Transcript Public Records Disclosure

AWPHD Membership Meeting
June 28, 2010
Presenters:
Joe Levan, MRSC Legal Consultant
Pat Mason, MRSC Senior Legal Consultant
www.mrsc.org (206) 625-1300
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MRSC
 Private nonprofit with state contract
 In existence since 1930’s
 State funding – profits from state liquor board and
liquor excise taxes
 Additional funding through contracts
 Serves city officials, county officials, public hospital
districts, sewer and water district association, and
Enduris
www.mrsc.org (206) 625-1300
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Programs
 Inquiries
 Publications
 Web Site – www.mrsc.org
 Library
 Training
 Special Projects
www.mrsc.org (206) 625-1300
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Inquiries
 Municipal law
 Management and administration
 Open Meetings and Public Records
 Public works and contracting
 Intergovernmental relations
 Budget and finance
www.mrsc.org (206) 625-1300
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Publications
 Free copies sent to customers
 Ask MRSC – Hospital District Edition e-
newsletter
 Municipal Research News – quarterly
newsletter
 Post-1993 publications on Web
www.mrsc.org (206) 625-1300
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Sample Publication Titles
 Knowing the Territory - Basic Legal
Guidelines for Washington City, County,
and Special District Officials
 Public Records Act for Washington
Cities, Counties, and Special Purpose
Districts
 Open Public Meetings Act
www.mrsc.org (206) 625-1300
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How to Reach Us
 Phone (206) 625-1300
1-800-933-MRSC (6772)
 Fax
(206) 625-1220
 E-mail [email protected]
 Web
www.mrsc.org
 Mail
2601 Fourth Avenue, Suite 800
Seattle, WA 98121
www.mrsc.org (206) 625-1300
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Update on 2SHB 2016
2SHB 2016 – Made Several Changes to Campaign
Contribution/Disclosure Laws, Including Use of Public
Service Announcements (ch. 42.17 RCW)
 PSA provision effective March 25, 2010 (other
provisions January 1, 2012)
 Section 703 prohibits municipal officers (which
include PHD Commissioners) from speaking or
appearing “in a public service announcement that is
broadcast, shown, or distributed in any form
whatsoever during the period beginning January 1st
and continuing through the general election if that
official or officer is a candidate.”
www.mrsc.org (206) 625-1300
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Update on 2SHB 2016
(continued)
 We received an e-mail from Nancy Krier (PDC
General Counsel) on Monday, June 21, stating:
 The PDC is continuing its discussion of a
possible interpretation concerning the 2010
PSA Law
 She noted that she had previously
corresponded with municipal attorneys on
this subject and that some had given input
www.mrsc.org (206) 625-1300
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Update on 2SHB 2016
(continued)
 She referred to a June 24 Public Disclosure
Commission meeting to continue discussion and
review and possibly adopt a second draft of an
interpretation
 She indicated that background materials,
including a copy of the second draft of the
interpretation, are posted on the Commission’s
website at www.pdc.wa.gov under “Commission
Meetings” with the agenda for the June 24, 2010
meeting
www.mrsc.org (206) 625-1300
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Managing Electronic
Communications & Records
 Big topic with many facets
 Focus here on real life scenarios and practical
suggestions
 From the perspective of PHDs as local government
agencies
 Outline
 Basic Principles
 Retention and Public Records Act Implications
 Scenarios
www.mrsc.org (206) 625-1300
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Electronic Records
The PRA Model Rules provide (WAC 44-14-05001):
 The Public Records Act does not distinguish between
paper and electronic records.
 Instead, the act explicitly includes electronic records
within its coverage.
 The definition of "public record" includes a "writing,"
which in turn includes "existing data compilations
from which information may be obtained or
translated."
www.mrsc.org (206) 625-1300
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New Retention Rules
 “Preservation of Electronic Public Records”
 Chapter 434-662 WAC (2009 & 2010)
 Electronic records must be retained in electronic
format and remain usable, searchable and
retrievable for entire retention period
 Printing a hard copy not a substitute unless
approved by the applicable records committee
www.mrsc.org (206) 625-1300
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Retention Requirements & the
Public Records Act
 A public record – including electronic records –
that has retention value under the applicable
retention schedule must be securely preserved for
its minimum retention period (WAC 434-62-010)
 If the record has no retention value under the
applicable retention schedule(s), it can be
destroyed
 However, the PHD should confer with legal
counsel before destroying records to ensure the
record is not needed for other purposes (e.g.,
potential litigation)
www.mrsc.org (206) 625-1300
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Retention Requirements & the
Public Records Act (cont.)
