Chronic Requesters and Problem Requests: How to Cope with the Real World of the Public Records Act Jeffrey S. Myers Law, Lyman, Daniel, Kamerrer & Bogdanovich P.O. Box 11880 Olympia, WA 98502 (360) 754-3480 E-mail: [email protected] March 21, 2013 Types of Chronic Requesters 1. Watchdogs • Overcoming Paranoia and suspicion of government – Usually focused on specific issue, incident or controversy – Want to see everything Frequent Fliers - Watchdogs • • • • • Arthur West Anne Block Ira Appelman Mike Belenski David Koenig • Every community has at least one… Types of Chronic Requesters 2. Media requests • Similar to Watchdogs • Sensitivity to Deadlines – Not have to wait 5 days to respond. – More willing to focus request • Resources to litigate substantial noncompliance • Ongoing relationship needed on both sides Types of Chronic Requesters 3. Employee Requests – Issues affecting themselves – Issues affecting co-workers – Distinguish Public Records Requests from requests for own personnel records. RCW – Distinguish from requests in grievance process. Germeau v. Mason County, 166 Wn.App. 789 (2012) – Watch out for CBA issues and retaliation claims! Types of Chronic Requesters 4. Prisoner / Inmate Requests • RCW 42.56.565 Provisions – Must respond in good faith – Diminished liability for penalties – Injunction allowed for threatening requests Types of Chronic Requesters • The Vindictive Requester • Motivated by disagreement with Agency policy, decision – All e-mails between 2 members of the Board of Commissioners – All e-mails between staff and 2 members of BOC • Lawsuits Will Follow • Will ignore your needs and demand instant compliance Tips for Vindictive Requesters: • Take the high road – Be Nice! • Have the “right” person handle request • Make sure you know who else at your agency is talking to the requester • SPEAK WITH ONE VOICE • Try to figure out the “real reason” they are mad • Get help addressing the underlying issue • Communicate in Writing? • Follow procedures to the letter • Get Help! LEGAL ADVICE Recurring types of problem requests • Hidden Requests – • Arthur West request to LOTT – Attended public meeting on Port and waterfront development. Put records request on note cards collected to receive public ideas and feedback. • West v. Gregoire – West sent memorandum to Governor re “ATTENDANCE AT SECRET SHADOW GOVERNMENT EVENT, AKA (WSAC 2009 ANNUAL CONFERENCE). • Last paragraph asked for “all records of communications between the Office of the Governor and WSAC from 2007 to the present” Recurring types of problem requests • Techie Requests – Data logs - Neighborhood Alliance – Internet access logs – Cache files – Metadata – Electronic Records – Social Media Recurring types of problem requests • Metadata – What is it? How do I provide it? How do I redact it? • O’Neill v. City of Shoreline – Requesters must specifically ask for metadata – Considered part of the electronic record Social media as public record • CBH Columbia Basin Herald Local News • Posted: Thursday, March 14, 2013 9:00 am • By Joe Utter, Herald staff writer • Any posts on social media sites like Facebook and Twitter through government accounts becomes public records. This includes any comments made by the community. It also includes any posts on government employees' personal accounts relating to government business. • As an example, Grant County Sheriff Tom Jones posted his letter supporting the Second Amendment on his personal Facebook page on Feb. 25. Any comment added by Facebook "friends" becomes public record. Social media as public record • Is this an unconstitutional infringement on Sheriff’s First Amendment Rights? – Free Speech – Free Association • Can a public employee have private discussion about public business? Recurring types of problem requests • Asks for identifiable records, but by extremely broad categories – All records from Olympia Police Department for 2010-13. – Chen v. Medina – all records regarding Chen / police chief position for 8 years. Recurring types of problem requests • What if I miss something? – Does my search have to be perfect? – What if I Discover More Documents After My Response is Closed? • Provide & Explain. WAC 44-14-040 (11). Recurring types of problem requests • Vague Requests – Information Requests – Requests based on false premise • City of Toledo – “Document(s) relied upon your agency, by which I may determine, certifying in which or that your agency believes Lewis County District Court Cause #C5408 is contrary to malicious prosecution. “ • Jefferson County- All records for which there is no copy on a backup tape. • All records about … blah, blah ,blah , Pinning Down the Vague Request • Seek clarification– Ask Questions to bring into focus – Purpose of request – Types of records expected • Never Assume • Use a first installment to test whether you are on the right track – “Is this what you were looking for? If not, let me know” • Define your understanding