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After Maurice Clemmons shot and killed four Lakewood police officers, the Seattle Times filed several public records requests seeking documents related to the tragedy.

The State filed charges against seven alleged accomplices of Maurice Clemmons. Several of these defendants sought to prohibit the Pierce County Sheriff’s Office from producing any documents in response to the Times’ request. Two judges, Judge Susan Serko and Judge Bryan Chushcoff (who is running as a candidate for the Supreme Court against Justice Richard Sanders), entered orders sealing documents related to the criminal trials, including exhibits that were entered in open court. Judge Serko said the rights of the accused would be compromised by the release of the records.

The Seattle Times filed a petition with the Supreme Court requesting a writ of mandamus to compel the judges to provide public access to police incident reports and other public records. The Supreme Court has agreed to review the case.

The case is Seattle Times v. The Honorable Susan K. Serko and The Honorable Bryan E. Chushcoff, No. 84691-0. A copy of the petition is here, and a copy of the judges’ response is here.

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At 9:00 a.m. this morning the Court will hear one argument on a Public Records Act case. Because it involves a sitting justice, the entire Court may be replaced by pro tem justices (judges drawn from a lower court to review just this case). (Docket, briefs) After today the Court will recess from arguments until May.

Richard Sanders v. State, No. 82849-1. Justice Sanders is asking the Court to find that the Attorney General's Office violated the Public Records Act by withholding hundreds of requested records under various exemptions claimed without explanation; and to determine whether the penalties and costs awarded to Sanders by the trial court were sufficient.

In 2004, Sanders sent a request to the Attorney General's Office for all documents related to his visit to the McNeil Island Special Corrections Center and the actions taken by the Commission on Judicial Conduct in response to his visit (which led to a different Sanders v. State). Over a hundred responsive documents were withheld or redacted, primarily under the "related to a current case or controversy" exemption to the PRA (RCW 42.56.290), with no explanation of why the documents fell under that exemption.

The trial court found that the AGO had violated the PRA by not providing the required "brief explanation" for how exemptions apply, and that some of the withheld records should have been disclosed. Sanders asked for a $70 per day penalty, the trial court fined the AGO $5 per day for withholding records and $3 per day for not explaining the exemptions; and awarded Sanders 37.5% of his attorney fees. He appeals both the ruling that some of the documents were exempt, and the amounts of the penalties and fees.

This is the case that led to the claim that Sanders was self-serving in his Yousoufian v. Sims majority opinion. Due to that controversy, the appellate court determined it didn't have the authority to review, and kicked the case up to the Supreme Court.

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In case you have a fetish for following open government law, like we do, here's the video from yesterday's oral argument in Yakima County v. Yakima Herald Republic.

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Tomorrow the Court will hear Yakima County v. Yakima Herald-Republic, which concerns whether the Public Records Act applies to administrative court records, specifically billing records explaining fees paid by Yakima County to public defense attorneys.

The Court recently ruled on a similar issue in Federal Way v. Koenig, affirming the twenty-year precedent in Nast v. Michels and finding that administrative court records were not subject to the PRA, so it will be interesting to see if the Court will try to differentiate this case, or merely affirm Koenig.

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The Supreme Court has rejected a public records request for local court documents, ruling that the court system is not subject to the state's Public Records Act.

David Koenig requested records from the Federal Way Municipal Court, including records related to the resignation of Judge Colleen Hartl and correspondence to and from presiding Federal Way Municipal Court Judge Michael Morgan. The City of Federal Way provided 183 pages of documents but refused to provide Judge Morgan’s correspondence. The City asserted that the court was not subject to the Public Records Act, which gives the public access to documents held by government agencies. The trial court agreed, and Koenig appealed to the Supreme Court.

The Supreme Court today, with Justice Susan Owens writing the 6-3 majority, upheld the trial court. The court reaffirmed its ruling in Nast v. Michels (1986), in which the court held that the PRA does not apply to court case files because the judiciary is not included in the PRA's definition of “agency.” Koenig had argued that Nast only applied narrowly to internal case files, but should not be extended to administrative court records. The court disagreed. Justice Owens wrote: “This court has already ruled on the issue of whether the judiciary is subject to the PRA, and Koenig has not demonstrated that the established rule is incorrect and harmful. Therefore, we affirm the trial court’s holding that the PRA does not require the City to release the requested judicial records because the PRA does not apply to the judiciary.”

