Thursday, August 7, 2008

So, when is a court rule a violation of the Public Records Act?

In 2002, the Whatcom County Superior Court adopted Order #02-2-00001-7 establishing Judicial Branch Email/Internet Usage Policy. Individuals who violate the order, "whether classified as court personnel or not, may be punished as a contempt of court."

The Public Records Act provides that an agency can refuse inspection or copying of public records based on exemptions found in RCW 42.56 or in any other statute that exempts or prohibits disclosure of specific records.

Thus, 1) if another statute does not conflict with the Act; and, 2) either exempts or prohibits disclosure of specific public records in their entirety; then, 3) the information may be withheld despite the redaction requirements in RCW 42.56.210(1).

The other statutes exemption only applies to those exemptions explicitly identified in other statutes. But it does not allow a court "to imply exemptions, but only allows specific exemptions to stand." Brouillet v. Cowles Publishing Co., 114 Wn.2d 788, 800. 791, P.2d 526 (1990) cited in Progressive Animal Welfare Soc'y v. University of Wash., 125 W.2d. at 261-62).

Why do I raise this issue?

The order applies to all Whatcom County Superior Court and District Court personnel and authorized agents of those courts who are granted computer access to the electronic mail and Internet systems supplied and maintained by Whatcom County.

The order states that the Presiding Judge of the Whatcom County Superior Court and the Presiding Judge of the Whatcom County District Court shall be responsible for the oversight and appropriate use of electronic mail and information systems used by respective court personnel.

The Separation of Powers Application section states that "no person, agency, or entity will, unless with the express written consent of the presiding judge, or a majority of the judges of either the Superior or District Courts, intercept, monitor, read, copy, print, forward or otherwise access court personnel mail or Internet usage."

Granted, access to e-mail regarding cases or individuals being tried should be confidential.

In regards to email/internet usage that is not exempt, a person's right to privacy is defined in RCW 42.56.050. A person's privacy is invaded or violated only if disclosure about the person: 1) would be highly offensive to a reasonable person, and 2) is not of legitimate concern to the public. The provisions of this chapter dealing with the right to privacy in certain public records do not create any right of privacy beyond those rights that are specified in this chapter as express exemptions from the public right to inspect, examine, or copy public records. But the law does not provide for blanket exemptions of all e-mail/internet use by court employees.

Confidential information regarding litigants, witnesses or jurors that has been collected by the court for internal administrative operations should not and is not disseminated to the public.

The Court's order specifies that the use of the system is for County business. But it allows personal use to occur "if it does not impair the system or conflict with duties or work periods."

While access to judicial officer and court employee's e-mail is understandably restricted, nothing in the Court's policy should be used to withhold records which are the subject of the public records act or otherwise available to the public through a public disclosure request.

I hope the Whatcom County Court is not denying legitimate public disclosure requests on the basis of it's judicial branch email/internet usage policy.

If it is, I sincerely hope one our state's non-profit watch dogs challenges them in court for interfering with the public's right to monitor elected officials behavior.

It would be interesting to hear Chuck Snyder and Doug Shepherd's position on the public records act.

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