 Under the Public Records Act, if a record is
requested and it exists, the record must be
provided unless an exemption under the PRA
exists
 Consider: Exemptions, prohibitions, and
redactions
 If a public record has been properly destroyed
pursuant to the applicable records retention
schedule(s), and a PRA request is made for such a
record, the record does not exist for the purposes
of the PRA
www.mrsc.org (206) 625-1300
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Electronic Records
 Must produce records that are reasonably
locatable – one that can be located with typical
search features
 Metadata is likely part of the public record that
must be retained and produced for inspection
www.mrsc.org (206) 625-1300
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Processing Electronic Record Requests
 Basically the same process
 An agency should provide public records in
electronic format if that is requested
 Technical feasibility is the test
 May recover actual costs – no charge for sending
an e-mail unless had to scan document
 Agency can adopt schedule of actual costs for
scanning, etc.
www.mrsc.org (206) 625-1300
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Common Types of Electronic
Records
 E-mail
 Electronic documents
 Electronic copies of documents (e.g., scanned
copies)
 Web pages
 Social Media
 Blogs
 Facebook
 Twitter
www.mrsc.org (206) 625-1300
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E-Mail as a Public Record
 Which e-mails are public records with retention value?
 E-mail messages are public records when they are created
or received in the transaction of public business and
retained as evidence of official policies, actions, decisions, or
transactions
 Such messages must be identified, filed, and retained just
like records in other formats
 Review list from “Records Management Guidelines and
General Records Retention Schedules” (new in 2010)
 Also review separate Public Hospital Districts Records
Retention Schedule - Version 4.0 (March 2009) –
currently under review
www.mrsc.org (206) 625-1300
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Social Media
 Important to consider use of social media by public
employees and officials
 Blogs, Twitter, Facebook
 Generally posts are public records if they relate to
transaction of agency business
 Recommend adopting agency policy
www.mrsc.org (206) 625-1300
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E-Mails & the OPMA
 Discussion of PHD business involving a quorum of
the commissioners must take place in an open,
public meeting
 Serial contacts are problematic
 “Reply All” is asking for trouble!
 Providing info, one-way, is OK
www.mrsc.org (206) 625-1300
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OPMA – Meeting
Definition
 Any transaction of PHD business involving a
quorum of a governing body
 What is “transaction” of business?
 Includes more than decisions
 Discussions
 Deliberations
 Evaluations
 Receipt of testimony
www.mrsc.org (206) 625-1300
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What is a serial meeting?
 A “serial meeting” is a series of communications
that individually do not include a quorum but
collectively do involve a quorum.
www.mrsc.org (206) 625-1300
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Scenario 1:
Question:
 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
an issue?
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Scenario 1:
Answer:
 If a quorum is transacting PHD
business, it would constitute a meeting.
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Scenario 2:
Question:
 If the PHD used an official social media
site to host a conversation about a PHD
issue, and that conversation included
comments from individual PHD
commissioners, would that constitute a
quorum? If the PHD “noticed” it, would it
be an acceptable public meeting?
www.mrsc.org (206) 625-1300
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Scenario 2:
Answer:
 If the conversation included comments from
a quorum of the commissioners, it could
qualify as a meeting. There is no clear
authority currently under the OPMA to
notice a “virtual meeting.” Under current
law, social media sites are best used to
solicit input from the public, but not for
elected officials to formulate policy.
www.mrsc.org (206) 625-1300
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Scenario 3:
Question:
 If a PHD commissioner or employee uses
his/her personal e-mail address to
conduct PHD business, are such e-mails
subject to disclosure under the PRA?
www.mrsc.org (206) 625-1300
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Scenario 3:
Answer:
 Yes. If the officer or employee is using a personal
e-mail account to conduct PHD business, such
personal e-mails are subject to disclosure.
 The definition of “public record” includes records
“used” by an agency – the agency does not
necessarily have to have a copy of the record.
 See, Mechling v. City of Monroe, 152 Wn. App.
830 (2009).
www.mrsc.org (206) 625-1300
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Scenario 4:
Question:
 If a PHD official/employee accesses
his/her work e-mail through his/her
personal computer, does the data on the
personal computer become a public
record?
www.mrsc.org (206) 625-1300
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Scenario 4:
Answer:
 If the official/employee is accessing an agency email account through the internet, the e-mail
itself is very likely captured on the agency's
server.
 Only the work e-mail on your personal computer is
a public record.
