We the People of the State of Washington
FROM, AND RESPOND TO:
If additional parties add all the above for each party
No.: Insert your own numbering system so you can keep track of your requests
[date] [request number]
NOTICE OF LAW, by cite and reference, CAVEATS, by cite and reference; and REQUEST FOR ACCESS TO RECORDS
[RE: ADMINISTRATIVE REPRESENTATION]
Ref.: Requesters’ prior request for access to records,
titled “Notice of Law and Caveat Re Requests for
Access to Public Records,” which is dated
I. CAVEATS AND NOTICES
1.1 The request for access to public records [request] referenced in the heading of this document was previously served on this agency. It contains caveats, notices of law and directions for handling or responding to these requests that, by this reference, are adopted in full and as if fully set out herein. Therefore, this agency may find it expedient to review that request, for handling directions and other critical information, prior to responding to these requests.
1.2 For purposes of responding to the requests herein and whenever a request contains the statement “A DOCUMENT, OR DOCUMENTS,” this agency need only provide as many documents as it believes are sufficient to disclose the information it appears, from the face of the request, is being sought. This option is extended as a courtesy, to limit any inconvenience to this agency, and should not be used as grounds to treat these requests as requests for “information.”
II. BACKGROUND FOR THIS REQUEST
2.1 Individuals seeking, in good faith, to inform themselves of the laws, policies, codes and regulations affecting them, or who merely wish to exercise their right to monitor government, regularly find their efforts hindered by the acts and omissions of certain public servants.
2.2 It frequently occurs that agency responses to requests contain language which manifests as uncooperative, or even hostile. In such instances, agencies appear to treat records access requests as invasions, burdensome, or unreasonable intrusions into the affairs of the agency.
2.3 Review of hostile or uncooperative request responses appears to indicate many of them to be purposed more to intimidate than to assist requesters in the access of records. Toward that end, many of the responses contain what could be characterized as misrepresentations of law and fact (e.g., erroneous claims that an agency is exempt from all or a portion of the PDA).
2.4 It is noteworthy, perhaps, that a high percentage of what appear to be hostile or
uncooperative responses issue from prosecutors, judges, or another “legal representatives.”
2.5 Regardless of their source, hostile or otherwise uncooperative responses may be deemed to be bad faith attempts to frustrate the public’s access to requested records. Regardless, they are, clearly, at odds with the legislative intent of the PDA.
2.6 In the routine course of their business, many agencies impose on the public policies and procedures that have not been published, displayed, or indexed and that the public has not otherwise been notice. (Laws referenced in RCW 42.17.250(2) and RCW 42.17.260(6)).
2.7 Though uncommon at the state level, agencies can employ a custom and policy of avoiding direct responses to certain requests. Some agencies attempt to delegate their responsibility [to respond to requests] to other agencies, or to individuals not a part of the agency to which the request was submitted. Too, the agencies that are the target of the delegations seek to accept the increased authority the delegation brings.
2.8 A number of governmental entities claim policies that require the forwarding of requests to boards, councils, prosecutors or other agencies or officials for response. This, often, is purportedly done to streamline request processes, for agency convenience. However, the laws referenced in RCW 42.17.340(3) specifically bars agencies from using administrative inconvenience to delay or obstruct the disclosure of records.
2.9 Review of requests and responses to them discloses numerous instances of judges attempting to answer requests directed at clerks or administrators, or to otherwise intervening on their behalf. There are also documented accounts of prosecutors attempting to respond for other county agencies, private attorneys or corporate counsels attempting to answer for city agencies, and other similar situations that obstruct the public’s ability to monitor the performance of a specific government agency.
2.10 A number of problems may arise in situations in which one agency or an individual from outside an agency to which a request was directed responds to a request. For example:
(1) When an agency is given a request for records the law requires it to have (ref. RCW 42.17.250 et seq. and RCW 42.17.260 et seq.), but the records are provided from another agency or individual, a requester may be mislead into believing the agency to which a request was directed actually had the records when, in fact, it may not. As such, an agencyâ€™s reliance on other than its own agents or employees to respond to respond to requests directed at it essentially works to circumvent a requester’s ability to monitor the agency’s performance and compliance with law and works as a misrepresentation of fact.
(2) When other than the agency to which a request is directed, or an individual
not part of the agency to which the request was directed answers a request, the responding personâ€™s or agencyâ€™s limited access records held by the agency to which the request was directed is likely to impede prompt release of records (ref. RCW 42.17.270 and RCW 42.17.320).
(3) When other than the agency to which a request is directed, or an individual not part of the agency to which the request was directed, answers a request, the responding personâ€™s or agencyâ€™s lack of familiarity with the records kept by the agency to which the request is directed may impede prompt release of records (ref. RCW 42.17.270 and RCW 42.17.320).
(4) The agency to which a request was directed, regardless of any attempt to delegate its responsibility for responding to a request, will remain ultimately liable for violations of the PDA.
(5) Delays that result from responses to requests by other than the agency to which the request was directed may be considered a violation of the PDA. (ref. RCW 42.17.270)
(6) A response to requests by other than the agency to which the request was directed may be interpreted as an improper attempt to redirect a requestor to another Agency.
(Olsen v. King County, 106 Wash. App. 616, 24 P.3d 467 (Wash. App. Div. 1, 2001); Limstrom v. Ladenburg, 136 Wn.2d 595 (10/1/98); Tacoma Public Library v. Woessner, 90 Wash.App. 205, 951 P.2d 357 (1998); Judges of the Everett District Court v Hurd, 534 P.2d 1025, 85 Wash. 2d 329 (1975))
(7) The failure of an agency to which a request was directed to directly respond to a request (having another agency or individual from outside the agency at which the request was directed answer the request) may be treated as a failure to respond.
