PUBLIC RECORDS EXEMPTIONS ACCOUNTABILITY COMMITTEE

(Sunshine Committee)

Meeting Minutes

March 19, 2013

Members Present: JudgeMichael Schwab, Ret. (Chair), Tim Ford, Rep. Jeff Holy, Ramsey Ramerman, Rep. Larry Springer, Frank Garred, Hon. Peter Holmes, Sen. Pam Roach,Rowland Thompson

Members Absent:Roselyn Marcus, Lynn Kessler, David Zeeck

Staff Present:Rebecca Podszus, committee staff; Diane McDaniel, committee counsel

1) Call to Order

1.1) Introduction/Roll Call and Establishment of Quorum

Chair Schwab called to order the Public Records Exemptions Accountability Committee Meeting at 9:00am, March 19, 2013 at John A. Cherberg Building, Conference Room ABC, Olympia, WA. Seven out of thirteen members were present at beginning of meeting. Senator Pam Roachand Rowland Thompson joined the meeting shortly after its start.

1.2) Adoption of Agenda for March 19, 2013

Motion: To adopt the March 19, 2013 Public Records Exemption Accountability Committee agenda. Moved by Rep. Springer and seconded by Rep. Holy. Agenda approved unanimously.

1.3) Review and Approval of the October 16, 2012 Meeting Minutes

Motion: To approve October 16, 2012 meeting minutes. Moved byFrank Garredand seconded by Rep. Springer. Meeting minutes approved unanimously.

Revision of Agenda
Chair Schwab would like to accommodate members of the public who are in attendance to testify on agenda items under new business. There was no objection to skipping over old business on the agenda.

3) New Business

3.2A) Investigative Exemption – RCW 42.56.240(1),(2)

Tim Ford introduced the exemption. It is one of the original exemptions created in I-276 approved by voters in 1972. Subsection one makes intelligence information and investigative files essential to law enforcement exempt from disclosure. Subsection two makes victim and witness information exempt from disclosure.
Chair Schwab inquired how the exemption creates problems for citizens. Tim Ford describes how this exemption is one of the most highly litigated exemptions.

Tim Ford’s written proposal is limited to clarifying subsection two related to victim and witness information. The statute allows that information to be exempt upon request of the victim and witness but a separate sentence indicates that it is exempt if disclosure would endanger any person's life, physical safety, or property. Tim’s proposal suggests a request for anonymitybe made in writing.

Ramsey Ramerman states there are ambiguities, the case law isn’t clear, there are undefined terms, and agencies balance public safety and disclosure concerns. Agencies incur penalties if they misinterpret the exemption in favor of non-disclosure to protect public safety. Ramsey’s proposal on subsection one intends to codify existing case law in clear language. Ramsey’s proposal on subsection two is more substantive to protect victim and witness safety based on a reasonable determination by law enforcement.

Public Testimony on Proposals:

Pam Loginsky, staff attorney at WA Association of Prosecuting Attorneys – likes most of Ramsey’s proposal. Loginsky discussed a topic not addressed in the drafts which under RPC 3.8 prosecutors (and law enforcement) are prohibited from making disclosures that would prejudice a witness and may cause change of venue. Loginsky sees a need for clarification.

Deborah Boe, Kitsap County Deputy Prosecuting Attorney – advises Sheriff’s Office on public records, states there is ambiguity and public records officers may not be aware of case law, and that clarity would be good for agencies, citizens, and media to reduce tensions.

Mitch Barker, Executive Director of WA Association of Sheriffs and Police Chiefs – requests are a huge burden and need to make the law clear because most agency employees working on disclosure are not attorneys, and clarity would be good.

Question from Committee Member Frank Garred – How would these changes benefit the public? Loginsky – Victim or witness would have more protection, trials would remain in the community, and the perpetrator could be held accountable. Boe – Public is confused, assumes a conspiracy if they can’t obtain public records where an agency is unable to provide a disclosure date because there are too many factors that may require non-disclosure.

Question from Committee Member Pete Holmes – Are the two written proposals addressing different issues? Ramsey - Ramsey’s proposal addresses both subsection one and two while Ford’s proposal addresses just subsection two. Pete Holmes states it would be a huge savings on litigation costs to clarify the law.

Rep. Springer – Confirms that the Legislature would have a paramount interest in protecting both the safety of victims or witnesses and also protecting the public’s right to access. Rep. Springer thinks we can find a middle ground.

Sen. Roach – Doesn’t want to close everything up and there has to be a right to know offenders and what they have done to protect the public from future harm. The legislature in its sincere desire to protect the victim may make it easier for a predator to roam and commit other crimes.

Toby Nixon, President of the WA Coalition of Open Government – supports clarifying the exemption and there are different applications across the state. Temporal issues of disclosure are of concern and not addressed in Ramsey’s proposal. May witnesses request anonymity after a request is made? Subsection two references the “commission” which requires an editorial change to “Public Disclosure Commission” or could be moved to Ch 42.17 RCW. Toby believes common ground may be reached.

