Watch argument on Public Records Act in Yakima County v. Yakima Herald
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.
Are courts subject to the Public Records Act?
Argument recap of Morgan v. Federal Way & Tacoma News, Inc., No. 81556-9 & Koenig v. Federal Way, No. 82288-3.
Two cases argued today before the Supreme Court of Washington present a significant question about public access to court records and could result in a major expansion of the state’s Public Records Act (chap. 42.56 RCW).
The Morgan case involves a complaint filed by an employee of the Federal Way Municipal Court alleging a hostile workplace environment. The City of Federal Way hired attorney Amy Stephson to investigate the allegation. Judge Michael Morgan was the focus of the investigation. The News Tribune filed a public record request for Stephson’s report of investigation. Federal Way determined that the report should be released, and Judge Morgan filed suit against the city, seeking to bar disclosure of the report. The News Tribune also intervened. In March 2008, a trial court determined that the document was subject to the Public Records Act, and could be released to The News Tribune.
In a separate case, David Koenig filed a request for records, including records related to the resignation of Federal Way Municipal Court Judge Colleen Hartl, and correspondence of Judge Morgan. The city determined that several court records were not disclosable, asserting that the municipal court is not subject to the Public Records Act. The King County Superior Court agreed, relying primarily on the case of Nast v. Michels, 107 Wn.2d 300 (1986).
The Public Records Act question in both Morgan and Koenig is whether courts fall under the Act’s broad mandate for disclosure of public records. Generally, a “public record” is a writing related to the conduct of government, which is prepared, owned, used, or retained by any state or local agency. In Nast, the Supreme Court held that courts are not “agencies” under the Public Records Act, and that court case files are not subject to disclosure under the PRA.
Judge Morgan argues that the Stephson report is a court record concerning a municipal court judge and is thereby not subject to the PRA. In the other case, Mr. Koenig argues that Nast applied in a limited fashion to case files, but does not exempt a court’s administrative records.
The Office of the Attorney General filed amicus curiae briefs in both cases. In Morgan, the Attorney General argued that the Stephson report falls under the PRA, and disputed Morgan’s claim that the report would be exempt from disclosure under attorney-client privilege or work product. In Koenig, the Attorney General took a more moderate approach, cautioning against a blanket rule on whether courts are “public agencies” under the PRA, and suggesting that the court should offer guidance for when administrative records might be available.
Another wild card in these cases: Justices Sanders and Madsen were both recused, with Judge Joel Penoyar and Judge Kevin Korsmo sitting in as Justices Pro Tem. Justice Sanders has been a consistent vote for open government, and Justice Madsen frequently rules for disclosure, though usually approaching public records cases contextually. I won’t venture a guess on the impact of the two pro tem justices.
The Supreme Court’s ruling in these cases will likely be the final word for some time, considering the fact that the Washington Legislature has not offered any significant clarification on issue in the twenty-two years since the Nast decision.
Video of the arguments after the jump.
Morgan v. Federal Way & Tacoma News, Inc.
John Schochet argued for Judge Morgan, James Beck argued for the News Tribune, and Ramsey Ramerman argued for the City of Federal Way.
Koenig v. Federal Way
William John Crittenden argued for David Koenig, and Ramsey Ramerman argued for the City of Federal Way.
Upcoming petitions for review
The Supreme Court has posted a list of the petitions for review to be considered on April 28, 2009. We will post a summary of each case granted review.
Two cases I'll be watching with particular interest involve claims based on the state's Public Records Act. O’Neill v. City of Shoreline, No. 82397-9, deals with whether an email's "metadata" (the To, From, Date, & Subject fields) attached to a public official's email are subject to disclosure. Also, West v. Port of Olympia, No. 82461-4, asks whether a port must disclose a lease agreement executed with a private company, or does the state's "deliberative process" exemption apply. (Note: my organization filed an amicus brief in support of West, et al., at the Court of Appeals stage.)
King County asks the Supreme Court to vacate Yousoufian ruling
In January the Supreme Court issued an opinion in Yousoufian v. Office of Ron Sims, in which Justice Richard Sanders chastized King County for its failure to comply with the Public Records Act, and provided guidelines for assessing the severity of penalties when a violation occurs.
Last month 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 are now asking the Supreme Court to vacate the Yousoufian ruling. In a motion filed this morning, King County alleges that Justice Sanders “stood to personally gain” from that decision, and asks the court to replace Justice Sanders with a temporary justice to rehear the case.
We hope Yousoufian does not become an unfortunate casualty. The ruling has been hailed by open government experts for providing a much-needed analytical framework for reviewing government responses to citizen records requests. Mr. Yousoufian has been battling King County since the late 1990's, with two Supreme Court rulings to his name already. (Note: We filed an amicus brief in support of Mr. Yousoufian at an earlier stage of the case.)
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.
