By Tim Connor

Provided it doesn’t get hit by a bus or a lobbyist, the Washington Public Records Act (PRA) will be forty years old next year. But even it does make it to forty, it’s hard to know how many teeth it will have left.

This year, lobbyists representing the state’s municipalities, counties, school boards and agencies, seem to be making an especially vigorous effort to re-tool the law to make it less punitive and less expensive to administer. Leading the way is the Association of Washington Cities (AWC) which has made revamping the PRA one of its legislative priorities for the 2011 session.

“Some of the 21 bills [dealing with public records] being considered in the Legislature would make major changes to the act,” the Tri-City Herald reported in late February, “such as adding the ability for public agencies to charge requesters for staff time to answer questions, requiring an attempt at addressing issues before a lawsuit can be filed, starting a pilot appeal program and limits on requests made by inmates.”

Perhaps the most ominous threat to the law is HB 1899, a bill that was passed out of the House on March 1st. HB 1899 takes aim at the PRA’s penalty provision which, as currently interpreted by the state Supreme Court, requires at least a minimum penalty be assessed to agencies who are found to have violated the law.

At least in principle, the penalty provision is supposed to be a meaningful deterrent to agency misconduct.

“[W]hen an agency erroneously denies a public record and a party has prevailed against the agency in obtaining a copy of the public record,” the state supreme court concluded in a 1997 case, Amren v. City of Kalama, “an award is warranted. This is consistent with the Act’s strong policy favoring ‘strict enforcement’ of the award provision to discourage improper denial of public records.”

Yet, HB 1899 would simply remove the requirement that an agency be penalized if it is found to have violated the PRA.

Toby Nixon

That open government advocates are having to play defense in Olympia is hardly news to Toby Nixon, a former Republican state legislator who is now the President of the Washington Coalition for Open Government (WCOG), an organization that is as old as the public records law itself.

“It’s very much an uphill fight,” says Nixon, who now works days as a program manager for Microsoft and, especially when the legislature is in session, well into the night on open government issues. “The agencies pick away at it [the public records law] every year.”

This session, Nixon and WCOG started out tracking more than seventy bills that have open government ramifications. As of late last week, he said, 33 are still alive.

What’s unusual about HB 1899 is that it didn’t start out to be an undiluted gift to state agencies. When it was introduced—with bipartisan support—the bill would have given trial court judges the discretion to award zero penalties if they chose. But it also would have allowed judges to assess up to $500 per day in penalties in cases where agencies are found to have acted in bad faith–a considerable leap from the current limit of $100 per day.

This version of the bill—removing the minimum penalty, but allowing judges to levy up to $500 per day penalties on the high end—is actually the version of HB 1899 that Roland Thompson thought he was testifying in favor of when he arrived at the House Committee on State Government and Tribal Affairs on February 16th.

Thompson is the Olympia-based lobbyist for Allied Newspapers of Washington which, understandably, advocates for more open government, not less, and opposes bills that would make it easier to close meetings and deny journalists access to public records.  Thompson and the ANW, like Nixon and WCOG, thinks the decades-old, $100 per day cap on punitive awards is too low to discourage the worst kinds of agency misconduct.

“I don’t have problem with zero,” Thompson says, “but I wanted the top end [the $100 a day cap] to come up.”

In his discussions with legislators working on the bill, Thompson insists it was well understood that there was a quid pro quo at work, that his organization would accept the reduction to zero on the low end of the penalties, in exchange for raising the daily cap to $500.

What the newspaper association’s lobbyist didn’t know, however, is that earlier in the session, before the bill was voted on, it had been amended. The person who made the motion to amend it was one of the bill’s sponsor’s, Rep. Mark Miloscia, a Democrat from Federal Way. The amendment was to eliminate the language in the bill that would have set the upper penalty at $500 a day.

A funny thing happened on the way to this compromise, however.

When the State Government & Tribal Affairs Committee met at 8 a.m. on the 16th, HB 1899 was one of 13 bills on the Committee’s plate. Thompson planned to testify on the bill, and did. But by the time arrived at the hearing, the Committee had already passed the bill out of Committee and moved into executive session. You can view the whole committee meeting (except for the executive session, here.)

As the executive session ended, the Committee’s chairman, Democrat Sam Hunt from Thurston County, appeared confused. After a long pause in which he conferred with a staff person, Hunt apologetically announced: “House bill 1899 has not had a hearing, so if somebody wants to testify on 1899, you will get the option to do it in a backwards fashion, after we voted the bill out of committee and if one convinces us, we can always reconsider and re-vote on it. Sorry about that.”