3.2C)Concealed Pistol License Applications – RCW 42.56.240RCW 9.41.070

Pete Holmes introduced the exemption and explained it was initially introduced two years ago without the committee making any recommendations. Pete states the issue is timely in light of shootings in Sandy Hook and Café Racer. WA is a “shall issue” state, there is no discretion unless there are documented mental health records.

Question from Committee Member Rep. Springer – What is the current law with regard to CPL’s? Ramsey Ramerman– Applications are made exempt but there is ambiguity over whether the permit is exempt. There is disagreement among advisors to law enforcement. Information is available to law enforcement not the public.

Chair Schwab asks how the committee would like to move forward with this exemption. Sen. Roach would not like the committee to discuss this exemption, states the timing is suspect and political.

Public Testimony – Nick Smith, Open Carry gun activist and objects to Seattle’s political attempts to prohibit firearms in public parks. Nick states the purpose of the Public Records Act is to scrutinize government not the public. Overturning the exemption would do the opposite. It is to root out government fraud and waste, not to expose the public. Law enforcement deputiespolice officers have CPL’s. There should be no special exemption for government employees that is not available to the public. Information on CPL is private. Disclosure would be a roadmap to theft.

Question from Committee Member Ramsey Ramerman - Supports the exemption but sees inconsistent application but would you support legislation clarifying that both the application and permit are exempt? Nick Smith – The application and license are the exact same thing. The license is perforated and comes out of the application.

Testimony from Bruce Tanaka, Program Manager for Firearms Unit with the Department of Licensing – There are two separate forms. There is an ambiguity.

Question from Committee Member Sen. Roach –Have you had complaints? Tanaka – recently spoke on the phone with law enforcement agencies on questions over what could be shared. Sen. Roach would like to see written manifestation how this issue has been brought to DOL’s attention, and recommends the exemption come off the agenda.

Rep. Springer comment – It seems logical to clarify what is public so that we don’t end up like NY.

Sen. Roach makes a motion to table discussion on this exemption. Tim Ford seconds the motion. Ramsey Ramerman discusses the motion and favors clarifying the law. Sen. Roach responds that nothing can happen legislatively until next February. Rep. Springer agrees but wants it to stay on the agenda and have the committee use its process.

Vote on the motion: Two in favor, five opposed; motion fails.

Recess for fifteen minutes.

3.2B) Sex Offender Information – RCW 4.24.550

Introduced by Tim Ford. RCW 4.24.550 relates to sex offender information which may be released to the public depending on criteria set forth in statute. State law requires sex offenders to register their residential address with law enforcement. RCW 4.24.550 provides authority to law enforcementfor determining whether that information should be released. Tim Ford was contacted by Dr. Ray Tolcacher to seek a legal opinion on whether the information is disclosable under the Public Records Act.
Public Testimony - Ray Tolcacher, Superintendent of Prosser School District; Kurt Hilyard, Superintendent of the Union Gap School Distrit; Mitch Barker, WA Sheriffs and Police Chiefs

Prosser School District has about three thousand students. Safety and welfare of students is a primary concern and the district conducts background checks on all persons employed by the district. Registered sex offenders living in the district present a safety risk. The district has a policy requiring the superintendent to serve registered sex offenders in the district with a notice of “no trespass” to keep offenders off school property. The district has a process for individuals served with a “no trespass” to legally appeal to superior court. Law enforcement did not disclose residential addresses to the District and therefore the Superintendent was unable to serve the notice of “no trespass”. Tim Ford provided informal written guidance on whether RCW 4.24.550 exempts sex offender information from disclosure which is part of the agenda materials.

Discussion

Chair Schwab – Did law enforcement provide legal authority? Tolcacher – They did cite to RCW’s. Chair Schwab – Were there any legal restrictions for the sex offenders in the district? Tolcacher – Usually for twelve months there is a probation period but other offenders are not on supervision.

Kurt Hilyard – We don’t need the specific address if the Sheriff is willing to personally serve the sex offender. Tim Ford – Sheriff felt they had authority to disseminate information according to statute. Have you had complaints? Tolcacher – After receiving Ford’s informal opinion the Sheriff offered to disclose information.

Rep. Holy – Is this policy for Level 1, 2, or 3 offenders? Tolcacher – All three levels. Jeff Holy – Is level 3 information currently allowed to be publicly disclosed? Barker – Yes, but not certain that the residential addresses may be disclosed for others. There would be no need to serve a “no trespass” if there is a release condition on the judgment and sentence for a sex offender. Chair Schwab – Except that these superintendents want to proactively serve the “no trespass” notices on all registered sex offenders. Rep. Holy – What are you attempting to accomplish? Tolcacher – We want clarity on whether the information must be made public by law enforcement. I think school districts should be able to obtain this information or have a law enforcement serve the offenders on behalf of the school district.

Rammerman – What would the additional burden be on law enforcement to serve offenders on behalf of the district? Barker – There is a burden and it will vary depending on jurisdiction. I am not sure this is best practice to be doing this proactively, and certainly not with Level 1 offenders. The harder you make it to reintegrate offenders the more likely offenders will become transient then none of us know where they live. If we give specific address information then school districts will have a public record of it. Sex offenders are hunted and killed by vigilantes and we can’t lump all offenders as the same. WASPC would be opposed to changing the exemption.

