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No. 84266-3 SUPREME COURT OF THE STATE OF WASHINGTON

MEREDITH MECHLING, Petitioner, v. CITY OF MONROE, Respondent.

BRIEF OF AMICUS CURIAE EVERGREEN FREEDOM FOUNDATION IN SUPPORT OF PETITIONER

Michael J. Reitz, WSBA No. 36159 EVERGREEN FREEDOM FOUNDATION 2403 Pacific Ave. SE Olympia, WA 98501 (360) 956-3482 Phone (360) 352-1874 Fax Attorney for Amicus Curiae


TABLE OF CONTENTS TABLE OF AUTHORITIES ...................................................................... ii I.

IDENTITY & INTEREST OF AMICUS CURIAE ............................. 1

II.

STATEMENT OF THE CASE........................................................... 1

III. ARGUMENT ...................................................................................... 2 A. This Case Presents an Issue of Substantial Public Interest. ............ 2 B. Agencies are to Provide the Fullest Assistance to Requestors. ...... 5 IV. CONCLUSION ................................................................................. 10

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TABLE OF AUTHORITIES

Cases Building Industry Ass’n of Wash. v. McCarthy, 152 Wn.App. 720, 218 P.3d 196 (2009) ................................................. 2 Hearst Corp. v. Hoppe, 90 Wn.2d 123, 580 P.2d 246 (1978) ....................................................... 5 Lake v. City of Phoenix, 222 Ariz. 547, 218 P.3d 1004 (2009)...................................................... 3 Mechling v. City of Monroe, 152 Wn.App. 830, 222 P.3d 808 (2009) ............................................. 8, 9 O’Neill v. City of Shoreline, 145 Wn.App. 913, 187 P.3d 822 (2008), review granted, 208 P.3d 554 (2009) ...................................................... 2 Smith v. Okanogan, 100 Wn.App. 7, 994 P.2d 857 (2000) ..................................................... 9 Sperr v. City of Spokane, 123 Wn.App. 132, 96 P.3d 1012 (2004) ................................................. 9 Spokane Research & Defense Fund v. West Cent. Cmty. Dev. Ass’n, 133 Wn.App. 602, 137 P.3d 120 (2006) ................................................. 6 Statutes RCW 29A.08.125........................................................................................ 7 RCW 42.56.030 .......................................................................................... 6 RCW 42.56.080 .......................................................................................... 8 RCW 42.56.100 .......................................................................................... 6 RCW 42.56.570(2)(c) ................................................................................. 4

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Rules RAP 13.4(b)(4) ........................................................................................... 2 Administrative Rules WAC 44-14-050(2) ..................................................................................... 5 WAC 44-14-05001...................................................................................... 5 Other Authorities Directive of the Governor, Open Records/Public Records Act (September 18, 2007) .............................................................................. 4 M-10-06, Memorandum for the Heads of Executive Departments and Agencies: Open Government Directive (December 8, 2009) ................. 4 Transparency and Open Government: Memorandum for the Heads of Executive Departments and Agencies. 74 Fed. Reg. 4685 (January 26, 2009) .................................................... 3

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I.

IDENTITY & INTEREST OF AMICUS CURIAE

The Evergreen Freedom Foundation is a Washington nonprofit corporation dedicated to advancing individual liberty, free enterprise and limited, accountable government, and is supported by approximately 5,000 Washington citizens and other individuals. The Foundation believes that state and local agencies exercise their authority by consent of the governed, and therefore have a duty to conduct their activities in a transparent and open manner. Access to public records is an essential tool of transparency that should be protected and encouraged. Foundation staff make almost daily requests for public records, and on more than one occasion the Foundation has been forced to litigate over denials of access to records. The issue of how agencies handle requests for electronic records is one of the most important new developments in the area of open and transparent government operations. For the reasons stated below, the Evergreen Freedom Foundation supports Meredith Mechlingâ€&#x;s Petition for Review.

II.

STATEMENT OF THE CASE

Amicus adopt the Petitionerâ€&#x;s Statement of the Case.

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III.

