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Home My WebLink About02-24-2014 - Supplemental Materials - Open Gov 101Open Gov 101 Kevissuesfor Elect Officials a Managers In the PRA a OPMA NNOW presented by Ramsey Ramerman • Basic rules of the PRA every employee should know • Understanding the policies behind the laws • Bust common myths • Make you a believer in the benefits of the PRA Few Bad Apples Undermining Public Trust 6Ovrru pti :)ring ch In Califs AmITJ& unargets ,s, tears bu rb a su a PRA & 01'%1 \: ()hail ('m vrnnuont tot I Oltici.il, • Passed by Initiative in 1972¢ • All records of an agency initiative are presumed to be OONMeasure 276. subject to disclosure ampaiFn Finances pisdosur�—� Records Statement for • Agencies must respond �., promptly and provide fullest assistance to requesters . ~ v .r°�• '�sre.R J people of this state do not yield their sovereignty to the agencies that serve them. people insist on remaining informed. chapter shall be liberally construed and its exemptions narrowly construed to promote this public policy and to assure that the public interest will be fully protected. "A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy, or perhaps both." James Madison Step 1 Intake "An agency's compliance with the Public Records Act is only as reliable as the weakest link." P.A. W. S. v. UW, 125 Wn.2d 243 (1994). $90 per day penalty based on non-PRA employee's failure to recognize a request Bricker v. Dep't of Labor & Industry, 164 Wn. App. 16 (2011 • Made to any employee • PRA does not mandate a request take any particular form • Telephone, email, facebook comment • Does NOT have to cite statute or use "magic words" • If someone asks you for records, it is OK to direct them to your PRO, but... ...the burden may be on you to deliver the request to your public records officer No fee for inspection • No charge for search time • May charge the actual cost of copying • Default is $0.15 per page unless agency calculates a higher cost • Actual cost making copies of electronic records • Per -page for scanning costs • No duty to research before you search for records • No duty to respond to information requests • No duty to create records • Be careful before ignoring a request • But .... Ok to ask about the purpose of a request .... .... but the requestor does not have to tell you why they want records Consider asking "why" when a request is: • Vague • Extreme broad • Seeking records you don't think the requestor really wants How you ask can make a difference: Step 2: The Response You must take 1 of 4 actions in 5 days: 1. Deny request 2. Fulfill request by providing documents (may fulfill by providing a link to the document on the web) 3. Reasonable time estimate 4. Request clarification • Size of request • Location of records/number of custodians • Likelihood of exemptions and redactions • Available staff, number of other requests • An agency can revise its estimate 1. All locations and sources you would reasonably expect to find responsive records 2. Re -assess and update search criteria 3. Document your search efforts 4. Agency can be penalized just for not looking hard enough 5. Does not have to be perfect 1. All locations you would reasonably expect to find responsive records; 2. All sources you would reasonably expect to have responsive records or lead to responsive records; 3. For e-records, use most effective search tools included in existing software; 4. Cannot limit search one location or one source if records might be found elsewhere; 5. Update assessment as the search progresses; 6. Follow any obvious leads uncovered during the search; and 7. Search will be judged on a "reasonableness" standard — good -faith effort reasonably calculated to uncover any and all responsive records. Obvious Leads WHICH Records Custodians (employees) Must Search for Records? Will differ with every request HOW Should the PRO Conduct the Search? Must meet with custodians to learn how they organize records WHAT Methods Should Be Used to Locate Records? In -person searches &electronic searches • Over and under inclusive • A lot of irrelevant info • Search may miss relevant info from misspelled words, vague emails, etc. Poorly organized Forgetful May not want you to find something • Emails �` Central server Ries and Drawers Cell Phones Email • Desktops & Laptops • Drawers & Files • Calendars Thumb Drives • PDAs Calendars Cemrai Rle Server • Cell phones • Thumb drives Off -site storage lapreps and Desktops PDAS • Surplussed computers? Step 3: "Public Records" 1. Any writing 2. Relating to the conduct / performance of any governmental or proprietary function 3. Prepared, owned, used, or retained by a public agency "nearly any conceivable government record related to the conduct of government." O'Neill v. City of Shoreline, 170 Wn.2d 138 (2010). Traditional Records • • Letters • • Contracts • • Resolutions • Electronic Records • Emails • Word documents • Spreadsheets • PDFs . Calendars Evaluations Public comment forms Photographs, videos and MP3s Databases Voicemails • Instant messages • Websites If a record is "used" for agency business, it is a "public record" even if it is located on: • home computer • personal cell phone • private email account Don't mix business with pleasure! • Remote access • Delete duplicate copies • Maintain records in easy consistent place • Documents that don't relate to the conduct of government • Personal correspondence, calendars, phone messages, etc. • BUT, if the documents are used for discipline purposes, they will become public documents • Records not in the possession of an "agency" (e.g. court records) NOTE: definition of "public record" is not a separate grounds for redaction as an exemption An agency "uses" a record if: 1.the agency reviews the record and 2.there is a nexus between the record and the agency's decision -making process Even if the agency does not retain a copy!! Concerned Rate Payers v. PUD of Clark County: Reviewed blueprint and decided not to purchase turbine Agency can only withhold a third -party record if an exemption applies Nondisclosure agreements are unenforceable if no exemption applies What can you do? Promise to give notice before disclosing But they have to sue you and requestor to stop disclosure You do not want to assert someone else's record is a "Trade Secret" • "Unknown unknowns" • Kept Confidential? • Cost to create? • Value to company? • Burdensome, fact -specific proof • High attorney costs to prove • If you lose attorney fees x2 WARN ING MYTH 140e PRA IMMUNITY FOR GOOD .. •+ FAITH RELEASE J No liab [lity or cause of action for release of records in good faith. RCW 42.56.060 No agency liability for fees or penalties if court rules records not exempt Confederated Tribes v. Johnson, 135 Wn.2d 734 (1998) Step 4: Retention • If the record isn't create, you don't have to produce it • If you know where you put it, it's a lot easier to find • If you've properly deleted it, you won't have any liability under the PRA ... ... as long as there was no pending request!! Two Sides of One Coin • Neighborhood Alliance v. County of Spokane, 153 Wn. App. 241 (2009) • O'Neill v. City of Shoreline,145 Wn. App. 913 (2008) • BIAW v. McCarthy, 152 Wn. App. 720, 218 P.3d 196 (2009) RCW QmUm060(1) "Any destruction of official public records shall be pursuant to a schedule approved under RCW MmUm050m" RCW 40ol6mO10 "Every person who shall willfully and unlawfully remove, alter, mutilate, destroy, conceal, or obliterate a record ... is guilty of a class C felony" For the purposes of retention and destruction, two criteria: 1. Regardless of format; 2. Made or received in connection with the transaction of public business (RCW 40.14.010). • A legal document • Approved by the Local Records Committee • Specifies required minimum retention periods for records series and • Gives agencies ongoing disposition authority after those retention periods are met. • Where do you find them? www. sos. wa. pov/archives/RecordsRetentionSchedules. asp) Records Series — which are based on the content and function of a record — determine a record's retention value. For non -archival records: 1. Retain for the minimum retention; THEN 2. Destrov. DO NOT DESTROY If Pending PRA Request RCW 42.56.100 • Records listed on retention schedules as Archival or Potentially Archival must not be destroyed. • 2-5% of records Agencies must either: a) Keep the records themselves indefinitely; OR b) Contact Washington State Archives for appraisal and/or transfer. • Electronic records must be retained in electronic format ... for the length of the designated retention period. • Printing and retaining a hard copy is not a substitute for the electronic version. i(WAC 434-662-040) Metadata from "born digital" records often can establish authenticity of the record. Metadata is lost when you print the record. Where does the agency "transaction" occur — on paper or in the electronic record? Born digital: email or spreadsheet v. Not born digital: signed letter or signed minutes Disorganization is an invitation for errors Fewer records means less errors • Delete records if retention value has expired • Digitize paper records with proper organization • Transfer to archivist so it's someone else's problem Step 5: Exemptions Entire purpose of the Public Records Act is to allow secrecy where it benefits the public BUT.... Every time you withhold a record, it harms public trust Specific Exemption Required Exemptions must be narrowly construed to serve the public interest Redact rather than withhold Information The Ginseng Exemption: o " e s. f f a'ZA ti p x a � x PRA t OPNIA: Open nmrnt tot I ICCt,d OtIi,iak ricultural disclosure exemptions • Prevent unfair competition •Encourage participation in voluntary programs designed to protect public health and Washington economy 1. Commercial Interests "Sure you can show my records to all my competitors, no problem!" E.g., farm plans, economic development agencies, safety commissions, etc. 2. Taxpayer Interests "Just open up the taxpayer's checkbook please." Agency bargaining power, e.g., buying and selling real estate 3. Efficient Administration "I can't work under these conditions!" 