AWPHD Membership Meeting June 28, 2010 Presenters: Joe Levan, MRSC Legal Consultant Pat Mason, MRSC Senior Legal Consultant 1 (206)

MRSC Private nonprofit with state contract In existence since 1930’s State funding – profits from state liquor board and liquor excise taxes Additional funding through contracts Serves city officials, county officials, public hospital districts, sewer and water district association, and Enduris (206)

Programs Inquiries Publications Web Site – Library Training Special Projects (206)

Inquiries Municipal law Management and administration Open Meetings and Public Records Public works and contracting Intergovernmental relations Budget and finance (206)

Publications Free copies sent to customers Ask MRSC – Hospital District Edition e- newsletter Municipal Research News – quarterly newsletter Post-1993 publications on Web (206)

Sample Publication Titles Knowing the Territory - Basic Legal Guidelines for Washington City, County, and Special District Officials Public Records Act for Washington Cities, Counties, and Special Purpose Districts Open Public Meetings Act (206)

How to Reach Us Phone(206) MRSC (6772) Fax(206) Web Mail2601 Fourth Avenue, Suite 800 Seattle, WA (206)

Update on 2SHB SHB 2016 – Made Several Changes to Campaign Contribution/Disclosure Laws, Including Use of Public Service Announcements (ch RCW) PSA provision effective March 25, 2010 (other provisions January 1, 2012) Section 703 prohibits municipal officers ( which include PHD Commissioners ) from speaking or appearing “in a public service announcement that is broadcast, shown, or distributed in any form whatsoever during the period beginning January 1st and continuing through the general election if that official or officer is a candidate.” (206)

Update on 2SHB 2016 (continued) We received an from Nancy Krier (PDC General Counsel) on Monday, June 21, stating: The PDC is continuing its discussion of a possible interpretation concerning the 2010 PSA Law She noted that she had previously corresponded with municipal attorneys on this subject and that some had given input (206)

Update on 2SHB 2016 (continued) She referred to a June 24 Public Disclosure Commission meeting to continue discussion and review and possibly adopt a second draft of an interpretation She indicated that background materials, including a copy of the second draft of the interpretation, are posted on the Commission’s website at under “Commission Meetings” with the agenda for the June 24, 2010 meetingwww.pdc.wa.gov (206)

Managing Electronic Communications & Records Big topic with many facets Focus here on real life scenarios and practical suggestions From the perspective of PHDs as local government agencies Outline Basic Principles Retention and Public Records Act Implications Scenarios (206)

Electronic Records The PRA Model Rules provide (WAC ): The Public Records Act does not distinguish between paper and electronic records. Instead, the act explicitly includes electronic records within its coverage. The definition of "public record" includes a "writing," which in turn includes "existing data compilations from which information may be obtained or translated." (206)

New Retention Rules “Preservation of Electronic Public Records” Chapter WAC (2009 & 2010) Electronic records must be retained in electronic format and remain usable, searchable and retrievable for entire retention period Printing a hard copy not a substitute unless approved by the applicable records committee 13 (206)

Retention Requirements & the Public Records Act A public record – including electronic records – that has retention value under the applicable retention schedule must be securely preserved for its minimum retention period (WAC ) If the record has no retention value under the applicable retention schedule(s), it can be destroyed However, the PHD should confer with legal counsel before destroying records to ensure the record is not needed for other purposes (e.g., potential litigation) (206)

Retention Requirements & the Public Records Act (cont.) Under the Public Records Act, if a record is requested and it exists, the record must be provided unless an exemption under the PRA exists Consider: Exemptions, prohibitions, and redactions If a public record has been properly destroyed pursuant to the applicable records retention schedule(s), and a PRA request is made for such a record, the record does not exist for the purposes of the PRA (206)

Electronic Records Must produce records that are reasonably locatable – one that can be located with typical search features Metadata is likely part of the public record that must be retained and produced for inspection 16 (206)

Processing Electronic Record Requests Basically the same process An agency should provide public records in electronic format if that is requested Technical feasibility is the test May recover actual costs – no charge for sending an unless had to scan document Agency can adopt schedule of actual costs for scanning, etc (206)

Common Types of Electronic Records Electronic documents Electronic copies of documents (e.g., scanned copies) Web pages Social Media Blogs Facebook Twitter (206)

as a Public Record Which s are public records with retention value? messages are public records when they are created or received in the transaction of public business and retained as evidence of official policies, actions, decisions, or transactions Such messages must be identified, filed, and retained just like records in other formats Review list from “Records Management Guidelines and General Records Retention Schedules” (new in 2010) Also review separate Public Hospital Districts Records Retention Schedule - Version 4.0 (March 2009) – currently under review 19 (206)

