searched Does the punishment fit the crime? The penalty imposed for non-compliance should be proportionate to the misconduct Courts may group documents and/or requests together in the same penalty A high volume of requests by the same requester may justify a delay in fulfilling a request There is no presumption that the court start at the mid-point of the penalty range in fixing the penalty Zink v. City of Mesa, 162 Wn. App. 688 (2011) When is a record really a public record? Requester seeks invoices for outside attorney who defended county in employment lawsuit County paid invoices up to deductable Remaining invoices submitted to and paid by the WCRP (risk pool) County did not see or manage bills of outside counsel County produced invoices that it paid West v. Thurston County, 168 Wn. App. 162 (2012) When is a record really a public record? Public Record defined (RCW 42.56.010(2) A Writing Containing information relating to the conduct of government or the performance of any governmental or proprietary function that is… Prepared, owned, used or retained by any state or local agency West v. Thurston County, 168 Wn. App. 162 (2012) P.O.U.R. Prepared – Only a public agency can prepare a public record Owned – To be owned, an agency must posses the record as its property Used – Only if a nexus between the document and the agency’s decision making process Retained – Document is not retained if it was never possessed by the agency West v. Thurston County, 168 Wn. App. 162 (2012) Pierce County Litigation Requester asked for personal cell phone records of the Prosecuting Attorney Prosecutor does not seek reimbursement from the country for his cell phone First request was work related calls only Work related calls were provided Second request was for all calls on a specific date (not just work related) Prosecutor voluntarily provided records but county redacted personal calls P.O.U.R. Test Not prepared by Pierce County Owned by the cell phone company or by the customer as an individual (not in his role as a public official Not used by the county because no reimbursement is requested Not retained by the county again because no reimbursement is requested Questions?