Washi hing ngton State Archi hives bui uilding in in Oly - - PowerPoint PPT Presentation

Washi hing ngton State Archi hives bui uilding in in Oly Olympia, W Washin ington

City of Tukwila

Open Government Trainings Act; effective July 1, 2014

City Attorney’s Office:  Rachel Turpin, City Attorney  Ann Marie Soto, Assistant City Attorney City Clerk’s Office:  Christy O’Flaherty, City Clerk  Melissa Hart, Deputy City Clerk  Barbara Saxton, Administrative Support Coordinator

Washington State Archives Municipal Clerks Association ARMA International (Association of Records Managers and Administrators NAGARA (National Association of Government Archives and Records Administrators Washington Association of Public Records Officers

Open Government Trainings Act*

 Records retention and destruction requirements RCW 40.14  Public Records Act RCW 42.56  Open Public Meetings Act RCW 42.30

*Engrossed Senate Bill 5964

• 63rd Legislature
• 2014 Regular Session

Effective July 1, 2014

RECORDS MANAGEMENT AND RETENTION

RCW 40.14

Title 40 RCW

Public documents, records, and publications

Chapter 40.04 - Public documents.

Chapter 40.10 - Microfilming of records to

provide continuity of civil government. Chapter 40.14 - Preservation and destruction

• f public records.

(3) "Public record" includes any writing containing information relating to the conduct of government or the performance of any governmental or proprietary function prepared, owned, used, or retained by any state or local agency regardless

• f physical form or characteristics. For the office of the secretary of the senate and the office of the chief clerk of the house
• f representatives, public records means legislative records as defined in RCW 40.14.100 and also means the following: All budget and financial records;

personnel leave, travel, and payroll records; records of legislative sessions; reports submitted to the legislature; and any other record designated a public record by any official action of the senate or the house of representatives.

Managing records means:

• Records are kept for as long as we are

required to keep them.

• We are able to find the records when

they’re needed.

• Records are disposed of appropriately
• nce we are not required to keep them

any longer.

Consequences for destroying records too early:

• Enormous fines assessed by the court due to

failure to produce documents needed to fulfill a public records request or as part of a lawsuit

• The possibility of interruption of efficient operation
• f the City due to the loss of information needed

for decision making and operations

• A loss of continuity in business operations in the

event of a disaster

• Loss of records of historical significance

Typical lifecycle of a record

Creation Distribution & use Storage & maintenance Inactive storage Disposition (destruction or Archives)

Do I need to keep it? How long?

The State has developed a retention schedule that:

• identifies and categorizes many specific types of

documents,

• states how long each one must be retained, and
• gives direction on what is to be done with the

record once that retention period has been met.

Records don’t just look like this anymore.

Type of record Retention period Gift and donation information files (P&R) . . . . . . . . . . . . . . . Until no longer needed Strategic Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Until no longer needed Management of crime prevention programs . . . . . . . . . . . . 1 year after obsolete or superseded Surveillance recordings (if used for security monitoring). . . 30 days IT help desk requests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 year Staff meetings (agendas, minutes, notices) . . . . . . . . . . . . . 2 years Utility meter readings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 years Usage and dispersal records (equipment, fuel, energy) . . . 4 years Water test reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 years Fire Department medical incident reports . . . . . . . . . . . . . . 8 years Litigation files . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 years Major Accident Response & Reconstruction (Police) . . . . . . 50 years Payroll registers (and time cards) . . . . . . . . . . . . . . . . . . . . . . 60 years Personnel files (employees and volunteers) . . . . . . . . . . . . . 6 years after termination Application for a building permit . . . . . . . . . . . . . . . . . . . . . . 6 years after life of building Conditional Use Permits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Life of the agency Records relating to the destruction of public records . . . . . Life of the agency Manhole records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Permanent

Retention Period Examples

Do you have a City record? We must:

• retain it for the time period required by law
• be able to produce it if needed
• be able to provide proof of how and when

it was disposed of

Proper disposition of records allows us:

• to track which records have been stored,

destroyed, or turned over to the State

• to provide documentation of how and when

a record was destroyed in the event of a public records request or lawsuit

All public records shall be and remain the property of the state of Washington. They shall be delivered by outgoing

• fficials and employees to their successors and shall be

preserved, stored, transferred, destroyed or disposed of, and

• therwise managed, only in accordance with the provisions
• f RCW Chapter 40.14.