When Thompson finally got to testify, he spoke for only a few minutes and gave his  endorsement to what he thought was in the bill.

“What you have in [HB] 1899,” he told the Committee, “is a problem where a hundred thousand dollars a day may not be enough in some situations, and five dollars a day is too much.” He elaborated that in the case of some multi-million dollar public works projects, denying access to key records before a key vote on the project should be punishable with greater than $100 a day penalties. But he also allowed that there might be situations where “you might have a very small organization like a cemetery district or a very small port district, where might have a troublesome or abusive requester who’s hanging them on a technicality when they take them to court.”

“This is a step in the right direction,” he concluded, “and we thank you for that.”

What Thompson didn’t know, however, is that earlier in the session, before the bill was voted on, it had been amended. The person who made the motion to amend it was one of the bill’s sponsor’s, Rep. Mark Miloscia, a Democrat from Federal Way. The amendment was to eliminate the language in the bill that would have set the upper penalty at $500 a day.

“Mister Chair,” Rep. Miloscia explained, “this [the amendment] just corrects the language of the bill, inadvertent mistake, (sic) we do not intend to increase the overall penalty to five hundred dollars. This reduces it back down to what is currently in the state law for the upper limit.”

Thompson had no idea when he testified that Miloscia had made the amendment. He was clearly taken aback when told that Miloscia had explained that the $500 figure in the original bill was there on account of an “inadvertent mistake.”

“That’s really odd,” Thompson said about Miloscia’s explanation. “He knew I wanted five hundred dollars.”

Indeed, Thompson said, in early discussions about the bill, some Republican legislators were open to raising the maximum penalty to $1,000 a day.

When told about Rep. Miloscia’s ‘inadvertent mistake’ explanation, Toby Nixon replied: “I don’t believe it for a second.”

“What happened,” Nixon continued, “is that the lobbyists for the agencies came down on him [Miloscia] like a ton of bricks” when they found out the bill had the five hundred dollars per day penalty in it.

(Rep. Miloscia did not return repeated phone calls requesting comment on the change in the bill.)

Nixon sees a striking similarity in the way HB 1899 got bent up by the House State Government and Tribal Affairs Committee this year, to what happened six years ago. At the time, Nixon was the Ranking Republican on what was then the House State Government Operations and Accountability Committee. The compromise, in 2005, was to shorten the statute of limitations (limiting the time in which a public records requester could bring a lawsuit against an agency) in exchange for raising the upper daily penalty to $500.

“So we thought we had a deal to increase the penalty and decrease the statute of limitations,” Nixon says. “It passed out of committee and went to the leadership but the next thing you know the AWC and other lobbyists for the agencies went to the leadership. So they [the leadership] deleted it [the higher penalty] by amendment and kept the shorter statute of limitations.”

Only this time around, the lobbyists got to HB 1899 before it even got out of committee. Once again, the $500 a day penalty was knocked out, but the change favorable to the agencies—reducing the minimum daily penalty to nothing—was preserved.

Just before I interviewed Nixon last Friday (March 4th) he’d sent out a strongly-worded email to the Senate Government Operations, Tribal Relations & Elections Committee (where the bill is headed next), strongly opposing HB 1899. In the email, he recounted what happened in 2005.

“Municipal organizations such as AWC, WSAC [Washington State Association of Counties] and WSSDA [Washington State School Directors Association] convinced the legislature to eliminate the penalty increase while keeping the decrease in the statute of limitations, with the result that the final adopted bill reduced possible PRA penalties by 80%,” he wrote. “Penalties do not need to be reduced even further!”

With the existing $100 a day limit, Nixon says, “the problem is that it just becomes a cost of doing business rather than the deterrent that it was intended to be. It really needs to be twenty-five hundred dollars a day when you consider the one year statute of limitation.”

Spokane attorney and former Center for Justice lawyer Breean Beggs has been involved in numerous public records cases, including the Neighborhood Alliance v. Spokane County case that is currently before the Washington Supreme Court. He sees a note of absurdity in the move to knock out the $5 a day minimum, inasmuch as the cost to an agency between paying $5 a day and nothing is trivial, especially given the other costs of public records litigation.

On the other hand, he said, there is at least some potent symbolism for plaintiffs when the courts award even $5 a day penalties in cases where agencies are found to have violated the law.

