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Saturday, June 30, 2007

Court: Paper Records Just Fine

Lawsuit Sought Electronic Database

"A Thurston County judge said Friday that state public-­disclosure laws do not require Washington government agencies to release information in electronic form if the material is offered on paper."

Friday, June 29, 2007

Gas Companies Seek to Block Release of Pipeline Data

"A coalition of energy companies asked the state Court of Appeals on Friday to block the release of information that regulators collect about oil and natural gas pipelines in Washington.
The gas companies are appealing a Thurston County judge’s ruling to release the information, arguing that it would make their 22,000 miles of underground pipeline systems vulnerable to terrorist attacks or vandalism. The newspapers that are asking for the information say it’s a matter of public interest, especially following the 1999 pipeline explosion in Bellingham that killed an 18-year-old man and two boys."

Thursday, June 28, 2007

School Board Sought Legal Advice on Secret Vote

"Two days after the Tacoma School Board voted in closed session on Superintendent Charlie Milligan’s review in March, district officials sought outside legal advice, recently released documents show. Milligan and members of the board – who now are negotiating his departure – spent a total of 3.7 hours in conversation with Valerie Hughes of the Perkins Coie law firm in Seattle on March 20 and 21, an invoice shows. The bill for her services: $1,369."

Yet another example of information coming to light via the Public Records Act.

A new law involves the disclosure of agency legal invoices like the Tacoma School District's. House Bill 1897 , which passed in the 2007 legislative session, clarifies that the law always required the disclosure of most portions of an agency's legal invoice. The new goes into effect on July 22, 2007.

Port of Seattle Taping Executive Sessions--Are the Tapes Disclosable?

The Port of Seattle proposes a novel open-meetings policy: "'All executive sessions shall have minutes taken in the form of an electronic recording to be held in confidence by the port's General Counsel'" but later adds "'except legal issues discussed with the port counsel present.'"

Here's the problem the Port faces. Government records such as the tape are presumed to be open to the public. Gray areas in definitions are interpreted by a court in favor of disclosure; that is, the tie-breaker goes to the records requestor. "Minutes" of a closed executive session can be withheld. But "minutes" mean the written summary of the meeting--a tape of the whole meeting seems different than mere "minutes." Furthermore, the Legislature is very good at meticulously detailing exactly what it means, so when it said "minutes"--but not "tapes"--can be withheld it must have meant something. And the tie-breaker in this debate goes to the records requestor.

As for the Port's apparent attempt to shield the tapes from public disclosure solely because they are kept in the Port attorney's office, good luck. The P-I story above quotes Allied Law Group's Greg Overstreet on this. He describes the "potted plant" doctrine, which provides that an attorney merely sitting in a meeting like a potted plant cannot turn conversations into nondisclosable privileged communications. There is much more to the attorney-client privilege than the mere presence of an attorney.

Tuesday, June 26, 2007

School District Expected to Release Tape Detailing Open Meetings Violation

"The St. Charles [Illinois] school board has agreed to release to the public and media a tape recording of a 2005 closed session meeting that officials say proves the board willfully broke the law. ... Officials have said the closed-session discussion in 2005 centered on a contract extension for now-outgoing Superintendent Barbara Erwin."

What a great idea: taping closed executive sessions of public meetings can prove violations and (far more importantly) deter many, many more. Attorney General Rob McKenna (R) and State Auditor Brian Sonntag (D) will be jointly requesting a taping bill in the 2008 legislative session. Auditor Sonntag proposed this same bill in the 2001 legislative session but local government argued--get this--that requiring taping was an "unfunded mandated" which would presumably bankrupt local governments. A small digital recorder costs about $59. The saddest part about this argument is ... it worked, at least in 2001. But we think things will be different in 2008.

Monday, June 25, 2007

Investigation of Possible Voter Fraud Brought to Light by Public Records

"Prosecutors in King County are looking at possible criminal charges related to a voter-registration drive held in 2006, echoing the suspicions of impropriety raised during the razor-close gubernatorial election of 2004." Emails from elections officials discussed the need for an investigation. "The e-mails came to light after a records request by the Building Industry Association of Washington. BIAW posted some of the e-mails on its Web site."

Good for BIAW. Often maligned as too "conservative," BIAW does some of the best investigative work around--and usually via the Public Records Act. (Uncovering wrongdoing by the status quo government establishment is hardly "conservative," but that's a discussion for a different day.) Many in government want to weaken the Public Records Act. Ever wonder why?

Judge Grants Class-Action Status to Open Records Lawsuit

"An Oklahoma County judge today approves a request by an attorney to grant class-action status to a lawsuit filed concerning Oklahoma City's rules for people who want copies of public records. ... The suit alleges the city violated the Oklahoma Open Records Act by charging search fees to people who wanted copies of law enforcement records."

Washington law prohibits a "search" fee for public records. Many have thought a class-action suit in Washington over illegal "search" fees and excessive copying charges would make sense. After all, an agency is not even remotely deterred by having to refund a few dollars to an individual requestor, but if you group several thousand requestors together for refunds ...