Records Management: What is Tukwila doing?

 Implemented a records orientation training program for City staff in 2011, as well as a supplemental training relating to the destruction of electronic records.  Provides resource material for staff on TUKNET.  Monitors updates or other changes to the State Records Retention Schedule and distributes information to staff.  Coordinates with the City Attorney’s Office on the status of Legal Holds.  Evaluates new technologies under consideration by the City to identify potential implications relating to how electronic records would be retained, produced and disposed of during their lifecycle.  Adopts policies as needed, including those relating to retention of closed contracts and security camera monitoring footage.  Facilitates and manages microfilming and/or digitization of “Essential Records.”  Coordinates transfer of records designated as “Archival” to the State Archives.  Develops resource materials and supplies to respond to a potential disaster affecting City records.

PUBLIC RECORDS ACT

RCW 42.56

• “The people do not yield their sovereignty to the

agencies which serve them.”

• “The people, in delegating authority, do not give public

servants the right to decide what is good for the people to know and what is not good for them to know.”

• “The people insist on remaining informed so they may

retain control over the instruments they have created.”

~ RCW 42.56.030

Writing

 “Writing” includes “handwriting, typewriting, printing, photostating,

photographing, and every other means of recording any form of communication or representation including, but not limited to, letters, words, pictures, sounds, or symbols, or combination thereof, and all papers, maps, magnetic or paper tapes, photographic films and prints, motion picture, film and video recordings, magnetic or punched cards, discs, drums, diskettes, sound recordings, and other documents including existing data compilations from which information may be

• btained or translated.”

~ RCW 42.56.030

 So, “public record” is broadly defined.

WAC 434-662-040 Agency duties and responsibilities. “Electronic records must be retained in electronic format and remain usable, searchable, retrievable and authentic for the length of the designated retention

• period. Printing and retaining a hard copy is not a

substitute for the electronic version unless approved by the applicable records committee.”

O’Neill vs. City of Shoreline, Case No. 82397-9 (Oct. 7, 2010)

Identifiable Public Records

May 24, 2014 Attn: Human Resources I would like to know how the city handles employment discrimination

• claims. Please advise at

your earliest convenience. Ann Smith To: City of Tukwila Date: June 1, 2014 I would like to receive a copy

• f the city’s policy for handling

employment discrimination claims. Thank you. Paul Jones

The second request is for an “identifiable public record.” The first request is for information.

Work with requestors

Seek clarification:

 To provide the fullest assistance to requestor.  Results in prompt disclosure by identifying

• nly desired records.

 Means the requestor receives and pays for

• nly those records requested.

Manage broad requests:  Work with requestors to narrow the scope.  Tell them about potential costs and deposits.  Supply records in installments.

Agency Responses to Requests

Within 5 business days, the City must:

• 1. Make the record available for inspection or copying.
• 2. Provide an internet address and link on the agency’s website to the

specific records requested.

• 3. Acknowledge that the request has been received and provide a

reasonable estimate of when records will be available.

• 4. Deny the request and provide a statutory reason as to why the request

is being denied. An agency can seek clarification of a request if it is not reasonably clear, or does not request “identifiable records.”

~ RCW 42.56.520

Estimate of Time for Further Response

 Factors for needing additional time may include:

 To get clarification if necessary.  To search for records. More time may be needed if a request is large or complex.  To assemble and review records.  To provide notice to affected third persons/agencies if necessary.  To prepare an exemption log if necessary.  To perform other essential agency functions, considering agency resources including staff availability.