Social Media Important to consider use of social media by public employees and officials Blogs, Twitter, Facebook Generally posts are public records if they relate to transaction of agency business Recommend adopting agency policy 20 (206)

s & the OPMA Discussion of PHD business involving a quorum of the commissioners must take place in an open, public meeting Serial contacts are problematic “Reply All” is asking for trouble! Providing info, one-way, is OK (206)

OPMA – Meeting Definition Any transaction of PHD business involving a quorum of a governing body What is “transaction” of business? Includes more than decisions Discussions Deliberations Evaluations Receipt of testimony (206)

What is a serial meeting? A “serial meeting” is a series of communications that individually do not include a quorum but collectively do involve a quorum. (206)

Scenario 1: Question: Would it constitute a meeting if there is an exchange between a collective quorum of board commissioners, and the board makes substantive comments on an issue? (206)

Scenario 1: Answer : If a quorum is transacting PHD business, it would constitute a meeting. (206)

Scenario 2: Question: If the PHD used an official social media site to host a conversation about a PHD issue, and that conversation included comments from individual PHD commissioners, would that constitute a quorum? If the PHD “noticed” it, would it be an acceptable public meeting? (206)

Scenario 2: Answer: If the conversation included comments from a quorum of the commissioners, it could qualify as a meeting. There is no clear authority currently under the OPMA to notice a “virtual meeting.” Under current law, social media sites are best used to solicit input from the public, but not for elected officials to formulate policy. (206)

Scenario 3: Question: If a PHD commissioner or employee uses his/her personal address to conduct PHD business, are such s subject to disclosure under the PRA? (206)

Scenario 3: Answer : Yes. If the officer or employee is using a personal account to conduct PHD business, such personal s are subject to disclosure. The definition of “public record” includes records “used” by an agency – the agency does not necessarily have to have a copy of the record. See, Mechling v. City of Monroe, 152 Wn. App. 830 (2009). (206)

Scenario 4: Question: If a PHD official/employee accesses his/her work through his/her personal computer, does the data on the personal computer become a public record? (206)

Scenario 4: Answer : If the official/employee is accessing an agency e- mail account through the internet, the itself is very likely captured on the agency's server. Only the work on your personal computer is a public record. A work or file could be on your personal computer if, for example, you copy a message or file from your agency account to your personal computer. (206)

Scenario 4: (continued) Caution is warranted because if evidence shows that you had a work record stored on your personal computer and you cannot produce that record, there is a risk that your agency may try to (or be ordered by a court to) seize your entire computer to look for that public record. While there may be some constitutional issues with such an action, the Court of Appeals in O'Neill v. City of Shoreline, 145 Wn. App. 913 (2008), ordered a similar action. To limit risk in this regard, if you must save copies of public records on a personal device, maintain a diligent practice of always putting agency records in one location on your computer. (206)

Scenario 5: Question: Is a local government agency required to provide public records in electronic format? (206)

Scenario 5: Answer: If public, non-exempt records are held in electronic format, such as s and other records stored on computers, and if the requestor requests those documents in electronic format, the records should be provided in electronic format, either on a disk or by electronically transmitting the files. In keeping with the spirit of the PRA, to the extent possible and feasible, local government agencies should cooperate in providing the records in the format requested. A jurisdiction can charge for the additional costs incurred in doing customized formatting. See WAC and the comments to that provision, starting with WAC WAC WAC All metadata that is part of an electronic record should be transmitted with the record. See O’Neill v. Shoreline, 145 Wn. App. 913 (2008). (206)

Practical Tips to Avoid Liability Make sure that you have adopted policies to handle public records requests, including electronic records Appoint a public records officer and identify that person for the public as the agency contact Training, training, training Adopt a fee schedule for copying and scanning costs 35 (206)

Additional Resources MRSC Website ( Electronic Public Records Retention Social Media Open Government Advisor MRSC Publications: Public Records Act for Washington Cities, Counties, and Special Purpose Districts (November 2009) 36 (206)

Additional Resources Secretary of State – Washington State Archives website Management – “What should I be doing?” Electronic Records Management - Advice and Resources Blogs / Wikis / Facebook / Twitter / Web 2.0 Management Imaging / Digitization / Scanning Website Management Washington Attorney General’s web site: Open Records & Open Meetings Deskbook 37 (206)

Contact Info Joe Levan, MRSC Legal Consultant (206) Pat Mason, MRSC Senior Legal Consultant (206) (206)