of the request in your terms and seek requester’s agreement with your understanding. • Shift the burden to them to correct your interpretation. • Be fair to the language and intent of the request. Strategies to Cope • Requester must request and “identifiable” record. RCW 42.56.080 • Must provide sufficient information to allow you to locate record. • The PRA does not “require public agencies to be mind readers.” Bonamy v. City of Seattle, 92 Wn.App. 403, 409, 960 P.2d 447 (1998). • Clarification can also help narrow broad requests, even if the scope request is clear Strategies to Cope • An "identifiable record" is not a request for "information“ in general. – For example, asking "what policies" an agency has for handling discrimination complaints is merely a request for "information.“ – A request to inspect or copy an agency’s policies and procedures for handling discrimination complaints would be a request for an "identifiable record.“ • Public records requests are not interrogatories. An agency is not required to conduct legal research for a requestor. Limstrom v. Ladenburg, 136 Wn.2d 595, 604, n.3 (1998). Strategies to Cope • Asking for Clarification 1. state your understanding in reasonable, yet narrow terms 2. For broad requests, ask them to narrow by relating to specific searchable fields – add date range, subject, – department, author, recipient Strategies to Cope 3. Determine Requester priorities: Ask if they are looking for X, then provide X and ask is it enough? 4. Refer them to your agency’s index of records or similar document and point them in the right direction – ask them to describe their request in terms used by the agency’s organization Strategies to Cope • Principles in approaching chronic requesters: 1. Be helpful – approach with customer service attitude. 2. Requesters do not need to ask for records by name. 3. You know how your records are organized, the requester does not. Educate him. 4. Make a record showing you are being helpful – he may sue you anyway. Strategies to Cope • Request may take significant time to complete –establish a relationship and to make requester feel like you care. • Frequent status updates are essential. • Keep your promises. • Large Time Consuming Requests – Do they really want to impose that burden on the taxpayers? Coordinated Responses to Difficult Requests • Sensitive requests – Does the PRO need to know what’s going on? • Employment issues • Controversial projects • Litigation issues Search Techniques for Difficult Requests • Develop Relationship with IT Department • Personal Records – Beware the Dangers of Working at home • Document, Document, Document • Saving your search queries • Follow-up on leads Neighborhood Alliance requires reasonable search where records are likely to be found. Neighborhood Alliance v. Spokane County, 172 Wn.2d. 702 (2011) • The adequacy of an agency's search is separate from the question of whether the requested documents are found. • The adequacy of the search, in turn, is judged by a standard of reasonableness and depends upon the particular facts of each case. • Test: Did you search where there is reason to believe that the requested record is likely to be ? Neighborhood Alliance v. Spokane County, 172 Wn.2d 702 (2011). • Must inform requester in “general terms” of places searched when no records are located. • If records destroyed, agency must explain how destruction was legal. • Possible claim for penalties for inadequate search reserved. Agency liable for attorney’s fees and costs – requester deemed prevailing party if search is inadequate. Use Installments • How do I choose what to include in installments – How are records organized? – What is requester’s priority? – Volume of requested records • Provide what is easy, work on what is hard. • Provide what is clearly public, take your time on what needs closer review. Use Installments • First benefit: Good government – Requester gets records quicker • Second benefit: helps ensure you are providing the records the requester wants • Third benefit: If the requester doesn’t pick up an installment, you can treat the request as abandoned – but be sure they really don’t want the records because they could always re-make the same request Deposits • Statute allows but does not require agencies to request deposit of 10% before making copies • Effective to deter harassing requesters -- If requester only wants to harass, then the requester most likely won’t want to pay anything • Seek a deposit if history of non-payment or other reason to think won’t pay • Effective for large copying projects -- Requesting a deposit also demonstrates to the requester how expensive copies will be, which will avoid surprises • Establish a threshold size for asking for deposits. Cost of collecting and processing payment may exceed copying costs. Injunctions under RCW 42.56.540 as a possible remedy • What is basis for asking for injunction? – Disclosure clearly not