 An agency can provide an estimate of time for further response.  Estimate is to be reasonable.  It is a good practice to briefly explain why more time is needed to process a request. If challenged in court, it is an agency’s burden to show why an estimate of time is reasonable.  An agency can extend the time if needed. Again, it is a good practice to explain why.  If an agency can’t produce all the records at once (particularly for large requests), an agency can provide records in installments.

~ RCW 42.56.520, RCW 42.56.520, RCW 42.56.080, RCW 42.56.550

Searches

 An agency should read the request carefully to understand

what records are requested.

 Clarify the request if needed.

 An agency can also ask the requestor to suggest search terms.

 An agency must conduct an adequate search for responsive records.

 Consider all formats (paper, electronic, etc.)  Consider records of current staff/officials, and former staff/officials, if potentially responsive.  Consider possible locations (e.g., file cabinets, agency website, audio files, etc.)

 The search should be reasonably calculated to uncover responsive records.

 The search should follow obvious leads to possible locations where records are

likely to be found.

 It is a good idea to document search efforts (locations, search terms used, etc.)

The agency bears the burden of proof to show the adequacy of the search.

~ RCW 42.56.520

Exemptions

 Records are presumed open.  If a record, or part of a record, is withheld from the public, the agency

must cite to an “exemption” in law and give a brief explanation.

 Exemptions are narrowly construed.  The general rule is the agency withholds only the exempt information,

and releases the rest.

 Exemptions must be authorized in law – in the Public Records Act or

• ther laws.

~ RCW 42.56.050, RCW 42.56.210 - .510, RCW 42.56.550

Common Exemptions

 Personal information maintained in files for employees, appointees, or elected officials of any public agency to the extent that disclosure would violate their right to privacy  Information on a child enrolled in a public or nonprofit program serving or pertaining to children, adolescents, or students, including but not limited to early learning or child care services, parks and recreation programs, youth development programs, and after-school programs  Attorney-client privileged information  Intelligence and investigative records compiled by investigative, law enforcement and penology agencies  Residential addresses and telephone numbers of utility customers  All applications for public employment including names, resumes, and other related information  Credit and debit card numbers, electronic check numbers, and card expiration dates  Test questions, scoring keys, and other examination data used to administer an employment examination  Records that are relevant to a controversy to which the City is a party but which would not be available to another party under pre-trial court discovery rules

Privacy

 There is no general “privacy” exemption in the Public Records Act.  If privacy is an express element of another exemption, privacy is

invaded only if disclosure about the person would be:

• 1. “Highly offensive to the reasonable person” and
• 2. “Not of legitimate concern to the public.”

This means that if information does not satisfy both these factors,

it cannot be withheld as “private” information under other statutes.

~ RCW 42.56.050

Fees

 Agencies cannot charge fees to allow requestors to inspect records.  Agencies cannot charge fees for searching, reviewing or redacting records.  Agencies cannot charge a requestor for staff salaries, benefits or general

• verhead or administrative costs, unless they are directly related to the

actual cost of copying records (the charges must be reasonable, and documented).

 Agencies can charge fees for the copies themselves (15 cents per page, or actual

costs). Agencies can pass along to the requestor the cost of sending records to an

• utside vendor or service so the records can be copied.

 Agencies can charge for costs of mailing records (postage, shipping container, etc.)  Agencies are to make their fee schedules available to the public.  There may be other laws, outside the Public Records Act,

that permit an agency to charge fees for records.

~ RCW 42.56.060, RCW 42.56.120, RCW 42.56.130

Penalty Factors

A court must consider these non-exclusive factors in deciding whether an agency should pay a penalty:  Mitigating factors (factors that can reduce a penalty):

• A lack of clarity in the public records request.
• The agency's prompt response or legitimate follow-up inquiry for clarification.
• The agency's good faith, honest, timely, and strict compliance with all procedural requirements and exceptions.
• Proper training and supervision of the agency's personnel.
• The reasonableness of any explanation for noncompliance by the agency.
• The helpfulness of the agency to the requester.
• The existence of agency systems to track and retrieve public records.