Justice Pro Tem Kevin M. Korsmo concurred in a separate opinion, writing that in his opinion Nast was decided improperly but the court was bound by its previous decisions until the legislature chooses to amend the PRA to extend to the judiciary.

Justice Debra Stephens, along with Chief Justice Alexander, dissented, arguing that court clearly fall under the statute. “In my view, Nast should be read narrowly as construing the Public Records Act (PRA) within the context of the records at issue there: court case files. Accordingly, it does not bind us to an interpretation of the current act, chapter 42.56 RCW, that categorically excludes the judicial branch of government from the mandate for open government. Because I believe our branch of government is an ‘agency’ subject to the strictures of the PRA, I respectfully dissent.”

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Morgan v. City of Federal Way, et al., No. 81556-9. The City of Federal Way hired attorney Amy Stephson to investigate a complaint of a hostile work environment at the municipal court. The News Tribune requested a copy of the report and Judge Michael Morgan, the subject of the complaint, sued to prevent its disclosure.

The threshold issue in the case was whether the Stephson report was a public record. Judge Morgan argued that the Stephson report was a court record, which should be exempt from disclosure. If, however, the Supreme Court determined that the report was a city record Judge Morgan argued that several exemptions to the Public Records Act should apply to bar disclosure. Specifically, he claimed Amy Stephson was acting as his attorney when investigating the workplace complaint. Judge Morgan argued the report should be exempted from disclosure by the work product, attorney-client privilege, and personal information exemptions to the Public Records Act.

The Supreme Court previously ordered the release of the Stephson report with an opinion to follow. Today’s opinion provides the rationale for releasing the document.

Justice Susan Owens, writing for a unanimous court, rejected all of Judge Morgan’s arguments and held the report was a public record and that no exemption would justify non-disclosure. First, the Court addressed whether the Stephson report was a public record, and held that the report was “prepared, owned, used, and retained by the City; thus it qualifies as a public record and is subject to disclosure under the PRA.”

The Court noted that the work product exemption applies to records that relate to “completed, existing, or reasonably anticipated litigation.” The exemption does not shield records created during the ordinary course of business. As the Stephson investigation was conducted as a result of the city’s antidiscrimination policy, rather than in anticipation of litigation, the work product exemption does not apply.

Next, the Court held that communications between Morgan and Stephson were not protected by attorney-client privilege. Stephson was hired as an independent investigator, and the purpose of her investigation was to comply with the city’s antidiscrimination policy. No attorney-client relationship developed between Stephson and Judge Morgan, thus the investigation and report were not  privileged. (The Court also wrote that an email Judge Morgan sent to the city attorney was not protected as Morgan waived the privilege when he forwarded the email to a third party.)

Finally, the Court held that the personal information exemption did not apply. This exemption only extends to matters concerning a person’s private life that would be highly offensive to a reasonable person and are of no legitimate concern to the public. The Court noted the public’s substantial interest in the disclosure of information related to the performance of an elected official.

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The Washington Supreme Court has withdrawn its landmark public records ruling in Yousoufian v. Office of Ron Sims, after King County's motion that Justice Richard Sanders, who wrote the majority opinion, stood to benefit from the ruling.  (Court order here and Seattle Times story here.)

The court says it will schedule arguments “in due course.”

The Yousoufian ruling provided guidelines for assessing the severity of penalties when a public agency violates the state's Public Records Act. 

After the ruling issued, the Seattle Post-Intelligencer reported that Justice Sanders had his own separate, long-running public records case. Justice Sanders says he cleared his involvement in Yousoufian with the court's ethics expert, and that recusal was not required in this situation. King County lawyers asked the Supreme Court to vacate the Yousoufian ruling and provide for new argument.

In April we wrote about the outcome of a possible rehearing: 

What would happen if the court grants King County’s motion for a rehearing?