Torture: The State Fails a Young Girl

"It took 10 years for the state of Washington to decide Chornice Lewis was an unfit foster mother. ... State records show the girl was abused for years: beaten, burned, locked in a storage closet and a car trunk, and partially blinded with hypodermic needles. ... Hundreds of pages of investigative files show teachers, neighbors and police officers repeatedly warned foster care workers about the girl's suspicious injuries and her dubious denials of mistreatment."

How did you and thousands of other citizens learn about this horrible tragedy? "State records show" means the Public Records Act. "Hundreds of pages of investigative files" also means the Public Records Act. Running this story, which was made possible by access to public records, will hopefully change things for other kids and help us keep our government accountable.

Prosecutors Keep List of Problem Officers

"For more than a year, the King County Prosecutor's Office on its own has tracked police officers and sheriff's deputies known to have credibility problems and has painstakingly compiled a list. ... A review of disciplinary records and court files involving these officers reveals a host of issues that could threaten the prosecution of alleged criminals. ... In many instances, prosecutors find out about problems with an officer at the last minute from a defense lawyer who has obtained the information from a public-records request."

The "review of disciplinary records" mentioned in the story would be via the Public Records Act. The review of "court files" would be via open-government court rules which are similar to the Public Records Act. Then the story magnificently illustrates the importance of the Public Records Act by noting that problem officers are discovered by defense lawyers who find out about them "from a public-records request." Wow. You couldn't come up with a better example of how the Public Records Act allows us to remedy wrongs and keep government accountable. Quite a few in government want to eliminate or severely weaken the effectiveness of the Public Records Act. Ever wonder why?

NJ School Board Whacked for $18,000 for Withholding Minutes of Open Meeting

"A school board that refused to provide complete minutes of board meetings was ordered to pay $18,000 in penalties and legal fees after a newspaper sued." When the school board's legal fees are added, the total loss for the students of the NJ district is about $50,000.

To be crystal clear: Minutes of an open meeting in Washington are public records subject to disclosure. The law provides: "The minutes of all regular and special meetings except executive sessions of [all] boards, commissions, agencies or authorities shall be promptly recorded and such records shall be open to public inspection."

Tip of the hat to Leslie Graves for this story. She operates a great blog called State Sunshine and Open Records. She provides a weekly roundup of open-government news stories from around the United States in a feature called Random Friday Links, from which I found the NJ story.

Friday, June 22, 2007

NC Town Must Pay Newspaper's Legal Fees in Records Dispute

"RALEIGH, N.C. — A Dare County judge has ordered the town of Kitty Hawk to pay a newspaper $75,000 to cover legal costs it incurred as it fought for access to government records. The Outer Banks Sentinel sued Kitty Hawk in 2004, after town officials refused to release billing records of the town’s contract attorney in 2003 and 2004. ... Superior Court Judge Richard Parker, in a decision filed June 19, blamed the town’s attorneys for using 'totally unwarranted' tactics in defending the case, adding expenses to the newspaper’s legal costs."

Sounds familiar.

By the way, the Legislature passed a bill in 2007 specifically declaring that agency legal invoices are subject to disclosure (with minor redactions). The law goes into effect on July 22, 2007. What do you want to bet that local governments in Washington continue to deny requests for their legal bills? Denying a public records request when the Legislature specifically passed a law declaring the record to be disclosable is perhaps the best possible example of "totally unwarranted" defense tactics. Prediction: In a few months, OG-Blog will be writing about a huge award of legal fees and penalties because a local government attempted to withhold legal invoices.

Identities of Teachers Accused of Sexual Misconduct--Thanks to Public Records

More news you wouldn't have known without access to public records: "Three Hoquiam teachers have been accused of misconduct in the past 13 months."

While the story doesn't say so, I suspect that the newspaper did what newspapers often do: heard a tip and then verified it with public records. Newspapers don't just print rumors, despite what their detractors think. Public records are routinely used to verify the facts--and that's a good thing. No verification via public records and no story. That's a bad thing, especially if you have students in a public school and had no idea one of your child's teachers was accused of sexual misconduct.

By the way, the Seattle-area teachers unions actually argued in the state Supreme Court a few months ago that obtaining public records showing the identities of teachers accused of sexual misconduct with students was "not in the public interest." Think about it.

Tennessee Gets an Open Government Ombudsman

"The state is now looking for an expert on open records. The budget that goes into effect in July includes $100,000 to hire an open records ombudsman, someone to help regular people get documents that are available under the state's Public Records Act."

Good for Tennessee. Pierce County is looking at doing the same thing and Washington's Attorney General, Rob McKenna, did the same in early 2005 by hiring Allied Law Group's Greg Overstreet. Now that Overstreet has moved over to private practice, McKenna has replaced him with Tim Ford. A public records ombudsman is one of the few examples in government where a public employee's job is specifically to help individual people with claims against the government. It's rare. But needed.

Florida (Copies Washington and) Creates Sunshine Committee

"Gov. Charlie Crist on Tuesday created the state's first Open Government Reform Commission, which will search for ways to make Florida more open to residents. The nine-member panel will review hundreds of exemptions to public records laws that have multiplied in recent years. It also will examine fees charged to the public and media to inspect and copy records as well as the use of the Internet to improve public access to government information."