 A work e-mail or file could be on your personal
computer if, for example, you copy a message or
file from your agency e-mail account to your
personal computer.
www.mrsc.org (206) 625-1300
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Scenario 4: (continued)
 Caution is warranted because if evidence shows that
you had a work record stored on your personal
computer and you cannot produce that record, there is
a risk that your agency may try to (or be ordered by a
court to) seize your entire computer to look for that
public record.
 While there may be some constitutional issues with
such an action, the Court of Appeals in O'Neill v. City
of Shoreline, 145 Wn. App. 913 (2008), ordered a
similar action.
 To limit risk in this regard, if you must save copies of
public records on a personal device, maintain a diligent
practice of always putting agency records in one
location on your computer.
www.mrsc.org (206) 625-1300
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Scenario 5:
Question:
 Is a local government agency required to
provide public records in electronic
format?
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Scenario 5:
Answer:
 If public, non-exempt records are held in electronic format,
such as e-mails and other records stored on computers, and
if the requestor requests those documents in electronic
format, the records should be provided in electronic format,
either on a disk or by electronically transmitting the files.
 In keeping with the spirit of the PRA, to the extent possible
and feasible, local government agencies should cooperate in
providing the records in the format requested.
 A jurisdiction can charge for the additional costs incurred in
doing customized formatting. See WAC 44-14-050 and the
comments to that provision, starting with WAC 44-1405001.
 All metadata that is part of an electronic record should be
transmitted with the record. See O’Neill v. Shoreline, 145
Wn. App. 913 (2008).
www.mrsc.org (206) 625-1300
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Practical Tips to Avoid
Liability
 Make sure that you have adopted policies to
handle public records requests, including
electronic records
 Appoint a public records officer and identify that
person for the public as the agency contact
 Training, training, training
 Adopt a fee schedule for copying and scanning
costs
www.mrsc.org (206) 625-1300
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Additional Resources
 MRSC Website (www.mrsc.org):
 Electronic Public Records Retention
 Social Media
 Open Government Advisor
 MRSC Publications:
 Public Records Act for Washington Cities,
Counties, and Special Purpose Districts
(November 2009)
www.mrsc.org (206) 625-1300
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Additional Resources
 Secretary of State – Washington State Archives
website
 E-mail Management – “What should I be doing?”
 Electronic Records Management - Advice and Resources
 Blogs / Wikis / Facebook / Twitter / Web 2.0
 E-mail Management
 Imaging / Digitization / Scanning
 Website Management
 Washington Attorney General’s web site:
 www.atg.wa.gov
 Open Records & Open Meetings Deskbook
www.mrsc.org (206) 625-1300
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Contact Info
 Joe Levan, MRSC Legal Consultant
 [email protected]
 (206) 625-1300
 Pat Mason, MRSC Senior Legal
Consultant
 [email protected]
 (206) 625-1300
www.mrsc.org (206) 625-1300
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Additional Background &
Legal Authorities
The following slides are included to
provide additional background and legal
authorities regarding the information and
scenarios discussed in the presentation.
www.mrsc.org (206) 625-1300
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Electronic Records
What is an Electronic Record under the
Public Records Act, Chapter 42.56 RCW?


Chapter 42.56 RCW does not define
“electronic record” specifically
However, “public record” is defined broadly
and includes electronic records
www.mrsc.org (206) 625-1300
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Electronic Records
What is an Electronic Record under
Chapter 434-662 WAC re: Preservation of
Electronic Records?

“Electronic record” includes those public
records which are stored on machine
readable file format.
WAC 434-662-020
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Electronic Record Model Rules
 Amended the original model rules
 Effective July 16, 2007
 Primarily WAC 44-14-050 through 44-
14-070
 “Processing of Public Records Requests –
Electronic Records”
 Advisory Only
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Electronic Records
WAC 44-14-05001:
 In general, an agency should provide electronic records
in an electronic format if requested in that format.
 Technical feasibility is the touchstone for providing
electronic records.
 An agency should provide reasonably locatable
electronic public records in either their original
generally commercially available format (such as an
Acrobat PDF/rs file) or, if the records are not in a
generally commercially available format, the agency
should provide them in a reasonably translatable
electronic format if possible.
www.mrsc.org (206) 625-1300
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Electronic Records
WAC 44-14-05001 (continued):
 In the rare cases when the requested electronic
records are not reasonably locatable, or are not in
a generally commercially available format or are
not reasonably translatable into one, the agency
might consider customized access. See WAC 44-1405004.
 An agency may recover its actual costs for
providing electronic records, which in many cases
is de minimis. See WAC 44-14-050(3).