ARGUMENT

A. This Case Presents an Issue of Substantial Public Interest. This case presents an issue of “substantial public interest that should be determined by the Supreme Court.” RAP 13.4(b)(4). The issue is one that numerous courts, elected officials, and academics are addressing: namely, the implications for government entities operating under public records laws in today‟s Digital Age. The City of Monroe suggests there is no substantial issue presented in Ms. Mechling‟s appeal. Brief of Respondent at 2. This assertion, however, ignores the very real questions government entities and members of the public encounter related to the Public Records Act and electronic records. A review of recent cases and executive actions demonstrates the significant questions surrounding electronic records. Several recent cases have addressed issues related to public records that exist in electronic form. For example, O’Neill v. City of Shoreline, 145 Wn.App. 913, 187 P.3d 822 (2008), review granted, 208 P.3d 554 (2009) (e-mail “metadata” is a public record under the Public Records Act); Building Industry Ass’n of Wash. v. McCarthy, 152 Wn.App. 720, 218 P.3d 196 (2009) (whether e-mail communication between public agencies had been deleted lawfully); Lake v. City of Phoenix, 222 Ariz.

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547, 218 P.3d 1004 (2009) (metadata in a public agency e-mail is subject to disclosure). Likewise, elected officials are recognizing the need for public agencies to modernize their policies vis-à-vis electronic documents. For example, on his first full day in office, President Barack Obama‟s first executive action was to issue a memorandum urging the heads of executive departments and agencies to create “an unprecedented level of openness in Government.” Transparency and Open Government: Memorandum for the Heads of Executive Departments and Agencies. 74 Fed. Reg. 4685 (January 26, 2009). His stated goal was to “ensure the public trust and establish a system of transparency, public participation, and collaboration.” Id. Among other actions, the president directed federal entities to “harness new technologies to put information about their operations and decisions online and readily available to the public.” Id. Pursuant to President Obama‟s memorandum, Peter R. Orszag, director of the Office of Management and Budget, issued a memorandum requiring agencies to take steps toward creating a more open government, including specific instructions for electronic records. For example, agency heads were instructed to improve availability of information online “by preserving and maintaining electronic information”;

to

“publish

information online in an open format that can be retrieved, downloaded,

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indexed, and searched by commonly used web search applications”; and to “proactively use modern technology to disseminate useful information . . . .” M-10-06, Memorandum for the Heads of Executive Departments and Agencies: Open Government Directive (December 8, 2009).1 At the state executive level, Gov. Christine Gregoire has directed agency directors to work with members of the public who seek electronic public records. The governor instructed public records officers to “work with people who request electronic copies of non-exempt public records and, whenever possible, to satisfy these requests.” Directive of the Governor, Open Records/Public Records Act (September 18, 2007).2 Additionally, the Washington Legislature instructed the Office of the Attorney General to adopt model rules addressing, among other subjects, how to fulfill requests for electronic records.

RCW

42.56.570(2)(c). The attorney general‟s non-binding model rules are found at chapter 44.14 WAC. When agencies process requests for electronic records they are instructed to provide the record in an electronic format: Providing electronic records. When a requestor requests records in an electronic format, the public records officer will provide the nonexempt records or portions of such records that are reasonably locatable in an electronic format that is used by the agency and is generally commercially available, or in a format that is reasonably translatable from the format in which the agency keeps the record. Costs for 1 2

Available at: http://www.whitehouse.gov/omb/assets/memoranda_2010/m10-06.pdf. Available at: http://www.governor.wa.gov/directives/dir_07-08.pdf.

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providing electronic records are governed by WAC 44-1407003. WAC 44-14-050(2). Regarding access to electronic records, the attorney general‟s model rules recognize that many records now exist in electronic format. Accordingly, agencies are instructed: 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® 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. WAC 44-14-05001. In sum, the issue public electronic records has attracted intense scrutiny in recent years, and this case is an appropriate subject for Supreme Court review. B. Agencies are to Provide the Fullest Assistance to Requestors. The Public Records Act, found at chapter 42.56. RCW, provides “a strongly worded mandate for broad disclosure of public records.” Hearst Corp. v. Hoppe, 90 Wn.2d 123, 127, 580 P.2d 246 (1978). The chapter is to be liberally construed, and the exemptions for disclosure are to be

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narrowly construed in order to promote the interest of open government. RCW 42.56.030. Moreover, to serve the goal of transparent government, the Act requires agencies to provide “„the fullest assistance to inquirers . . . .‟” Spokane Research & Defense Fund v. West Cent. Cmty. Dev. Ass’n, 133 Wn.App. 602, 606, 137 P.3d 120 (2006) (citations omitted). Agencies are to adopt rules and regulations to provide for “the most timely possible action on requests for information.” RCW 42.56.100. An essential element of full, timely assistance is an agency‟s readiness to accommodate the specific needs of the requestor—including the requestor‟s preferences regarding the format of the records sought. Individuals who request documents under the Public Records Act may seek documents in electronic format for specific reasons. The City of Monroe dismisses requestor preference as a “narrow and administrative” issue, Brief of Respondent at 2, but there are numerous, legitimate justifications for requesting a specific electronic format. For example, agencies can provide electronic records more rapidly than physical documents sent through the mail, which can be of great assistance to members of the news media working on tight deadlines. Some documents, such as financial spreadsheets or databases, are best viewed electronically, allowing individuals to sort and analyze data