Imitation is the highest form of flattery so Washington citizens should feel flattered. Our legislature created a Sunshine Committee this year and it will start meeting in July. Good for Florida, which is, after all, the "Sunshine State" (that's what their license plates say so it must be true).

Tip of the hat to Mindy Chambers at the Washington State Auditor's Office who alerted OG-Blog to this.

Corrections Faces Another Records Lawsuit

"A Thurston County judge will soon decide if the state Department of Corrections was obligated to provide electronic records to Doug Moore, a Tacoma man who wants to find out how many hours part-time agency employees must work in order to qualify for health insurance. "

The Department of Corrections should look at the Attorney General's recently-adopted (non-binding) model rules on providing electronic records (scroll down to "2007 Model Rules (Electronic Records)"). They say that electronic records should be provided in an electronic format in most cases.

Monday, June 18, 2007

Interesting State-by-State Survey of Disclosure of Public Employees’ Salaries

Washington does pretty well. For the record: the disclosure of a public employee’s salary is absolutely required by the Public Records Act. Don’t let anyone tell you differently.

City Attorney Stops Release of Report Critical of Police

"The Seattle City Attorney's Office has blocked the release of a 'very critical' report on the police department written by its civilian review board. Peter Holmes, an attorney and the chairman of the Office of Professional Accountability Review Board, said he was told Friday that release of the report -- which was set for Monday -- could expose him and its other author to possible civil liability such as defamation."

Liability for releasing a public record in good faith? Not possible. RCW 42.56.100 provides: "No public agency, public official, public employee, or custodian shall be liable, nor shall a cause of action exist, for any loss or damage based upon the release of a public record if the public agency, public official, public employee, or custodian acted in good faith in attempting to comply with the [the Public Records Act]." So fear of liability isn't the reason to withhold this record ...

Friday, June 15, 2007

(Wis.) Court Rules Open Meetings Notice Must Be Specific

"Government bodies must spell out the business they will take up in meeting notices when they consider issues of broad public interest, the state Supreme Court ruled Wednesday."

Washington's Open Public Meetings Act does not require an agenda, let alone an agenda with enough information to inform the public of what the meeting is about. So in Washington the public can attend a meeting ... but cannot require the agency to tell them what the meeting is about.

Thursday, June 14, 2007

Washington State Bar News Review of Public Records Deskbook: "a landmark, hitting the ball out of the park."

ALG's Greg Overstreet is the Deskbook's Editor-in-Chief and ALG's Michele Earl-Hubbard is a Senior Editor

"[The] Public Records Act Deskbook is a hands-on users' guide to getting information from state government, whether one is a lawyer or not. As such, it stands as one of the WSBA's more remarkable and successful efforts to manifest its mission to serve the people of Washington."

Pierce County Considering Adding Open-Government Ombudsman and Adopting AG's Model Rules

"A public hearing on adding an open government advocate to Pierce County as well as model open government language to the Pierce County code has convinced County Councilman Shawn Bunney, R-Lake Tapps, he should proceed on both ideas."
OG-blog thinks Pierce County could really use some open-government improvement. Kudos to county councilmember Shawn Bunney for thinking of this and moving forward on it. Once again illustrating that open government is not a partisan issue, Attorney General Rob McKenna (R) and State Auditor Brian Sonntag (D) testified in favor of the proposal.

Pierce County Considering Adding Open-Government Ombudsman and Adopting AG's Model Rules

"A public hearing on adding an open government advocate to Pierce County as well as model open government language to the Pierce County code has convinced County Councilman Shawn Bunney, R-Lake Tapps, he should proceed on both ideas."

OG-blog thinks Pierce County could really use some open-government improvement. Kudos to county councilmember Shawn Bunney for thinking of this and moving forward on it. Once again illustrating that open government is not a partisan issue, Attorney General Rob McKenna (R) and State Auditor Brian Sonntag (D) testified in favor of the proposal.

Friday, June 8, 2007

County To Provide Agendas In Advance of Public Meetings

This might seem like a small thing, but it’s not. Quite a few local governments will not provide an agenda for an upcoming meeting. Agendas are a disclosable public record. Local governments withhold agendas at their peril.

Public records lead to ...

Ferndale’s mayor faces probe

"City Council members Monday night unanimously called for an investigation of Mayor Jerry Landcastle’s conduct. ... The investigation comes after The Bellingham Herald reported Wednesday that the mayor told staff in March emails to fast-track the permitting process for Fairhaven Candy — despite the business not having adequate paperwork in to the city planning department — because the business would be good for the city and the owner was a local resident."

Monday, June 4, 2007

Public records (in Pa.) show ....

PHEAA spent $409,413 fighting to keep 'retreat' expenses secret

"There's only one likely explanation for why the higher-ups at the Pennsylvania Higher Education Assistance Agency spent $409,413 on lawyers to fight a Patriot-News request for records of travel expenses incurred by its employees and board members: They didn't want to embarrass themselves with revelations of high, even ridiculous expenditures on themselves, money that otherwise could have -- and should have -- gone to help students overcome the high cost of going to college."