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Electronic Records
WAC 44-14-05001 (continued):
 What is technically feasible in one situation
may not be in another.
 Not all agencies, especially smaller units of
local government, have the electronic resources
of larger agencies and some of the
generalizations in these model rules may not
apply every time.
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Electronic Records
WAC 44-14-05001 (continued):
 If an agency initially believes it cannot provide
electronic records in an electronic format, it should
confer with the requestor and the two parties
should attempt to cooperatively resolve any
technical difficulties. See WAC 44-14-05003.
 It is usually a purely technical question whether
an agency can provide electronic records in a
particular format in a specific case.
www.mrsc.org (206) 625-1300
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E-Mail May Be a Public
Record
 Just a different form of writing – not a separate
analysis
 Treat as any other written document
 Whether it is a public record is based on content of
e-mail not fact it is an e-mail
 Individual e-mail messages may be public records
with legally mandated retention requirements, or
may be information with no retention value
www.mrsc.org (206) 625-1300
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E-Mail as a Public Record
If PRA request is made:
 Does the e-mail exist?
 If yes, is there information in the e-mail that is
exempt or prohibited from disclosure?
 If yes, the exempt information can be redacted
and/or the information prohibited from disclosure
cannot be disclosed
 If the e-mail is requested in electronic format, it is
to be provided in electronic format
www.mrsc.org (206) 625-1300
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Exemptions
 Several exemptions included under the PRA
 Exemptions are permissive rather than
mandatory
 An agency has the discretion to provide an exempt
record
www.mrsc.org (206) 625-1300
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Prohibitions
 In contrast, there are prohibitions throughout the statutes
 An agency cannot provide a record when a statute makes it





"confidential" or otherwise prohibits disclosure
If a statute classifies information as "confidential" or
otherwise prohibits disclosure, an agency has no discretion to
release a record or the confidential portion of it
E.g., the Health Care Information Act generally prohibits the
disclosure of medical information without the patient's consent
– RCW 70.02.020(1)
RCW 42.56.360(2) provides that chapter 70.02 RCW applies to
public inspection and copying of health care information of
patients
HIPAA also provides specific protections for health care
information and records
See WAC 44-14-06002
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Quality Improvement
Committee
 RCW 42.56.360 provides an exemption from
disclosure under the PRA for information and
documents created specifically for, and
collected and maintained by, a quality
improvement committee
 RCW 70.44.062 addresses meetings,
proceedings, and deliberations of a quality
improvement committee
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E-mail Management
Source: Washington State Archives
 E-mails are “born digital” and their metadata
establishes their authenticity as a record
 E-mails need to be retained in electronic format
for their minimum retention period according to
records retention schedules
 By printing e-mails and destroying the electronic
records you may damage the authenticity of the email
 Agencies can still print e-mails, as long as the
electronic record is retained
www.mrsc.org (206) 625-1300
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E-mail as a Record
Source: Washington State Archives
 Not all e-mails are records with retention value
 Risks with “auto delete” functions
 “E-mail archiving” is just usually “e-mail storage,”
it does not generally contain retention or
disposition functionality
www.mrsc.org (206) 625-1300
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Advice from Washington State Archives
www.mrsc.org (206) 625-1300
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Scenario 6:
Question:
 What do you advise regarding employees
posting comments on PHD issues on
their personal social media sites? We’ve
cautioned our employees about speaking
for us or identifying themselves as
employees when making public
statements.
www.mrsc.org (206) 625-1300
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Scenario 6:
Answer:
 Due to the First Amendment, there are not
many limits you can put on what employees
say on their personal sites. But you can
counsel them on the risks to their personal
privacy if they start posting too much. This
includes strongly encouraging them to post
a “disclaimer.” This is an area where you
really need specialized legal advice from an
employment lawyer.
www.mrsc.org (206) 625-1300
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Scenario 7:
Question:
 How do you retain content and metadata
in compliance with the PRA for a
continually updated PHD website?
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Scenario 7:
Answer:
 There are programs available that will
“record” all of the changes. This is one
area where local governments could act
collectively and more cost effectively to
find/build software that could be used by
other local governments.
www.mrsc.org (206) 625-1300
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Key Summary Points
 Social media sites can be public records subject to
disclosure
 Officials and employees should not mix their
personal website with PHD business
 Content posted on social media sites can be
subject to retention requirements so post content
on the agency website first
 Avoid online contact with fellow board
commissioners
 Consult with your PHD attorney before you
proceed
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