be in the public interest – Substantially and irreparably damage any person – Substantially and irreparably damage vital governmental interest • Is repeated requests enough to get an injunction? – Harassment? Zink v. City of Mesa says no. • Soter v. Cowles Pub. Co. – additional requirements – Must show applicable exemption – Risk of penalties for “denial” by seeking injunction • Prisoner injunctions more successful. RCW 42.56.565. Egan v. City of Seattle, King Cty. Sup. Ct. 12-2-938-4 (2012) • Seattle sued to enjoin request for police dash-cam videos restricted by RCW 9.73.090. • Requester filed anti-SLAPP special motion to strike under RCW 4.24.510. • Court denied anti-SLAPP motion despite finding lawsuit “completely unnecessary”. • Public Records Act provides both right to request documents and right to seek injunction. • Request does not involve “Public participation and petition”. Must be more than just making records request. Future Issues in PRA Suits • Does a suit to enjoin a public records request involve “public participation and petition”? • Is filing a public records request an exercise of constitutional free speech rights? – Houchins v. KQED, Inc., 438 U.S. 1, 15 (1978) (“Neither the First Amendment nor the Fourteenth Amendment mandates a right of access to government information or sources of information within the government’s control.”) 5 Things You Need to Remember about the Public Records Act #1 Open Government: Sound Policy Purpose of Public Records Act RCW 42.56.030: The people of this state do not yield their sovereignty to the agencies that serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may maintain control over the instruments that they have created. This chapter shall be liberally construed and its exemptions narrowly construed to promote this public policy. #2 Open Government: A Legal Mandate for Everyone Here’s a story… about an electrical inspector . . . Who issued a citation to a former contractor … • Who made a public records request … • That got stashed in the file… For over a year … The inspector thought it wasn’t his problem. . . • The contractor requested “a copy of all permits issued and copies of inspections and correction requests by all inspectors on that residence.” • The inspector did not provide the contractor with any records. . . • nor did he forward the request to the public records unit or his supervisor. . . Until the lawsuit was filed. . . • Contractor filed a lawsuit under the PRA on July 22. • The public records unit responded by providing 16 documents on August 8. • On November 7, they provided 3 signed versions of the August 8 documents. But it was too late • Agency conceded liability for violating Public Records Act. • Trial Court Judge hammered the Agency – No intentional noncompliance – No bad faith in agency’s actions, – Key factor was the lack of governmental accountability. – No mitigating factors to excuse agency’s lack of compliance. – Imposed $90 per day penalty – For each of the 16 records withheld through August 8 – $10 per day penalty, per record for each of the 3 other documents Bricker v. Labor & Industries, 164 Wn.App. 16 (2011) • Trial Court reconsidered per record penalty • Reduced penalty to $29,445. • Both sides appealed! • Appeals Court affirms. #3 BE PROACTIVE IN YOUR RECORDS PROGRAM PUBLIC RECORDS POLICIES AND PROCEDURES • RCW 42.56.040 – Agency must Publish: – Agency Organization – Operating Procedures – Procedural Rules – Substantive Rules & Policy Statements – Amendments to Rules • Have a Plan! PROCEDURAL RULES • RCW 42.56.100 – Agency Rules to adopt “reasonable rules” – Provide full access to records – Protect Records from damage & disorganization – Prevent excessive interference with essential agency functions – Provide fullest assistance to inquirers and most timely possible action on records requests. – Priorities for responding to Records Requests – Queue Management Set Expectations About How Request Process Works and How You Will Respond Agency Policies & Procedures • Agency should adopt specific procedures to specify request process. – Who submit records request to? – When (regular business hours) – How (written request or agency form) • E-mail or mailing addresses where requests can be sent – Contact Information for Response – Format for Records Response • Review or Copy of Record • Electronic Format • Redacted records do not need to be provided electronically. Mechling v. Monroe; Mitchell v. DOC Proactive Management Policies • City of Pasco Adopts Resolution 3460 on March 4, 2013 – processes “complex” and “routine” requests. 