On March 7, 2008, the Herald-Republic made a motion to intervene in the two criminal actions for the limited purpose of challenging the continued orders sealing the pleadings and other financial documents related to the court-appointed defense costs .... The paper reasoned: "The criminal proceedings have concluded; the defendants' right to a fair trial has been preserved. The public now deserves to know how much the preservation of those rights cost."

Both defense attorneys opposed the motion. Sanchez's attorney argued that it was premature since his client's case was still on appeal and that such disclosure would at least require the permission of the court of appeals. Mendez's counsel challenged the paper's right to intervene at all. Judge Lust agreed with Sanchez's attorney that the motion would require approval from the appeals court.

The newspaper then filed requests pursuant to the Public Records Act with the Yakima County court administrator, clerk of Yakima County Superior Court, and Yakima County's public records officer. When the requests were denied, the paper and the County each sued the other. The trial court found that the PRA did not apply because the records sought were court records.

The State Supreme Court today reaffirms its earlier holding in Koenig, that documents actually held by the judiciary are not subject to the Public Records Act. However, the Court also finds that Judge Lust was free to unseal the records that he had previously sealed because they had no bearing on the decision being reviewed by the court of appeals. The Court modifies its 1979 holding in State v. Bianchi, clarifying that the newspaper does have standing in this case. The Court further holds that all documents held by the County were covered by the PRA and were not sealed by Judge Lust. The Court remands to the trial court and awards costs and attorney fees, but not penalties, to the newspaper.

The Chief Justice wrote the Court's opinion, joined by all the justices save new Justice Wiggins, who did not participate. Former Justice Sanders signed the opinion as Justice Pro Tem. and as to the result only. (briefs, argument)

During a public meeting, Shoreline Deputy Mayor Maggie Fimia referred to an email she had received that alleged misconduct by council members. Fimia mentioned erroneously that the email was sent by Beth O'Neill. O'Neill requested a copy of the email. Fimia forwarded O'Neill a copy of the email without the “to” and “from” lines.” O’Neill then requested all information surrounding the email. An original, unaltered copy of the email string was provided. After the second disclosure, O’Neill requested the metadata (hidden information about electronic documents) from the email chain. Apparently, however, the original email in electronic form was deleted.

O’Neill sued, alleging a violation of the Public Records Act. The trial dismissed the case, but the Court of Appeals ruled that metadata must be disclosed under the PRA. The city and deputy mayor appealed.

The Supreme Court resolved four questions: 1) Is e-mail metadata a public record that must be disclosed under the PRA? 2) Does a request to see an e-mail inherently include a request to see metadata? 3) Did the Court of Appeals err by granting attorney fees? 4) Can a public records request be decided on affidavits alone?

On the first issue, the Supreme Court noted the broad definitions in the PRA that are intended to give the public control over their government. Therefore, “an electronic version of a record, including its embedded metadata, is a public record subject to disclosure. There is no doubt here that the relevant e-mail itself is a public record, so its embedded metadata is also a public record and must be disclosed.”

Second, the court held that metadata must be explicitly requested in order to trigger an agency’s obligation to provide it.

Third, the court remanded the case to trial court to determine whether a violation of the PRA actually occurred, and denied attorneys fees until such a determination is made.

Finally, the court held that the PRA allows a hearing to be conducted based solely on affidavits.

 (briefs, argument)

Today, the Supreme Court holds that the motion for reconsideration did toll the 30-day period for appealing to the superior court. Thus Skinner's appeal was timely filed. The Court further holds that Skinner's service on the city clerk, while not perfect, "was reasonably calculated to give notice to the Commission." The Court of Appeals is affirmed. The decision was unanimous, and Justice Owens wrote the opinion. (briefs and argument)

Burt, et al. v. Dept. of Corrections, et al., No. 80998-4. The Court splintered 4-1-4 today on a question of who is an indispensable party to an injunction filed against the release of public records. Both the ACLU and the Washington Coalition for Open Government filed amicus briefs with the Court.

Prisoner Allan Parmelee had filed a public records request for information about certain prison employees. The employees moved for an injunction against releasing the records, which was granted. Parmelee was not joined to the action and his subsequent motions to intervene and for reconsideration were denied. The Court of Appeals affirmed the trial court.

The Supreme Court reverses the lower courts. The lead opinion, written by Justice Charles Johnson and joined by Justices Chambers, Owens, and James Johnson, agrees with Parmelee that "[i]n essence ... the trial court proceedings were not adversarial in that no party represented his position as the records requester." Parmelee should have been joined as an indispensable party under CR 19. The case is remanded with instructions to join Parmelee and without an award of attorney fees.

Justice Sanders concurs separately, noting that the Parelee's status as a prisoner does not diminish his rights under the Public Records Act. "Although some might not view Mr. Parmelee as the poster child for rigorous enforcement of the Public Records Act," Justice Sanders writes, "we should not cut corners to allow bad facts to make bad law as well." Justice Alexander dissents, joined by the Chief and Justice Stephens and Justice Pro Tem. Elaine Houghton (Justice Fairhurst did not participate). (briefs and argument)

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.

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. 

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.)

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.