Additional Background & Legal Authorities The following slides are included to provide additional background and legal authorities regarding the information and scenarios discussed in the presentation. (206)

Electronic Records What is an Electronic Record under the Public Records Act, Chapter RCW? Chapter RCW does not define “electronic record” specifically However, “public record” is defined broadly and includes electronic records 40 (206)

Electronic Records What is an Electronic Record under Chapter WAC re: Preservation of Electronic Records? “Electronic record” includes those public records which are stored on machine readable file format. WAC (206)

Electronic Record Model Rules Amended the original model rules Effective July 16, 2007 Primarily WAC through “Processing of Public Records Requests – Electronic Records” Advisory Only 42 (206)

Electronic Records WAC : 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/rs 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. (206)

Electronic Records WAC (continued): In the rare cases when the requested electronic records are not reasonably locatable, or are not in a generally commercially available format or are not reasonably translatable into one, the agency might consider customized access. See WAC WAC An agency may recover its actual costs for providing electronic records, which in many cases is de minimis. See WAC (3).WAC (3) (206)

Electronic Records WAC (continued): What is technically feasible in one situation may not be in another. Not all agencies, especially smaller units of local government, have the electronic resources of larger agencies and some of the generalizations in these model rules may not apply every time. (206)

Electronic Records WAC (continued): If an agency initially believes it cannot provide electronic records in an electronic format, it should confer with the requestor and the two parties should attempt to cooperatively resolve any technical difficulties. See WAC WAC It is usually a purely technical question whether an agency can provide electronic records in a particular format in a specific case. (206)

May Be a Public Record Just a different form of writing – not a separate analysis Treat as any other written document Whether it is a public record is based on content of not fact it is an Individual messages may be public records with legally mandated retention requirements, or may be information with no retention value 47 (206)

as a Public Record If PRA request is made: Does the exist? If yes, is there information in the that is exempt or prohibited from disclosure? If yes, the exempt information can be redacted and/or the information prohibited from disclosure cannot be disclosed If the is requested in electronic format, it is to be provided in electronic format (206)

Exemptions Several exemptions included under the PRA Exemptions are permissive rather than mandatory An agency has the discretion to provide an exempt record 49 (206)

Prohibitions In contrast, there are prohibitions throughout the statutes An agency cannot provide a record when a statute makes it "confidential" or otherwise prohibits disclosure If a statute classifies information as "confidential" or otherwise prohibits disclosure, an agency has no discretion to release a record or the confidential portion of it E.g., the Health Care Information Act generally prohibits the disclosure of medical information without the patient's consent – RCW (1)RCW (1) RCW (2) provides that chapter RCW applies to public inspection and copying of health care information of patients HIPAA also provides specific protections for health care information and records See WAC (206)

Quality Improvement Committee RCW provides an exemption from disclosure under the PRA for information and documents created specifically for, and collected and maintained by, a quality improvement committee RCW addresses meetings, proceedings, and deliberations of a quality improvement committee (206)

Management Source: Washington State Archives s are “born digital” and their metadata establishes their authenticity as a record s need to be retained in electronic format for their minimum retention period according to records retention schedules By printing s and destroying the electronic records you may damage the authenticity of the e- mail Agencies can still print s, as long as the electronic record is retained (206)

as a Record Source: Washington State Archives Not all s are records with retention value Risks with “auto delete” functions “ archiving” is just usually “ storage,” it does not generally contain retention or disposition functionality (206)

Advice from Washington State Archives (206)

Scenario 6: Question: What do you advise regarding employees posting comments on PHD issues on their personal social media sites? We’ve cautioned our employees about speaking for us or identifying themselves as employees when making public statements. (206)

Scenario 6: Answer: Due to the First Amendment, there are not many limits you can put on what employees say on their personal sites. But you can counsel them on the risks to their personal privacy if they start posting too much. This includes strongly encouraging them to post a “disclaimer.” This is an area where you really need specialized legal advice from an employment lawyer. (206)

Scenario 7: Question: How do you retain content and metadata in compliance with the PRA for a continually updated PHD website? (206)

Scenario 7: Answer: There are programs available that will “record” all of the changes. This is one area where local governments could act collectively and more cost effectively to find/build software that could be used by other local governments. (206)

Key Summary Points Social media sites can be public records subject to disclosure Officials and employees should not mix their personal website with PHD business Content posted on social media sites can be subject to retention requirements so post content on the agency website first Avoid online contact with fellow board commissioners Consult with your PHD attorney before you proceed (206)