“Based on my experience both directing litigating public records cases and watching what happens in other cases, even though five dollars a day is not a lot of money, it is concrete evidence for the plaintiff that the government has engaged in misconduct,” Beggs says. “That’s important because usually the government entity has its own public relations machine to make its case, so when a citizen gets an award from a court, even if it’s a small award, it’s an important statement. And it discourages misconduct. There really is a difference between having to write a check and not writing a check, even if it’s a small check.”

The other irony Beggs notes, is that when penalty judgments are appealed, it’s almost always the plaintiffs that are appealing meager judgments, arguing that the trial court abused its discretion.

“One of the highest awards I can think of is the Yousoufian case,” Beggs said, referring to the epic case of Seattle businessman Armen Yousoufian. In that case, the trial court judge found that King County had not acted in good faith in responding to his public records request on the Qwest Field project.

“Even in that case,” Beggs said, “the forty-five dollar per day penalty is less than half what the maximum penalty is. So the evidence is that, if anything, the penalties being handed out in the courts are too low, not too high.”

–CFJ

Neighborhood Alliance v. Spokane County is already one of the wildest public records fights in state history. The Supreme Court’s decision in the case may resolve one of the primal open government questions that agencies face: is it more cost-effective to divulge embarrassing public records, or destroy them?

By Tim Connor

In February of 2005, someone in Spokane County’s Building and Planning Department made a simple mistake.

He or she left a piece of paper on the lens of a photocopier where it was found by another county employee. Although it looked to be an innocuous departmental seating chart on its face, there was something curious about it. In the middle of the schematic there was a rectangle indicating a cubicle, in which were typed two names: “Ron & Steve.”

To the county employee who found the chart in the copier, it posed an interesting question: who the heck are Ron and Steve? In the fullness of time, the identities of the two men would become apparent, if not perfectly clear. One was Ron Hand, a former county employee who was being re-hired. The other was Stephen Harris, the son of Phil Harris  the then-chairman of the Board of County Commissioners. Stephen Harris was the third of Harris’s sons hired by the county. All had been hired after their father had been elected.

Breean Beggs and Bonnie Mager on the steps of the state Supreme Court, January 27, 2011

There was also this troubling fact: the seating chart was found in the copier two weeks before the job Stephen Harris filled would even be advertised.

As scandals go, this one wasn’t all that complicated. Notwithstanding the denials from the commissioner and the county, the appearance was that a powerful county official had used his influence to put a third son on the county’s payroll. Moreover, the hiring process appeared to be a cynical joke–a gesture merely to provide legal cover for nepotism.

The publicity over the charges likely made the difference in Phil Harris losing his seat, later that year, to challenger Bonnie Mager. But before Mager announced her decision to run, she had filed a public records request. On behalf of the Neighborhood Alliance of Spokane County, the organization she led at the time, Mager sought documents that she and the Alliance hoped would bring to light the key facts about how and when the decision to hire Stephen Harris had been made. What began nearly six years ago as a pretty simple public records request has evolved into an important legal case. At its core is the raw question of whether the state’s public records act (PRA) can be successfully manipulated to reward agencies who choose to destroy embarrassing public records, rather than turn them over.

Washington’s Public Records Act was written to discourage bad faith, even extraordinary bad faith on the part of agencies. But what happens when an agency goes rogue, and destroys requested records? What do you do then?

The person who’d created the seating chart that was inadvertently left in the Building and Planning Department’s photocopier was Assistant Planning Director Pam Knutsen. And it was Knutsen who took the lead in defending Harris’s hiring, insisting to a Spokesman-Review reporter in April 2005 that the decision to hire Harris (who’d last worked in a California business involving batteries) had nothing to do with him being the commissioner’s son.

Mager and the Neighborhood Alliance didn’t buy that explanation for a second. Under Phil Harris’s leadership, Spokane County had become increasingly contemptuous of state land use laws. That put the county on a collision course with Mager and the community organizations who sought the Alliance’s help in fighting sprawling developments outside urban growth areas. One way the Alliance responded was in becoming more vigilant toward the Building and Planning Department’s activities. When the seating chart was found in the department’s copier, it quickly found its way via a whistleblower to the Alliance.

After the Alliance obtained the seating chart, Mager crafted a brief public records request. On May 16, 2005, she asked for a copy of the seating chart with the corresponding computer data that would precisely show when the chart was first created. She also asked for any documents that would fully identify (with last names) the “Ron & Steve” listed near the middle of the chart.

The county’s refusal to produce the records fueled public allegations that the county was engaged both in nepotism and in a full-bore cover-up. The county, in turn, demanded an apology and even threatened to bring a countersuit against the Alliance it if filed a “frivolous” public records suit.