4. Public safety "Are the police investigating my grow operations?" E.g., investigative files, vulnerable infrastructure 5. Personal Privacy "The basic purpose and policy ... was to allow public scrutiny of government, rather than to promote scrutiny of particular individuals." Tacoma Public Library v. Woessner, 90 Wn. App. 205, 218 (1998) E.g., confidential information in employee files, victim information in police reports There is no "Privacy" exemption RCW 42.56.050 is a definition that only applies when a statutory exemption references privacy RCW 42.56.050 serves to limit privacy Right to Privacy is defined by RCW 42.56.050 Would be highly offensive to a reasonable person R.Mrs is not of legitimate concern to the public Agencies must allow records to be examined "even though such examination may cause inconvenience or embarrassment to public officials or others" RCW 42.56.550(3) PRA-OPNIA: Ohcn (,momment tnr I Icctcd (Wiiial� Only assert an exemption if nondisclosure serves the public interest "how would it look if this document was leaked or inadvertently disclosed ?" If you would be proud to explain how nondisclosure served the public good, then withhold if an exemption applies If it makes you cringe, then disclose almost every time Step 6: Employment Records Employment Application for Personnel Action Forms Documentation Employment (shows history of salary increases) • (includes employment testing, (resume & cover letter) questions and scores) Performance Evaluations • Disciplinary Notices (and related performance improvement plans 4lk Harassment Complaints • (documentation of complaints made by employee) Payroll and Benefits • (documentation containing personal information) Disciplinary Notices • (and related performance improvement plans Medical file • (documentation regarding leaves of absence taken and disability accommodations granted Letter of Termination • Settlement Agreement • (related to termination) Supervisor's file • (related to employee) Cannot expand secrecy by agreeing by contract to keep something secret Confidentiality agreements, union confidentiality clauses are ineffective No secret files There is no way to isolate a file from inspection by marking it "confidential" or by storing it in a special location Provide Notice of Request to: •Employee • H R Staff •Agency council & management •IT Staff •Union? • applications for public employment (including the names of applicants, resumes) and • other related materials submitted with respect to an applicant • Contact info: personal phone number, address, personal email address and details about an employee's dependents • Must be in file or employment related records Salaries and Paid benefits are public information always subject to disclosure • Vacation/sick time awarded • Travel, insurance • Dependents • Employer contributions to retirement • DRS copies? "voluntary" benefits: use of vacation, sick time, employee contributions to retirement, donations DO NOT PRODUCE* *Exception? - What if it is related to discipline? Text "calling in" sick"? Doctor's note? Request for FMLA leave**? *Type of record NOT determinative Key: "highly offensive to reasonable person" **Medical records produced to justify FMLA exempt Performance Evaluations Usually Exempt under RCW 42.56.230(21 Bellevue John Does v. Bellevue School District, 164 Wn.2d 199 (2008) Production of performance evaluations is presumed to be highly offensive within the meaning of RCW 42.56.050 No legitimate public interest in these evaluations Any public interest is outweighed by public harm from lower moral, less candid reviews Sustained misconduct imposed discipline must be produced Accusations of misconduct by public employees & Records related to investigations of those accusations Are subject to disclosure with three narrow exceptions Exception 1: Harassment Complaints Exempt Informal Harassment Complaints through established process Active investigations of harassment RCW 42.56.250(4) & (5) Exception 2: Active Investigation of Commissioned Law Enforcement Officers Exception 3: Certain "Unsubstantiated" Claims can be redacted Identifying information only Egregious allegations only What is "identifying information"? • Name • Photograph • Address • Phone number • Employee number • Other? 1. Does document relate to a specific incident or general critique? 2. How was issue raised: annual review or outside standard course? 3. How was incident used: in discipline proceedings or to help improve behavior? 4. Was the employee penalized for the incident in any way? 5. Was the incident the type of incident that has regularly been included in a review? 