 Aggravating factors (factors that can increase a penalty):

• A delayed response by the agency, especially in circumstances making time of the essence.
• Lack of strict compliance by the agency with all procedural requirements and exceptions.
• Lack of proper training and supervision of the agency's personnel.
• Unreasonableness of any explanation for noncompliance by the agency.
• Negligent, reckless, wanton, bad faith, or intentional noncompliance with the Public Records Act by the agency.
• Agency dishonesty.
• The public importance of the issue to which the request is related, where the importance was foreseeable to the agency.
• Any actual personal economic loss to the requestor resulting from the agency's misconduct, where the loss was foreseeable

to the agency.

• A penalty amount necessary to deter future misconduct by the agency considering the size of the agency and the facts of

the case.

• The inadequacy of an agency’s search for records.

~ Yousoufian v. Sims; Neighborhood Alliance v. Spokane County

• King County was fined $124,000 relating to a request for documents pertaining

to the public financing of Qwest Field. The state Supreme Court then ruled that fine wasn’t big enough and sent the case back to Superior Court with a recommendation to increase the penalty.

• The town of Mesa in Eastern Washington (near Pasco) has had to consider

bankruptcy or disincorporation due to $246,000 in attorney fees and legal

• penalties. That amount is one-quarter of the city’s annual budget.
• Mason County was penalized $320,000 in fines and legal costs in a case over a

request for documents related to a highway-corrector project and sewer systems.

• DSHS was ordered to pay a record judgment of $649,896 in 2011. In a legal brief,

DSHS told the court they “inadvertently missed” the tape recording in question.

• A federal judge fined the City of Mercer Island $90,560 for illegally withholding

several public records for a period ranging from 842 to 882 days.

• December 2014: The City of Bainbridge paid almost $500,000 in a settlement

involving work-related e-mails of Councilmembers that were stored on their personal

• computers. The settlement also resulted in the resignation of one Councilmember.

Public Records Act: What is Tukwila doing?

 The City Clerk has been appointed as the Public Records Officer of the City.  The City’s Public Records Request Policy has been formalized and published on the City’s website.  The majority of the Model Rules published by the Washington State Attorney General’s Office have been incorporated into the City’s policy and procedures.  Commonly requested records have been made available on-line through the City’s Digital Records Center.  Technology is being incorporated to distribute, fulfill and document public records requests in more efficient and cost-effective ways.  Tracking sheets are utilized to provide a history of each request and responses, and also serves to address the needs of State auditors.  Adopted Ordinance No. 1923 to comply with requirements of RCW 42.56 relating to maintenance of an all-inclusive index of public records.  Training on records management requirements has been implemented for staff.  City Clerk’s Office staff is involved in on-going training through various professional

• rganizations.

OPEN PUBLIC MEETINGS ACT

RCW 42.30

Open Public Meetings Act (OPMA) Applies To:

(1) “Public agency” [including:] (c) Any subagency of a public agency which is created by or pursuant to statute,

• rdinance, or other legislative act, including but not limited to planning

commissions, library or park boards, commissions, and agencies; (2) "Governing body" means the multimember board, commission, committee, council,

• r other policy or rule-making body of a public agency

OPMA also applies to: Any committee of such public agency when:  the committee acts on behalf of the governing body,  conducts hearings, or  takes testimony or public comment

~ RCW 42.30.020

The purpose of the OPMA is to allow the public to view the “decision-making process.”

~ Washington State Supreme Court

OPMA Does Not Apply To:

• These entities:

 Courts  Legislature  Agencies not defined as “public agency” in OPMA, such as agencies governed by a single individual  Private organizations

• These activities:

 Licensing/permitting for businesses, occupations or professions or their disciplinary proceedings (or proceedings to receive a license for a sports activity, or to operate a mechanical device or motor vehicle)  Quasi-judicial matters  Matters governed by the Washington Administrative Procedure Act, RCW 34.05  Collective bargaining

~ RCW 42.30.020(1), RCW 42.30.140

Action

“Action” means the transaction of the official business of the public agency and includes but is not limited to: – Public testimony – All deliberations – Discussions – Considerations – Reviews – Evaluations – Final actions The requirements of the OPMA are triggered whether

• r not “final” action is taken.