For his part, Commissioner Harris insisted he and the county were “clean as a hound’s tooth” in terms of their compliance with the public records act (PRA).

In the fall of 2005, Mager left the Alliance to successfully challenge Harris for his seat on the county commission. The circumstances under which Harris’s son had been hired by the Building and Planning Department was one of the key issues in the campaign.

As scandals go, the hiring of Stephen Harris wasn’t all that complicated. Notwithstanding the denials from the commissioner and the county, the appearance was that a powerful county official had used his influence to put a third son on the county’s payroll. Moreover, the hiring process appeared to be a cynical joke–a gesture merely to provide legal cover for nepotism.

The Center for Justice filed suit on behalf of the Alliance in May 2006. Because the case involved allegations of wrongdoing against Spokane County officials, it was  eventually assigned to a Lincoln County judge, Philip W. Borst. Borst dismissed the lawsuit in May 2008.

“Maybe they [the county] shouldn’t have destroyed that computer,” Judge Borst said, referring to a computer hard drive that was “wiped” after the Alliance had filed its records request. “But they do that all the time.”
The computer Judge Borst referenced belonged to Pam Knutsen. The argument  that CFJ attorney Breean Beggs had advanced was that Knutsen’s hard drive had been deliberately “wiped” to illegally destroy records the Alliance had requested.

“I’m not saying you’re not right,” Judge Borst told Beggs. “You could be right, but from my standpoint the facts aren’t there to back it up.”

The Center appealed the case on the Alliances’s behalf, arguing among other things that the essential fact-finding in the case was stymied by the county’s refusal to make Knutsen available for a live deposition.

As a result of the now infamous hard drive “wipe,” there is no record to which the daily penalties called for under the law can attach. Without a record available to be produced, the penalty clause of the public records act is an awkward tool at best. It’s like having to rely on a Phillips screwdriver when what you really need is a very large mallet.

At the time a Division III Court of Appeals panel weighed in on the case in August 2009, it handed the Neighborhood Alliance an important partial victory. Specifically, the Division III panel found the county had broken the law and was liable for civil penalties. Simply put, the panel found that the county failed to look in the only place where the requested records could be expected to be found—the hard drive that was in Pam Knutsen’s computer at the time she created the seating chart with “Ron & Steve” typed in it.

However, the appeals court upheld Judge Borst on rulings that not only favored the county on two important issues, but seemed to undermine recent Supreme Court decisions that had clarified and strengthened the law.

First, the panel ruled that the county could not be found liable for failing to produce records identifying the “Ron & Steve” on the seating chart.

Secondly, the Court of Appeals panel upheld Judge Borst’s ruling to deny a motion to compel discovery in the case, on the grounds that the requested discovery by the Alliance was “overreaching.”

These parts of the appeals court’s ruling appeared to be squarely at odds with how a unanimous state Supreme Court had ruled in a 2004 case stemming from Camas Magazine’s investigation of Spokane’s River Park Square scandal. In that case (in which I was the plaintiff) the Supreme Court ruled that the state’s “normal civil procedures” applied to discovery in open records cases. The court also ruled that it was not necessary for a plaintiff in a records action to have forced the release of illegally withheld records in order for the agency to be held liable for withholding the records.

Although thorny legal developments like this routinely get buried in press coverage because they are hard for most journalists to understand and explain, they are riveting issues in the trenches of the fight for open government. This is why Allied Daily Newspapers of Washington, the Washington Newspaper Publisher’s Association, the Seattle Times, Tacoma News Tribune and the Tri-City Herald filed a joint amicus brief in the Neighborhood Alliance case on behalf of the Alliance.

There is one other thing. Not to put too fine a point on it, but the Court of Appeals panel’s ruling on the issue at the heart of the Neighborhood Alliance case—as to whether the county should be found liable for not producing records fully identifying “Ron & Steve”—is almost breathtakingly bizarre.

As Breean Beggs reiterated in his argument to the Supreme Court last Thursday, the Alliance had very deliberately asked the county to produce records that would fully identify the “Ron & Steve,” on the county seating chart. From the start, the county insisted that the request for these records was a request for an “explanation” of the seating chart.

