Public Records Disclosure

1. Public Records Disclosure

2. Penalties for PRA Violations • King County - $360,000 – (Yousofian) • DSHS - $525,000 • Mason County - $135,000 and $175,000 to father and son in part for request caught in spam filter • Prosser - $175,000 – round one • Mesa - $240,000 – twice annual general tax collection • Jefferson County - $40,000 – attorney fees, mainly for redacting number to pizza restaurant

3. PRA Scenario One • You are a county commissioner (or county auditor, assessor, sheriff, clerk, etc.) and you receive an e-mail on your home personal computer from a citizen with a comment on county business. You respond to the comment and then delete the e-mail exchange. • Does this raise any concerns with public records or other doctrines?

4. Answer to Question 1 • Yes. Under the public records act, the definition of public record is very broad. Whether a record is a public record is determined by its content and use – not by the medium used to transmit it • The topic is public business and you are a public official so it is a public record whether received on home computer or not • Also, record retention requirements.

5. PRA Question 2 • Do e-mails and text messages constitute public records when they are related to county business and are on your cell phone, iPhone, BlackBerry, smart phone, or other personal digital assistant?

6. Answer to Question 2 • Yes. In addition to your home computer, there also could be public records on your cell phone, smart phone, iPhone or BlackBerry. • Also, if you have a Facebook page, or blog – these may create public records that are public records and subject to retention requirements.

7. PRA Question 3 • If you as a county official have private, personal, non-c0unty information in e-mails on personal computers, could those computers be subject to search?

8. Answer to Question 3 • Yes. If a county official has been conducting county business on a personal computer, that computer and e-mail account are potentially subject to search in response to a public records request. • Additionally, if the PRA request results in a lawsuit and a court finds that the search that was conducted was insufficient, the court may order your entire hard drive searched. • That is what happened in O’Neill v. Shoreline case.

9. Answer to Question 3 - II • This scenario does not result in the entire hard drive of your personal computer becoming a public record. • However, it could mean that a court would give someone else access to your personal computer and your personal files.

10. Basic Rule • Each agency shall make available for inspection and copying all public records, unless exempt • Codified in Ch. 42.56 RCW • Presumption is that public records are available for public inspection and copying

11. Electronic Records - Retention • WAC 434-662 • Electronic records must be retained in electronic format and must remain usable, searchable, retrievable, and authentic for the entire length of the retention period • Effective January 1, 2009

12. What Is a Public Record? • Any “writing” that contains 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 • Writing includes all forms of written or recorded communication

13. Costs • Cannot recover costs for staff to locate and produce records for inspection • Cannot recover costs for review of records to redact protected information • May recover actual copying costs • Default fee is 15 cents a page

14. Public Disclosure Act • Adopted by statewide initiative in 1972 • Became part of RCWs in 1973 • Recodified in Ch. 42.56 RCW • Amended by legislature and interpreted by courts extensively since then

15. Potential Liability • Counties and cities have been held liable for monetary damages for failure to disclose public records properly • Some large settlements – from $5 to $100 a day for improperly refusing to disclose • May include costs and attorneys fees

16. Not Agency Obligations • Immediately respond • Create records that don’t exist • Obtain records from somewhere else if agency does not have records • Respond to unclear request

17. Exemptions • Many exemptions from public disclosure in Ch. 42.56 • When in doubt, check with legal counsel

18. Practical Tips to Avoid Liability • Make sure that you have adopted policies and procedures to handle public records requests • Make sure policies are up-to-date and include electronic records • Appoint a public records officer • Training, training, training – of staff and employees

19. Good News – Some Immunity • No public official, agency or employee will be liable nor cause of action exist for damage based on release of public record if acted in good faith to comply with public records law – RCW 42.56.060

20. Resources for Public Records Act • County Prosecuting Attorney • MRSC Web site: articles, forms, sample ordinances, links – www.mrsc.org • Public Records Act for Washington Cities, Counties and Special Purpose Districts, MRSC Report No. 61, November, 2009

21. Open Public Meetings Act

22. OPMA Question 1 • Would it constitute a meeting if there is an e-mail exchange between a collective quorum of board commissioners, and the board makes substantive comments on issues?

23. Answer to OPMA Question 1 • Yes – if a quorum of commissioners are discussing county business, that would constitute a meeting? • Does not have to be conducted simultaneously, may be what is termed a serial meeting!

24. OPMA Question No. 2 • If the county commissioners used an official social media site to host a conversation about a county issues, and that conversation included comments from individual county commissioners, could that constitute a quorum for a meeting? • If the county noticed it as a meeting, would that make it an allowable meeting?

25. Answer to OPMA Question 2 • If the conversation included comments from a quorum of the commissioners, it could qualify as a meeting. There is not clear authority under the OPMA to notice this kind of virtual meeting. • Under current law, social media sites are best used to solicit comments from the public, but not for elected officials to formulate policy.