~ RCW 42.30.020

Action Quorum

Avoid an inadvertent

• n-line public meeting:

Notice Requirements

Regular Meetings

(recurring meetings held according to a schedule fixed by ordinance, resolution, bylaws or other rule) Effective June 12, 2014: Governing bodies are required to make the agenda of each Regular Meeting of the governing body available on-line no later than 24 hours in advance

• f the published start time of the meeting.

Special Meetings

(a meeting that is not a Regular Meeting, called by the presiding officer or majority of the members) Written notice must be given 24 hours before the Special Meeting and must specify the date, time and place of the meeting and the business to be transacted.

Emergency Special Meetings

Notice is not required for a Special Meeting called to deal with an emergency:  When the emergency involves injury or damage to persons or property or the likelihood

• f such injury or damage

 Where time requirements of notice make notice impractical and increase the likelihood

• f such injury or damage

~ RCW 42.30.070, RCW 42.30.075, RCW 42.30.080

In the event that any meeting is interrupted by a group or groups of persons so as to render the orderly conduct of such meeting unfeasible and order cannot be restored by the removal of individuals who are interrupting the meeting, the members of the governing body conducting the meeting may order the meeting room cleared and continue in session or may adjourn the meeting and reconvene at another location selected by majority vote of the members. In such a session, final disposition may be taken only on matters appearing on the agenda. Representatives of the press or other news media, except those participating in the disturbance, shall be allowed to attend any session held pursuant to this section. Nothing in this section shall prohibit the governing body from establishing a procedure for readmitting an individual or individuals not responsible for disturbing the orderly conduct

• f the meeting.

[1971 ex.s. c 250 § 5.]

Executive Sessions

For specified purposes set out in the OPMA. Includes, for example:

• National security
• Real estate:
• Site selection or acquisition of real estate—
• Lease or purchase
• Public knowledge would likely increase

price

• Sale or lease—
• Public knowledge would likely

decrease price

• Final action selling or leasing public

property must be taken at an open meeting

• Publicly bid contracts:
• Review negotiations on the performance
• f publicly bid contracts
• Public knowledge would likely increase

costs

• Evaluate qualifications of an applicant for

public employment

• Meet with legal counsel regarding

enforcement actions, litigation or potential litigation

• Other purposes listed in RCW 42.30.110

~ RCW 42.30.110

Penalties for Violating the Open Public Meetings Act

 A court can impose a $100 civil penalty against each member (personal liability).  Court will award costs and attorney fees to a successful party seeking the remedy. If the court finds that the action was frivolous and advanced without reasonable cause, it may award to the agency reasonable expenses and attorney fees.

 Action taken at the meeting can be declared null and void.

~ RCW 42.30.120; RCW 42.30.130; RCW 42.30.060

Open Public Meetings Act: What is Tukwila doing?

 Agendas are posted on the City’s website at least 24 hours in advance of meetings.  Notices are posted as required for Special Meetings.  Procedures have been formalized for override of the front door locks to ensure access.  Upcoming events are monitored to determine if a Special Meeting notice is required.  A sign is posted on the door when the governing body is in an Executive Session.  Documentation is retained relating to Executive Sessions (purpose, time, attendees).  Training has been provided for staff who serve as liaisons to the City’s Boards and Commissions.  Audio and/or video recordings are posted to the City’s website the next business day.  Agendas and meeting minutes for the City’s Boards and Commissions are being incorporated into the City’s Digital Records Center (making them available on-line).