It’s a distinction that matters. In fact, it matters a lot. Under the PRA, an agency only has to produce requested records. As Chief Justice Barbara Madsen reminded Beggs at oral arguments last week, an agency like Spokane County has no legal duty to explain a record, or answer questions about. It’s only obligation is to provider responsive records. (This may, to some, seem a peculiar distinction because agencies often volunteer to answer such basic questions in response to public records requests, even though they don’t have to. In this case, and for obvious reasons, the county chose not to confirm that “Steve” was Stephen Harris, because to do so would have been to squarely acknowledge the corruption that Mager, the Alliance, and others alleged.)

“Maybe they shouldn’t have destroyed that computer,” Judge Borst said from the bench in his Davenport, Washington, courtroom. “But they do that all the time.”

In frustration with the county’s refusal to turn over the requested records, CFJ attorneys offered examples of the kinds of records that “may” be responsive to the request. The examples were emails (obtained from a November 2005 request) that included the names of Stephen Harris and others in the Building and Planning Department.
The purpose for offering the emails as examples was simply to give the court a feel for the kind of records the county could have turned over in response to the 5/16/05 request, had the county chosen to cooperate instead of stonewall.

The Court of Appeals panel did not, however, accept the emails as evidence that responsive documents existed in county files. Rather, in a move that stunned the Alliance and its lawyers, the panel construed the emails as evidence that the Alliance had actually been provided responsive records before it filed suit against the county. Thus, the Court of Appeals panel reasoned, the Alliance could not be a prevailing party under the public records act for that part of its May 16, 2005 request.

It was a head-spinning line of reasoning. In effect, what the appeals court panel was saying is that the county had provided responsive records to the 5/16/05 request even though: (a) the county actually didn’t provide them in response to the 5/16/05 request, (b) the county never indicated that the emails were responsive to the 5/16/05 request, and (c) the Alliance was in no position to know if the records were actually responsive.

Not to put too fine a point on it, but the Court of Appeals panel’s ruling on the issue at the heart of the Neighborhood Alliance case—as to whether the county should be found liable for not producing records fully identifying “Ron & Steve”—is almost breathtakingly bizarre.

Chief Justice Barbara Madsen during the 1/27/11 oral arguments.

Beggs tried to make light of this strange situation at last week’s hearing. (To watch the video of the 1/27/11 oral arguments in the case, click here.)  First he had to take on the Chief Justice’s question by pointing out that the Alliance’s request was clearly for records, not for an explanation. Then he insisted that because the county never even pretended to provide documents identifying “Ron & Steve” (or anyone else) shown on Knutsen’s seating chart, Spokane County still has not provided the records sought by Mager’s 5/16/05 records request.

As to the second issue that the county prevailed upon, regarding the limitation on discovery, both Beggs for the Alliance and Michele Earl-Hubbard and Chris Roselaniec for the amici, assert that the appeals court ruling is flawed because it relies too heavily on case law from the federal Freedom of Information Act (FOIA).

Unlike FOIA, the Washington PRA has a penalty provision. Over the past decade, the Washington Supreme Court has reiterated that penalties are mandatory when violations occur. Moreover, the Supreme Court has painstakingly elaborated on how the assessment of penalties should be adjusted to the factual evidence of wrong-doing by agencies in individual cases.  Under the Washington PRA, agencies can be fined between $5 and $100 a day for wrongly withholding records, and the Supreme Court has laid out specific factors for trial courts to use in assessing what the daily penalties should be.

In the Neighborhood Alliance case, you don’t have to look very far to see the tension over discovery. The issue goes precisely to what Judge Borst said in May 2008 when he wondered, aloud, whether the county purposely “destroyed” Pam Knutsen’s computer so it couldn’t be searched. Yet, it’s also clear that Judge Borst didn’t allow the fact-finding necessary to answer that question when it was before him.

An interesting dilemma in the Neighborhood Alliance case is that it may not be resolvable where the Appeals Court left it. If the county is (as the appeals court ruled) liable for not conducting an adequate search for records on Pam Knutsen’s computer, it begs the question of how a court can assess the penalties that the county would owe to the Alliance if, as the Appeals Court found, the county violated the Public Records Act by not checking Knutsen’s hard drive before it was “wiped.” Specifically, the question is how can you assess penalties unless you can conduct sufficient discovery to determine whether the inadequate search was negligent, or purposeful, or something in between. And, yet, another part of the Appeals Court’s ruling was to reject the Alliance’s motion to compel discovery in the case.

Neighborhood Alliance v. Spokane County tests whether the state’s public records law can be used to expose embedded government corruption. It will also help answer another rather interesting question: how much is Spokane County on the hook for?