50% of time for Records Requests spent on complex requests, 50% on “routine” requests – Factors to determine “complex” vs. “routine” are: (1) the general, expansive or all inclusive nature of the request; (2) the number of departments involved; (3) the location of records and available method of searching records; (4) the potential number of records implicated; (5) the rights of third parties; (6) the need for clarification of the request; (7) administrative tasks necessary to process the request; (8) the time needed to review documents for applicable exemptions; (9) the need for legal review of the public records request; (10) the format of relevant records; and (11) other relevant circumstances • Allows continued processing of specific requests while progress on large multi-year requests. #4 USE WEBSITES EFFECTIVELY Effective Use of Web Sites • Trend for future: Direct Electronic Access to common records via internet – Direct access reduces number of requests. – Demonstrates transparency and accountability. – Reduces cost to public and costs to agency for its search time. • City of Tumwater Records Center: https://web.ci.tumwater.wa.us/weblink/Browse.aspx #4 Effective Use of Web Sites • State Auditor’s Best Practices Recommendations: – – – – – – – – – – Contact info for Public Records Officer Electronic Public Records Request Form Link to Agency Public Records Policy Link to Public Records Act Link to Exemptions List Link to On-line resources (AGO Rules) Cost Information Ability to electronically submit records requests Ability to electronically access commonly requested records Response with referral to web page to access document instead of copied documents. #5 Training, Training and More Training! • AGO Model Rules recommend on-going training. • Auditor’s Report Findings: – Lack of understanding of Act and Model Rules impacts timeliness of responses. – 18 of 30 entities identified training as critical to successful response to Auditor’s requests. – Lack of training contributes to excessive redaction and withholding of records, particularly due to privacy concerns. – This means LACK OF TRAINING = LIABILITY! #5 Training, Training and More Training! • Training / Lack of Training directly affects amount of Penalty Assessments. • Yousoufian v. Sims – Lack of training led to “grossly negligent” response: – – – – – Inadequate search Looking in wrong place for records Inaccurate & false responses. No tracking or documentation of response. Establishes training or lack thereof as factor in determining amount of penalties Legislative Report SHB 1128 - Injunctions • Allows local governments to seek a civil injunction for a public record request if the request: – if it finds by clear and convincing evidence that a request will materially interfere with the work of the public agency; – Would likely threaten the safety or security of local government staff, family members of staff, or local government facilities; or – Would likely assist criminal activity. • • • • Establishes a summary court proceeding for seeking and obtaining an injunction against a public records request as authorized by this section. Exempts requests made by the news media from being enjoined authorizes attorneys' fees, not to exceed $15,000, against a local agency if injunction request was filed in bad faith or is frivolous; SHB 1128 - The “Gold Bar” Solution • Authorizes agencies to adopt a policy limiting the number of hours they devote to responding to public records requests, if the agency makes certain documents publicly available and meets other conditions. • Sets Minimum amount of time that a local agency, other than one without full-time staff, may spend responding to record requests under any policy limiting the time it spends responding at "12" hours per month. • Authorized under current authority to adopt rules concerning records process in RCW 42.56.100. House Leadership kills SHB 1128 • Leadership refuses to put bill on floor for vote despite majority support from members. Confidentiality of Juvenile Records • SHB 1651 - Provides that juvenile offender records are confidential unless the juvenile has been adjudicated for a sex offense or a serious violent offense or other listed violent crimes; the court may release juvenile records for inspection upon good cause shown. • Provides that juvenile offender records may not be published, distributed, or sold. • Passed House 97-0. Other bills still alive • Sunshine Committee bill – SHB 1298 • SHB 1418 - Cities and • Passed House 97-0 towns, requirements • Clarifies what information resulting from when holding office hours background checks of a guardian ad litem for fewer than 30 hours: may and may not be disclosed to the parties in a parent-child termination Must post directions on action. how to make a public • Makes changes to exemptions from public records request. Pass inspection and copying related to House 98-0 personal information contained in agency files, and examination reports obtained by the Washington Pollution Liability Insurance Program. • Changes the exemption from disclosure relating to the identifying information of child victims of sexual assault to be inclusive. • Adds an exemption from disclosure for information contained in a local or regionally maintained gang database. Questions?