Resources

Records retention and destruction

Washington State Archives site—Records Management: http://www.sos.wa.gov/archives/RecordsManagement/ On-line training course for public officials (Washington State Archives): http://www.sos.wa.gov/archives/RecordsManagement/PublicOfficialsandPublicRecords/index.html

Public Records Act

Washington State Attorney General’s video on the Public Records Act (scroll down) http://www.atg.wa.gov/OpengovernmentTraining.aspx#.UyDPQfldWqs MRSC publication: “Knowing the Territory: Basic Legal Guideline for Washington City, County and Special Purpose District Officials” http://www.mrsc.org/publications/ktt13.pdf

• Open Public Meetings Act – page 21
• Public Records – page 27

MRSC publication: “Public Records Act for Washington Cities, Counties and Special Purpose Districts” http://www.mrsc.org/publications/pra13.pdf Washington Coalition for Open Government—Public Records Act information http://www.washingtoncog.org/searchpr.php

Open Public Meetings Act

Washington State Attorney General’s video on the Open Public Meetings Act (scroll down) http://www.atg.wa.gov/OpengovernmentTraining.aspx#.UyDPQfldWqs MRSC publication: “The Open Public Meetings Act: How it Applies to Washington Cities, Counties and Special Purpose Districts” http://www.mrsc.org/publications/opma12.pdf MRSC website—Open Public Meetings Act information http://www.mrsc.org/subjects/legal/opma.aspx Washington Coalition for Open Government—Open Public Meetings Act information http://www.washingtoncog.org/public_meetings.php

OPEN PUBLIC MEETINGS ACT PUBLIC RECORDS ACT

 2014: A citizen filed a legal complaint that alleged a Puyallup City Councilmember “improperly maintained a personal website for City related communications,” and “breached his lawful duties to comply with the Public Records Act” by not disclosing the records to the city. The citizen had asked the city to provide all city-related correspondence sent through the Councilmember’s private e-mail address tied to that website. A Pierce County Superior Court judge ruled that the Councilmember must forfeit documents maintained through that private website. The judge also took the City of Puyallup to task, saying the public’s full access to records, on any platform, must be protected.

 2014: Snohomish County agreed to pay a $575,000 settlement with Citizens for Sustainable Development to resolve a lawsuit. The group submitted

more than 275 public records requests to the County Planning and Public Works Departments, the County Council, the County Executive’s Office, and the Prosecuting Attorney’s Office. They filed a lawsuit in 2013 accusing the County of failing to respond to four of its records requests “in a timely manner.”  2014: A court ordered the Mayor and Orange County (Florida) government to disclose IP addresses of all computers that tapped into accounts on the cloud-based, file-sharing service known as Dropbox. The County had been allowing use of the file-sharing service to let employees view and edit county documents on laptops and other mobile devices and work from home. The County has now abandoned its use of Dropbox in the wake of the court’s ruling, saying disclosing IP addresses could leave the County vulnerable to hackers.  2012: Spokane County Commissioners approved a $400,000 settlement with The Neighborhood Alliance of Spokane County. The alliance had sought public records to learn whether the son of a former Commissioner was given a job prior to a formal hiring process. The court ruled the County’s search for records was inadequate, and that they had improperly rejected a request from the alliance to identify two people named on a seating chart. Penalties for non-compliance:  Actions null and void. Any action taken at a meeting that fails to comply with the provisions of the Open Public Meetings Act is null and void.  Personal liability. Potential personal liability of $100 for any member of a governing body who attends a meeting knowing that it violates the Open Public Meetings Act.  Agency liability. Any person who prevails against an agency in any action in the courts for a violation of the Open Public Meetings Act will be awarded all costs, including attorney fees, incurred in connection with such legal action.  2014: Vashon Park District was forced to vote on a severance agreement for a former employee for a second time. The second vote was required because the commissioners’ first vote was done in a closed executive session, which is prohibited by state law.  2012: The State Auditor’s Office determined Whatcom County Councilmembers violated open meeting laws in three instances when council- members sent emails to the full council. In two cases, a councilmember responded to the whole council. Topics discussed in the emails included court funding and discussion of a public disclosure request.  2012: A newspaper in Montpelier, Vermont, made a public records request for text messages and e-mails after witnessing several exchanges between councilors during a meeting. An investigation of other requests revealed the city failed to notify the public about committee meetings.