If things weren’t complicated enough, the Neighborhood Alliance case presents the court and possibly the state legislature with an even bigger dilemma.

It’s this: The PRA was written to discourage bad faith, even extraordinary bad faith on the part of agencies. But what happens when an agency goes rogue, and destroys requested records? What do you do then?

What Judge Borst overlooked in the Neighborhood Alliance case is that Spokane County never even attempted to search Pam Knutsen’s computer hard drive before “wiping” it. This is why the Court of Appeals reversed him and by finding that the county violated the PRA by failing to conduct an adequate search.

Yet, as a result of the hard drive “wipe,” there is no record to which the daily penalties called for under the law can attach. Without a record available to be produced, the penalty clause of the PRA is an awkward tool at best. It’s like having to rely on a Phillips screwdriver when what you really need is a very large mallet.

Spokane attorney Breean Beggs

Chief Justice Madsen seized on this point in her questioning of Breean Beggs. Beggs had argued that because the county broke the law by failing to even examine the hard drive in Pam Knutsen’s computer before “wiping” it, the Neighborhood Alliance is entitled to daily penalties.

Justice Madsen disagreed: “By being dragged into court,” she told Beggs, “you get your attorney fees and costs under the statute, but you don’t get the penalties.”

What Justice Madsen was clearly suggesting is that even though the county erased the hard drive, the bottom line is that no responsive record was ever found or produced. Thus, she implied, this effectively shifted the burden of proof not to the county, but to the Neighborhood Alliance.

“It does seem to me,” she said, “that at the end of the day it might be that there were no records and then you’re assessing daily penalties when there were no records that would have been responsive.”

Beggs replied that he might agree with Justice Madsen if the county had erased or destroyed the hard drive before Mager’s records request. But, he continued, the evidence indicates that the hard drive hadn’t been erased when Mager filed the request in May 2005 and that, under the PRA’s penalty provisions, the burden is on the county to show it conducted an adequate search.

“By being dragged into court,” Chief Justice Madsen told Breean Beggs, “you get your attorney fees and costs under the statute, but you don’t get the penalties.”

The surprise in the oral arguments came right at the end of Pat Riskin’s time, when the Chief Justice tried to get Riskin (the Spokane attorney hired to defend Spokane County) to support the no-penalty proposition she voiced while questioning Beggs.

In answering a question from Justice James Johnson about how he would argue the issue of penalties before a trial court, Riskin indicated he would argue that the wiping of the computer drive was due more to negligence or confusion than to bad faith. Riskin then added he would also argue that the last day penalties could be assessed would be August 8, 2005, which is when the county re-assigned the “wiped” hard drive to another employee’s computer.

That seemed to catch the Chief Justice off guard.

“Are you agreeing that daily penalties apply under the circumstances here, where no records have been found to have been denied and (sic) be responsive?” she asked.

“Not to this date,” Riskin replied.

Given another chance at the question, Riskin indicated he would have an argument against daily penalties for the trial court. (The assignment of PRA penalties is typically remanded back to the trial court in such cases.)

But his answer still left Justice Madsen perplexed.

Justice Madsen: “Well I thought the opposing party was arguing that we should find that there is a stand-alone provision [in the PRA] that if you, or whether or not you ever have documents that can be or should have been disclosed, that there are daily penalties for failing to do an adequate search.”

Pat Riskin: “Right.”

Justice Madsen: “And you’re not opposing that position?”

Pat Riskin:  “Well, I oppose that position if the daily penalties continue to run all the way through this judicial process that we’re involved in now, while Spokane County protects itself, or tries to present its side of the case. That penalty works as a punishment against Spokane County at that point, just for pursuing an appeal. That’s what I have great concern with.”

Justice Debra Stephens then interjected.

“You would cut off the penalty at the moment the county conducts a reasonable search?” she asked Riskin. “Assuming the search were determined to be unreasonable, that you’re saying at the point of time of a reasonable search is conducted and there are no documents, that cuts off the penalty?”

Pat Riskin: “That could, yes. Like I said before, that would be the outside (sic), the way I look at it today.”

This debate is hardly arcane and inconsequential. As even Judge Borst allowed, there are valid reasons to believe that, in this case, Spokane County deliberately destroyed evidence to avoid the political and legal consequences.

If it had simply withheld records, instead of destroying them, then the penalty clock would still be running. It has been approximately 2,000 days since the county first replied to Mager’s request. This means the penalty could be as high as $200,000–still not a huge sum of money given the stakes involved, but a plausible deterrent nonetheless.