Hard to say. Sanders wrote the majority, which was signed by Justices Charles Johnson, James Johnson, and Fairhurst. Justice Chambers concurred with the majority’s analytical guidelines, but disagreed over whether the trial court judges abused their discretion as related to the penalty awarded Mr. Yousoufian. In addition to signing the majority, Justice James Johnson filed a concurrence, which Justice Sanders signed. Chief Justice Alexander separately concurred with the analytical guidelines, but dissented to the extent that Sanders ordered the trial court to impose penalty “at the high end of the penalty range.” Finally, Justices Owens and Madsen dissented, along with Justice Pro Tem Karen Seinfeld, protesting the “cumbersome multifactor test.” Justice Stephens did not participate.

Given the kaleidoscope of opinions, it’s difficult to predict an outcome if the Supreme Court granted a rehearing. Replacing Sanders, and assuming all other members ruled similarly, there are still five votes to uphold Yousoufian's analytical framework. And as I've noted elsewhere, Justice Stephens, who did not participate, seems to line up on the side of open government.

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As Trent notes below, the Supreme Court issued an order in Morgan v. City of Federal Way, with an opinion to follow. For the time being, we know the outcome, but not how the court reached it.

The threshold issue in the case was whether the Stephson report was a public record. Judge Morgan argued that the Stephson report was a court record, which should be exempt from disclosure. If, however, the Supreme Court determined that the report was a city record—rather than belonging to the court—Judge Morgan argued that several exemptions to the Public Records Act should apply to bar disclosure. Specifically, he claimed Amy Stephson was acting as his attorney when investigating the workplace complaint, so the report should be covered by attorney-client privilege or the attorney work product privilege.

So how will the opinion read? My best guess is that the Supreme Court determined that the Stephson report was in the city’s possession, and was therefore a public record. Making this determination would allow the court to skirt the issue of whether court records should be disclosed. Having determined the report to be a public record, it wouldn’t difficult for the Supreme Court to dismiss the attorney-client claim. Judge Morgan did not hire Amy Stephson and did not want her to investigate. The report was ordered by the city, and the city retained it when the investigation concluded.

So, it’s likely we’ll see a ruling favoring the release of reports about official misconduct, but I doubt this will be a sweeping determination that internal court records are subject to the Public Records Act. (Note: The court record question is not dead. This is squarely at issue in Koenig.)

Congratulations to attorneys James Beck and Ramsey Ramerman on this win.

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The State Supreme Court today unanimously rejected Judge Michael Morgan's stay preventing the release of records from an investigation into his own alleged misconduct. A Federal Way Municipal Court employee complained that Judge Morgan was creating a hostile work environment, prompting the city to hire attorney Amy Stephson to investigate and produce a report. Judge Morgan sued the city to prevent the release of the report; The News Tribune intervened in the suit.

Today's order (PDF)

Argument coverage

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The afterlife of Yousoufian v. Office of Ron Sims continues. In January the Supreme Court ruled in favor of Armen Yousoufian, who sought to obtain records about taxpayer funding used to build the Seahawks’ Qwest Field. Justice Richard Sanders, writing for the majority, said, “The unchallenged findings of fact demonstrate King County repeatedly deceived and misinformed Yousoufian for years.”

Last week, King County asked the Supreme Court to vacate the ruling, arguing that Justice Sanders has his own public records case, and should not have participated.

Now the ruling comes up in the context of a presidential nomination. Critics are asking why President Obama, who pledged “a new era of openness” in his Administration, would tap King County Executive Ron Sims as deputy of HUD with a case like Yousoufian on his record.

The Associated Press ran a lengthy article, local and national transparency advocates had sharp words, and conservative columnist Michelle Malkin blasted Sims as “disastrous” – all because of his role in Yousoufian.

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In 1997, Seattle hotel owner Armen Yousoufian asked for public documents showing the economic impact of building Qwest Field. He got the runaround from King County and eventually sued. Fastforward 12 years, and Mr. Yousoufian has been the state Supreme Court twice (with the most recent ruling last month), and could win a monster payment for the county's "egregious" violations of the Public Records Act. The Seattle Weekly has the story here.

(Full disclosure: the publishers of this blog filed an amicus brief in support of Mr. Yousoufian with the Court of Appeals.)

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