26. Basic Requirements • All meetings of a governing body of a public agency must be open and all persons permitted to attend • All final actions must be adopted at public meeting or invalid • No secret ballots • Codified in Ch. 42.30 RCW

27. What Is a Meeting • Meeting of quorum of governing body where action is taken • Action includes discussion, deliberations, public testimony, review, evaluations • Action includes final action, voting on motions, resolutions, ordinances

28. Meetings • Social gathering or travel excluded if do not discuss public business • Retreat, work session, study session are meetings • Administrative staff can meet • Telephonic meetings • E-mail meetings

29. Who Can Attend • No conditions on public attendance • Cameras and tape recorders are permitted unless disruptive • Reasonable rules of conduct can be set • No right of public to comment or discuss at meeting

30. Special Meeting • Any meeting other than regular meeting regardless of label • May be called by presiding officer or majority of governing body • Must give written notice 24 hours in advance of the meeting

31. Special Meeting Notice • Notice must include: • Time • Place • Business to be transacted

32. Place of Meetings • County commissioners must hold regular meetings at county seat • Special meetings may be held outside county seat if appropriate notice is given

33. OPMA Question No. 3 • How many incidents of violations or potential violations of OPMA reported by Office of State Auditor between 2004 and 2007 for local governments? • Between 100 - 200 • Between 300 – 400 • Between 600 – 700 • More than 1,000

34. OPMA Answer No. 3 • The answer is actually 614 • Most involved executive sessions and many were really procedural violations

35. Executive Sessions • What is an executive session? • part of a regular or special meeting • closed to the public • Who may attend? • members of the governing body • others invited • attorney must attend for litigation discussion

36. Procedures • Presiding officer announces: • purpose of executive session • time when it will end • To extend time, announce to what time • May not take final action in executive session

37. Reasons for Executive Session • List of allowable reasons in RCW 42.30.110 • Litigation or Potential litigation – may meet with legal counsel in executive session to discuss: • Agency enforcement actions • Litigation • Potential litigation

38. Actions Not Covered by OPMA • Listed in RCW 42.30.140 • Not even covered by Act so notice or other requirements do not apply • Main one – collective bargaining sessions, including contract negotiations, grievance meetings, and portion of meeting where governing body is planning or adopting strategy in collective bargaining matter

39. Penalties • Ordinances, resolutions, or orders adopted at illegal meeting are void • Member of governing body who knowingly participates in illegal meeting subject to $100 fine • Judge may award costs and attorneys fees to citizen who prevails against agency to enforce Act

40. Resources on OPMA • County Prosecuting Attorney • The Open Public Meetings Act – MRSC Report No. 60, May 2008 • MRSC web site – www.mrsc.org

41. Conflicts and Ethics

42. Ethical Question 1 • All county department heads and county commissioners are sent a box of chocolates from a local developer during the holidays. No specific action is pending or requested by the developer? • May you keep the chocolates?

43. Answer – Ethics Question 1 • Maybe - ? • RCW 42.23.070(2) – No municipal officer may, directly or indirectly, give or receive any compensation, gift, reward or gratuity from a source except the employing municipality, for a matter connected with the officer’s services unless otherwise authorized by law • Strict prohibition – unlike state ethics code with $50 limit

44. Ethics Question No. 2 • May the spouse of a county commissioner be hired to work as an employee in the office of the commissioner without violating the conflict of interest provision in state law?

45. Answer to Ethics Question 2 • No in most circumstances • If the salary for the position were less than $1500 in a calendar month for a part time position, it would be allowable • Arguably a separate property agreement might be entered into between spouses to maintain wages as separate property.

46. Ethics for County Officials • Unlike for state officials, not in one place in state law • RCW 42.23.070 – Prohibited acts for local government officers • Enacted in 1994 • Only applies to local government officers, not employees

47. No Special Privileges • Four Prohibitions • No municipal officer may use his or her position to obtain special privileges for himself, herself or others • Can’t waive permit fees • No special rates or fees for county services • Same procedures apply for permits, etc.

48. No Gifts or Rewards • No officer may give or receive any compensation, gift, reward from any source except employing municipality for any matter connected with officer’s services unless otherwise provided by law • No additional compensation • No free trips, tickets to events, etc.

49. What Is a Gift? • No exceptions on amount of gift in local government statute • State ethics code does have definition of gift in RCW 42.52.150 • No gift with value over $50 in year • Office of State Auditor likely will apply this standard to local government officers

50. Not Considered Gifts for State Officials • Unsolicited flowers and plants • Unsolicited advertising or promotional items of nominal value – tee shirts, key chains • Unsolicited awards, plaques, trophies • Informational materials • Food and beverages consumed at hosted reception or function if attendance related to duties