But if Riskin is right—that the penalty clock should stop no later than August 2005 —then the penalties are peanuts—probably less than $10,000, at most.

To be sure, there is a genuine conundrum. It does seem reasonable to assess daily penalties on an agency for each day it refuses to conduct a “reasonable search” for a requested record. But the logic behind Riskin’s argument is that once an agency destroys a record, the clock should stop. After all, the agency can’t conduct a reasonable search for a record that no longer exists.

What’s unspoken here is that the reason the document ceased to exist is because the county destroyed it. Thus, if Riskin’s logic prevails, the message would be that the sooner an agency destroys an embarrassing record, the less exposed it will be to penalties under the PRA.

Of course, even in Riskin’s scenario (assuming the county is liable) the county would pay at least some penalties. The way Chief Justice Madsen apparently views it, the county would pay no penalties at all.

—CFJ

In a major victory for open records advocates, the Washington Supreme Court has ruled 5-4 that the so-called metadata created with and during email transfers is subject to disclosure under the state’s public records act (PRA).

“Metadata may contain information that  relates to the conduct of government and is important for the public to know,” wrote Justice Susan Owens for the court majority. “It could conceivably include information about whether a document was altered, what time a document was created, or who sent a document to whom.”

Metadata is “data about data,” and includes hidden information about electronic documents that is automatically created by software programs. Specifically with regard to emails, it would include information about senders, recipients, internet protocol addresses, time and dates of transmission, and how information is created, modified, tracked and managed. Relying, in some part, on an Arizona state Supreme Court case, the Washington court majority found that under the terms of Washington’s “liberally construed” public records law, metadata qualifies as a public record if the record (i.e. an email) that caused it to be created is also a public record subject to disclosure under the state PRA.

Today’s ruling came in the case of O’Neill v. the City of Shoreline, a complicated story that began when Shoreline resident Beth O’Neill heard her name mentioned by Shoreline Deputy Mayor Maggie Fimia. Fimia was reporting to the Shoreline city council that she’d received a copy of an email in which O’Neill and another Shoreline resident had accused the council of improper conduct.

This was news to O’Neill who hadn’t sent the email but who was now very interested in seeing it and learning who’d sent it when and to whom. It turned out that the email had originally been sent to a private citizen who’d forwarded the email to Fimia’s personal email where Fimia opened it on her home computer. Fimia then reconfigured the email to withhold the name of the original sender, and forwarded it to city staff.

Although the City of Shoreline did turn over the re-sent email and all the metadata associated with that email, O’Neill pursued the original email, and the metadata associated with it. According to Fimia, though, the Deputy Mayor inadvertently deleted the original email from her email program, and thus could not retrieve the metadata attached and generated by the original email.

The Supreme Court majority upheld a Court of Appeals decision that O’Neill is entitled to the metadata associated with the first email and that the City of Shoreline was responsible for searching the hard drive of Deputy Mayor Fimia’s home computer to locate the email and its metadata. But Shoreline has never conducted such a search.

It was this finding that drew a sharp dissent from four Supreme Court justices today, who argued that a search of the hard drive of Deputy Mayor Fimia’s home computer would violate her privacy.

“Because a public employee, including an elected official like Fimia, would be well within his or her rights to refuse an inspection or a search by the employer of his or her home computer,” wrote Justice Gerry Alexander, in dissent, “the employee’s privacy right trumps any direction to the public employer to examine the hard drive of the employee’s home computer.”

The majority, however, addressed that argument by saying the “inspection is appropriate only because Fimia used her personal computer for city business. If government employees could circumvent the PRA by using their home computers for government business, the PRA could be drastically undermined.”

Ironically, today’s ruling could turn out to be a much larger victory for open government advocates than for Beth O’Neill. As part of its ruling today, the Supreme Court reversed the Appeals Court ruling finding that O’Neill has already “partially prevailed” in her public records act suit, and thus should be awarded attorney fees.

The Supreme Court’s reasoning is that the case isn’t over, that the City of Shoreline still has an opportunity to seek to inspect Deputy Mayor Fimia’s hard drive, and only if and when it does this can the courts determine whether or not the PRA has been violated. In other words, it has yet to be determined whether a public record exists on Fimia’s computer that O’Neill doesn’t yet have, but which she’s entitled to.

“(T)he Court of Appeals did not find that the City violated the PRA,” Justice Owens wrote for the majority. “It merely stated that metadata is subject to the PRA and remanded for the trial court to determine whether the PRA was violated.”

