This case law synopsis highlights a handful of significant PRA cases decided by the Washington State Court of Appeals and the Washington State Supreme Court in 2018.
Amount of PRA Penalties
In a “win” for small agencies, the Court of Appeals issued its decision in Zink v. City of Mesa, ___Wn. App. ___ (6/14/2018) that allows courts to consider the size and financial ability of a jurisdiction in setting a penalty for a PRA violation. This is the latest in the Zink v. City of Mesa string of court decisions, a dispute which originally commenced in 2003. At issue here was not whether the city had violated the PRA (a previous court decision confirmed that it had). Rather, this appeal focused on whether the trial court’s penalty of $175,000 plus attorney fees and costs was excessive (the city’s position) or improperly reduced (Zink’s position). The court affirmed the trial court’s decision to reduce the penalty award from $352,995 to $175,000 based on the city’s size and annual budget. The court also held that the 2011 amendment to the PRA that reduced the allowable minimum amount of penalties from $5/day to $0/day is remedial legislation so, therefore, can apply retroactively. For more on this case, please see the following blog: Agency Size Can Influence PRA Penalties.
Trade Secrets and the Injunction Standard under RCW 42.56.540
At issue in Lyft, Inc. v. City of Seattle, ___ Wn.2d ___ (5/31/2018), was the trial court’s issuance of permanent injunction at the request of Uber and Lyft, which prohibited the release of the companies’ records regarding rides provided in each zip code in the city. The trial court enjoined the release of the reports, finding they were trade secrets under the Uniform Trade Secrets Act, ch. 19.108 RCW (“UTSA”). The Supreme Court agreed that the reports were trade secrets but found that the trial court had applied the wrong standard in issuing the injunction. The Supreme Court held that the records could only be enjoined from disclosure if they met the PRA standard in RCW 42.56.540: disclosure is clearly not in the public interest and disclosure would substantially and irreparably damage any person or would substantially and irreparably damage vital government functions. The Court remanded the question back to the trial court to apply this standard.
Communications between Two Separate Agencies Protected as Work Product
In Kittitas County v. Allphin, ___ Wn.2d ___ (5/17/2018), the Supreme Court held that, if multiple parties share confidential communications relating to a common claim or defense (the “common interest doctrine”), those communications can remain confidential as work product under RCW 42.56.290. The court held that “a party waives it work product protection when it discloses work product to a third party in a manner creating a significant likelihood that an adversary will obtain that information.” In the case, Kittitas County worked with the Department of Ecology to bring a code enforcement action against Allphin. Email communications between the county prosecutors and DOE regarding the matter were protected as work product under the common interest doctrine since the parties “never created a circumstance in which it was significantly likely that [the adversary] would be able to obtain the work product.”
Elected Official’s Posts on her Personal Facebook Page Not a Public Record
In a fact-specific holding, the court of appeals held in West v. City of Puyallup, 2 Wn. App. 2d 586 (2/21/2018) that Puyallup Councilmember Julie Door’s informational posts about city events and activities made on her personal “Friends of Julie Door” Facebook page were not public records. The court applied the “scope of employment” test, first applied to the PRA in Nissen v. Pierce County, finding that Door did not prepare the Facebook posts at issue “within the scope of her official capacity as a City Council member.” In other words, the posts, though clearly writings that contained some city information, were not “prepared” by the city since Council member Door did not make these posts within the scope of her employment or in her official capacity. Therefore, the posts were not public records.