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contained within the document. The ease of storage allows a requestor to keep multiple electronic documents on a computer or portable storage drive. These files in turn are more accessible for users in today‟s mobile society. Electronic documents are searchable, giving the requestor the ability to scan large records in pursuit of specific information. Finally, providing records in electronic form can reduce the costs to both the agency and the requestor. The City‟s insistence that agencies can fulfill records requests in whatever format they choose could lead to absurd results. For example, the Secretary of State is charged with maintaining the statewide voter registration database, which contains the name and registration information of every voter in the state. RCW 29A.08.125. This database contains millions of entries. If an agency fulfilled a request for the voter database by printing off the database and providing the requestor with a physical document, it would require tens of thousands of pages and would cost the requestor thousands of dollars. An electronic version of the database can be provided on compact disc (CD) for a fraction of the cost. Ultimately, an agency cannot investigate a requestor‟s motivation for requesting electronic records—the agency‟s obligation is to offer the fullest assistance to the requestor. “Agencies shall not distinguish among persons requesting records, and such persons shall not be required to

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provide information as to the purpose for the request . . . .” RCW 42.56.080. But an agency‟s refusal to provide a document in a requested format may completely frustrate the intent of the Public Records Act. Amicus curiae Evergreen Freedom Foundation has worked cooperatively with many state and local agencies in obtaining electronic records, and has benefited from several options that facilitate swift, costeffective production of electronic records. For example, agencies can send records through e-mail, or copy records to a compact disc, or place documents online using a File Transfer Protocol (FTP) where files are uploaded to a website and are made available for download. These and other options could have been employed by the City of Monroe in response to Ms. Mechling‟s request, and would have satisfied the duty under the Public Records Act to provide the fullest assistance to requestors. Moreover, the advances in technology have made available cost-effective methods for electronically redacting documents, which could relieve the City of Monroe of the need to print records for redaction. In the ruling below, the Court of Appeals fails to apply the duty of full assistance with regard to properly-redacted e-mails. Mechling v. City of Monroe, 152 Wn.App. 830, 222 P.3d 808 (2009). The Court stated: “[W]e reject Mechling‟s argument that the City has an obligation to scan the e-mails to create PDF or TIFF files.” Mechling, 222 P.3d at 818, citing

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Sperr v. City of Spokane, 123 Wn.App. 132, 96 P.3d 1012 (2004) and Smith v. Okanogan, 100 Wn.App. 7, 994 P.2d 857 (2000). These cases do not support the Court of Appeals‟ conclusion. In Sperr, the court merely said a requestor cannot obtain records that do not exist. 123 Wn.App. at 136-37. The court in Smith drew a distinction between a request for information and a request for actual documents. “The Act does not require agencies to research or explain public records, but only to make those records accessible to the public.” Smith, 100 Wn.App. at 12. The erroneous conclusion in the Mechling opinion is that when an electronic record is printed to allow for redaction, the act of rescanning the redacted e-mail would create a record. Thus, goes the Court of Appeals logic, as agencies have no duty to create records, the agency is entirely justified in refusing to accommodate a request that a record be provided electronically. This conclusion leads to absurd results and would undermine the Public Records Act. An agency could abuse the Court of Appeals‟ logic by claiming it has no obligation to print off and redact an electronic record where a portion of the information is exempt. After all, if scanning a paper document creates a record, as the Court implied in Mechling, printing an electronic record in order to redact it also creates a new record. As

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agencies are not obligated to create records they could simply withhold entire documents when only a portion of information within the document is exempt from disclosure. This completely frustrates the intent of the Public Records Act.

IV.

CONCLUSION

For the foregoing reasons, amicus curiae Evergreen Freedom Foundation urges the Court to accept Meredith Mechlingâ€&#x;s Petition for Review.

RESPECTFULLY SUBMITTED this 5th day of March, 2010.

EVERGREEN FREEDOM FOUNDATION

s/ Michael J. Reitz Michael J. Reitz, WSBA No. 36195 2403 Pacific Ave. SE Olympia, WA 98501 (360) 956-3482 Phone (360) 352-1874 Fax Attorney for Amicus Curiae

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