Hilyard - Yakima County has approximately 850 registered sex offenders. Schools have locked doors, video cameras, silent alarms, and security passes. System tells us who is in the building and checks with national database to determine whether visitors are registered sex offenders. I have individuals who will not enter the building because they have to go through this system. Schwab – Did you receive a similar response as Tolcacher? Hilyard – Yes, almost identical with reference to RCW 4.24.550. I suggest the best solution is to have law enforcement serve these notices on behalf of the district.

Ford – The RCW is awkwardly drafted and doesn’t make clear whether offender information is exempt from disclosure. Rammerman – We should work to clarify the law. Tolcacher – Only two school districts with this written policy. Margaret Pak, private attorney representing ACLU – ACLU has no position on this exemption.

4) Public Comment

Margaret Pak, ACLU – Both Ramerman and Ford proposals on the investigative records exemption were silent on the privacy prong. ACLU believes there is room for improvement and would propose a balancing test between legitimate interest for individual privacy and government oversight. Under current law courts apply a bright line rule where disclosure of redacted documents is possible but redactions may not be sufficient to protect privacy.

ACLU does not endorse either proposal. It should not be up to government to determine whether there is a reasonable danger to witness or victim. Witness of victim should be able to request anonymity at any time. Finally on the archives proposal ACLU believes 100 year period of non-disclosure is appropriate, not 75 years. Regardless of actual life expectancies people live longer.

Anna Myers –Here to speak about RCW 42.56.300 which prohibits disclosure of archeological sites and information. Lineal descendants or ancestors should be able to obtain that information. My cousin contacted the Attorney General’s office with concerns. Great great grandfather homesteaded property on San Juan Island, over 155 acres. A portion, 2.5 acres was set out as a private family cemetery. Property was in the family for over 100 years. When the last person died the property was probated and the cemetery was not meant to be sold, but it was sold. We are now concerned that graves and other significant native objects must be preserved and are threatened by development. We attempted to obtain information but were denied public records under this exemption.

RCW 42.56.300 is number 162 on committee’s schedule of review.

2) Old Business

2.1) Legislative Update

HB 1298 passed 97-0 in the House. The bill will be given a hearing perhaps with amendments in the Senate. Any amendment which passes the Senate would be subject to concurrence by the house. The three bills in the house were consolidated into HB 1298 but some sections were removed where testimony opposed specific recommendations. The committee should not be judged by how many of its recommendations are enacted into law by the legislature.

Legislature desires technology neutral language. Page 8 of HB 1298, lines 2 & 3 references “email addresses”. That language restricts the bill since in the future there may not be email addresses, and in that case there would be no point of contact. A better choice of terms is “authorized contact information” in lieu of “email addresses”. Motion – Does the committee approve a change of language in a legislative amendment? Unanimous vote to approve language change, motion passed.

2.2) Archives proposal – Previously discussed during public comment.

2.3) Sen. Kline replacement – There is no progress to report at this time.

2.4) Schedule of review – Some exemptions generate controversy. The committee’s job is to review all exemptions. The committee should be aware of the list and plan for action for the remainder of 2013.

4.1 Burdensome Records Requests – Is the process something that can be improved? Ford states a discussion is timely. Toby Nixon, President of WA Coalition for Open Government – make people aware of existing laws which help agencies manage work load. Some agencies have not implemented options existing under the Public Records Act. HB 1128 was opposed by WACOG because it puts the burden on requesters to justify burdensome requests, and subject requesters to a costly lawsuit. I don’t know if it is within the scope of the committee to make recommendations to the legislature if it is not related to a specific exemption. However it would be good to facilitate a discussion. Ramerman agrees a discussion would be good. Nixon – It would be better to have a non-judicial way to resolve disputes. Ford – A special meeting might be appropriate to explore these concerns so that it doesn’t interfere with the review of exemptions during the committee’s regular meetings.

Thompson – It is a 2 or 3 part problem. First, a small set of requesters are seen as abusers, they form intent with a clear chain of connection to an event such as termination as an employee or denial of a right, then they go on to seek revenge against the agency. Those requesters may be dealt with through anti-harassment statutes. Bringing a suit against someone like that – you are actually trying to take away a constitutionally protected first amendment civil liberty. The only times we do that is in a criminal proceeding or civil commitment and the state pays for those proceedings. Second, other requesters may have a dispute with an agency and seek a broad range of records related to a dispute. Those could be settled in court or mediation. Third, the internet has changed everyone’s view of obtaining records, storage of records, and ability to locate records. There is no de-minimus use of these communications systems. We can’t afford to have a city attorney review volumes of records. The records should be turned out unless they are flagged as exempt. There are a wide range of players on this issue and the chances of success in having all the players to attend a committee meeting may be limited because we don’t create law.

5) Adjournment

Chair Schwab adjourned the meeting at 11:30 AM. The next regular meeting is June 18, 2013.

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