6. How is the incident described? 7. Is the feedback in the review linked to improving performance in the future? 8. How unique was the incident? w$A tjM•$IRN SEND Pqg Give the public a clear view when you are keeping secrets • Comply with existing requirements: Exemption logs, notice requirements • In addition to citing legal justification, also educate public on policy considerations • Narrowly construe exemptions to serve public benefit • Admit mistakes in public manner • For high profile cases, bring additional transparency & engage media "Any person who prevails against an agency in any action ... shall be awarded all costs, including reasonable attorney fees, ...." RCW 42.56.550(4) • $0 to $100 per day per request • Two Step: Number of Days x daily penalty • Not Mandatory but ... • No proof of damages required • $0 per day for good faith only • Attorney fees and costs • DSHS $649,896 • Mason County $175,000 & $135,000 • City of Monroe $157,000 • Dep't L & I $90 per day • City of Shoreline $532,000 • Jefferson County $42,000 Open Public Meetings Act loin OPMA Compliances - the Three Essential Reminders po 'IP� 01 Can tr`e The Open Public Meetings Act applies to " meetings" of " governing bodies" of public agencies & sub -agencies -#I �0,C44ea " a O&A., urge RCW 42,30.020 (41 . t} `• add The governing body does NOT need to take a "final action" to trigger the OPMA requirements "Committee thereof'_ "governing body" when the committee acts on behalf of the governing body or gathers evidence "Action" is broadly defined as "the transaction of the official business of a public agency by a governing body including but not limited to": ■ receipt of public testimony ■ deliberations ■ discussions ■ considerations ■ reviews ■ evaluations ■ final actions Majority Discussing Official Business Regular meeting Special meetings Emergency meeting Workshop Retreat Subcommittee meeting Conference Training Session Holiday party Bus rides Pre -meeting dinners Post -meeting drinks Community Event Serial meetings A "serial meeting" is a series of communications that individually do not include a quorum but collectively do involve a quorum. • "Update" meetings with staff • Phone tree exchange • Calls to "set the agenda" • Email exchange • Exchanges comments on a social networking site IF it involves a majority of the governing body providing substantive input ■ Does not have to be listed on agenda (but should be) ■ Presiding Officer announces: ■ Purpose for executive session ■ Must be one of allowable reasons for an executive session ■ Recommend citing specific statutory authorization ■ Time when session will end ■ To extend time, announce to stated time #3 i Calling an Executive Session ■ Discussion of topic for session only allowable action ■ No votes or secret ballots —even straw votes & nonbinding votes are proh;"; ��' ■ Exceptions? Litigation ? Real estate acquisition or sale? ■ Confidential? RCW 42.23.070 Personal Privacy Commercial Efficient Gov't Taxpayer Public Safety • Review complaints or charges brought against a public officer or employee (.110(1)(f)) ➢ At accused's requests, discussion must be in open session 7- 11-11CM,('�`�, -- S._ _ .. 1leetink dale: objerls'ro tk Diseossed (NO -FINAL 4C77ON`) Nam! Gt O'd "hied idenlirled in R(1% 42-30.111 of Orscu+, "WhOn at)crting nnuun;ll cerunn I I luI I H I) tan tN• di¢to¢¢ed in r¢rcuti¢e se¢¢inn, itrm `Uis u.x lea,e ur omru»... r..._, _ aU • Discuss matters affecting national securit7TW4Q(1)(a)) 11161) rl Rv, ouu_slnmla hem pr1 I 1 ,-•I llullxlil R c`Ih' I I i 111 I11 pllir enyd ,na'nl 11I�N lxun _... _.. _. mm,cr 1 public em I -.. . Ha, an ilu:tll lirnlii nl, �rf inn. �I ( I I IIN I N��II • Dn, flare lnr aplxrinunem to alraY i,r oOin�`11In11NhU •�IIa I Ih IgaI u I (IIINI)I i)I 1 III rla 1 I � III Ih I D auss le, 31 (.A. of plaalura S 1 cuun¢r1 ' 1 I Inl I ton - •.p `� °I xprc,�,,.rJ nrnon „ith4d roan I`I Ilullxin cos. 01 II n, c h Inc aau 1 y` �• 5landalon I cxhr, I 1 1 IK, nut A Icrl to the OP\I,\:. - - I setunsr Se¢swn 7opielsl lnnounred nonnR Open �nsion O ¢es O m1 �' Irotic& la, uu.rl prrx•rn lul c�rnrtnr.a•,+icm • Discuss enforcement action with legal counsels (.110(1)(1)) • Discuss current or potential litigation with legal counsels (.110(1)(i)) • Discuss legal risks of current practice or proposed action with legal counsels (.1100 )(i)) ut suos¢ions are-arwntiat. 70 .............. "W"o ni anmplrtcJ L, I )Jlr • Invalidate final actions • $100 personal penalty • Recall • Public Trust Open Government Laws are meant to build public trust, so public perception matters • Excessive numbers of executive sessions • Decisions made without discussion • Social gatherings after meetings • Retreats out of your agency's jurisdiction All create suspicion and undercut the benefit of Open Government Laws Questions? �0��Oi AN$4:)/ t ' e% w% n d"%i 7 "D .% IP" d% ysr n sft .. it. M WAPRO Former President 2 425-257-7009 ® RamseyRamerman@gmail.com