Thus, while the metadata issue was clearly resolved, the fate of O’Neil’s case against the City of Shoreline is still yet to be determined and can only be decided in her favor if the City of Shoreline refuses to inspect Fimia’s computer, or if they do inspect it and find metadata that was withheld from O’Neil. Only then could O’Neil recover attorney fees and penalties. Here it is noteworthy that, in a footnote to the majority’s decision today, the court notes that it did not decide “whether the City may inspect Fimia’s home computer, absent her consent.”

The Supreme Court’s decision, today, sends the case back to the trial court to determine whether the PRA was actually violated and, if so, what the penalties and attorney’s fees will be.

–CFJ

Washington Supreme Court Justice Richard B. Sanders is perhaps best known, nationally, for interrupting a speech by then-Attorney General Michael Mukasey two years ago at the Federalist Society and calling Mukasey a “tyrant.” Inasmuch as the outburst was motivated by Sanders’s opposition to the Bush Justice Department’s acquiescence to torture, Sanders became a hero for some and a target for others.

Closer to home, Sanders has been a reliable champion on the state’s highest court for the cause of open government in general and access to public records in particular. And that’s what made Thursday so interesting in Olympia, because the court was rendering a verdict in an important public records brought by Justice Sanders himself.

Justice Richard Sanders

The case arose from a controversial visit the justice made to a state “Special Commitment Center” on McNeil Island in 2003. Because some of the inmates Sanders had discussions with during his visit had pending cases before the court, Sanders was accused with violating the state’s code of judicial conduct, an accusation that led to his being admonished by the state’s Commission on Judicial Conduct.

While fighting the accusations, Sanders filed public records requests with the state Attorney General’s office (AGO) in 2004 and in July 2005 he filed suit in Thurston County Superior Court alleging that the AGO had failed to comply with the state’s public records act (PRA) because it withheld records that were not exempt from disclosure and, further, that the AGO did not comply with a section of the PRA that says agencies must not only cite the exemption being invoked to withhold a public record, but offer at least some explanation as to why the exemption applies to the specific documents being withheld.

From this starting point, Justice Sanders’s legal beef with AGO over the records migrated into several other issues involving how public records act violations are determined, and how they are sanctioned by the courts. Those issues found their way to the state Supreme Court (absent Justice Sanders, of course) last winter.

The unanimous ruling in the case came Thursday in an opinion authored by Justice Debra L. Stephens.

In short, the good news for Justice Sanders and open public records advocates is the court’s unequivocal finding that agencies have a duty, under the act, to provide some explanation for how exemptions it claims as the basis for withholding specific records, applies to the records being withheld. The court also found 4 additional documents (which it treats as one record) that the AGO wrongfully withheld.

Most of Thursday’s ruling, however, is adverse to arguments that Justice Sanders made on appeal from the trial court in Thurston. The arguments cover everything from how courts should view agency non-compliance with certain provisions of the act, how violations should be penalized, and how attorney fees and costs should be awarded to prevailing parties, especially when the party litigation an appeal is only partly successful. You can read the opinion here.

Thurston County Superior Court Judge Richard Hicks has ruled that Washington can release signed petitions for most ballot initiatives. According to Northwest Public Radio and other sources, Hicks’s ruling came September 3rd but it does not affect the ongoing, high-profile dispute over whether the names of those who signed petitions to put Referendum 71 on last fall’s statewide ballot.

Referendum 71 was advanced by Protect Marriage Washington, an organization that is opposed to the so-called “everything but marriage” law that expanded rights for gay couples in Washington state. It became law in May 2009. Although Protect Marriage Washington and others who opposed the law succeeded in getting Referendum 71 on the ballot, the referendum simply served as a vehicle for Washington voters to confirm–by 53 to 47 percent–their support for the law the legislature had passed.

One of the offshoots of the battle over the law has been the effort by those who oppose restrictions on marriage to learn and publicize the names of those who signed the petitions to put R-71 on the ballot. The Secretary of State’s office has sought to release the names in response to requests filed under the state open public records law. But those behind the referendum campaign fought the release of the names in federal, alleging it would violate constitutional rights to privacy.

The U.S. Supreme Court rejected that argument in June. But the release of the names is now being restrained by an order of U.S. District Court Judge Benjamin Settle, who is now hearing arguments over whether the release of the names would endanger those who signed the petition supporting putting the referendum on the ballot.

Open government advocates have filed records requests for names on petitions related to at least eight other ballot measures, and it is the release of those names that Judge Hicks unloosed Friday.