(Smith v Okanogan County, 99 Wash.App. 1028, 994 P.2d 857 (2000))
(8) The PDA requires agencies to make available records disclosing the “employees from whom” records may be accessed. (RCW 42.17.250(1)(a). If unable to produce records disclosing valid appointments [outside the agency for the position of disclosure officer] and another agency or individual from outside the agency at which the request was directed responds to the request, the requester(s) could file a complaint based on the agency’s uncooperativeness (RCW 42.17.250(1)(a)-(e); RCW 42.17.290; Tacoma Public Library v. Woessner, (1998)), for distinguishing among requesters (e.g., singling out the requester to have his request answered by another agency or person from outside the agency at which the request was directed (RCW 42.17.270)), or for other cause.
(9) Many correspondences between an attorney and a local or state agency are
public records that must be disclosed………………………….. ; however, some attorneys and prosecutors
have, based on their assertion they represented an agency for the purpose of responding to a request, claimed an attorney-client privilege regarding certain records.…………………………………………….. that,
otherwise, would not exist.
(10) The act of one agency answering for another, or of an individual from outside the agency to which the request was directed responding to a request, may be perceived as an attempt to shield an agency from public scrutiny, which conflicts with the intent of the PDA.
(11) A response to a request from other than the agency to which a request was directed could result in additional requests and expenditures of public resources, as requesters seek to determine if the agency to which the request was directed possessed authority to re-delegate its responsibility under the PDA.
(12) A response to a request from other than the agency to which a request was directed could result in additional requests to the responding agency to determine, among other things, if the requesters are being distinguished from other requesters. For example, the agency may be asked to produce records by which the requester(s) can determine the frequency of instances in which the answering agency represents the agency to which the request was directed in administrative matters.
(13) A response to a request from other than the agency to which a request was directed may create or compound questions regarding the promptness of release of records, such as those required to be published or displayed (ref. RCW 42.17.250(1)-(1)(c) and RCW 42.17.260(6)) and could result in a suit under the PDA. (ref. RCW 42.17.340)
(14) A response to a request by other than the agency to which the request was directed could result in a suit naming each involved agency and alleging obstruction of access to records, or for damages, which could result in significant expenditures of public funds for the defense of both agencies.
(15) An award of fees out of a suit under the PDA necessarily requires a judgment that the act or omission of an act was outside the scope of agency authority and violated the terms of the Act. Such a judgment may be a reasonable basis for an additional suit, which may name individual agents and seek compensation for damages to the requester(s), or to recoup funds spent in the defense of the action and paid on awards. (Ref. 4.92 RCW
or chapter 4.96 RCW)
(16) The act of an agency, or individual, other than the one to which a request was directed, responding to a request has been alleged to be a representative act. Should authority to represent the agency [for purposes of an administrative response to a request] be shown to be lacking, subsequent suit complaints, separate from others noted herein, may be initiated for improper expenditures or misappropriations of public funds.
(17) (Ashley v. Superior Court, 82 Wn.2d 188, 193-94, 509 P.2d 751 (1973), MODIFIED, 83 Wn.2d 630, 521 P.2d 711 (1974); Hoppe v. King County 95 Wn.2d 332, 622 P.2d 845 (Dec. 31, 1980).
III. PURPOSE OF THIS DOCUMENT
3.1 This is a request for access to the public records described in section five (IV), below.
3.2 The records sought herein are not intended for a commercial use proscribed against
by Washington’s Public Disclosure Act [PDA].
3.3 These requests reflect a growing concern on the part of the public regarding
problems such as those noted in the preceding paragraphs.
3.4 Previous requests and responses to them well established the ongoing negligence by agencies regarding the PDA. By these requests and the responses to them, the requesters are striving to inform themselves and the general public of the degree or level of cooperation of this and other public agencies regarding the PDA.
3.5 By providing cites to case law, codes or other legal authorities, attempt is here made to assist this agency in informing itself of the laws regarding public disclosure. If this agency further neglects to reasonably apply the laws cited, the requester(s) purpose to establish a clear public record of the level of this agency’s bad faith.
3.6 Disclosure of some or all of the reason or reasons for making the records requests below is done solely as a courtesy, and to the extent it may assist this agency in identifying records sought. Disclosure of the purpose of these requests cannot properly be made a condition of release of records (ref. RCW 42. 17.270) and agents should avoid associating or imputing any duty to disclose the purpose of a records request out of this courtesy.
3.7 The records sought below are being requested to allow a determination of whether an agency other than the one to which a request was directed, or an individual from outside that agency, has improperly responded to requests and to allow a determination of the propriety of any delegation of responsibility.
3.8 It is the requester(â€˜s)(sâ€™) intent(s), through this and other disclosure requests, to determine by what authority, if any, this agency and any other agency working in cooperation with it will seek to represent this agency or another agency in the administrative matter of responding to requests.
IV. LAWS AND PRINCIPALS OF LAW THAT MAY AFFECT THIS REQUEST
4.0 The public has the right to monitor government and to verify its compliance with the laws and constitutions of the land. Toward that end, the PDA, the codification of which may be found at chapter 42.17 RCW, was put in place. This fact is clearly expressed in the following subsections of RCW 42.17.010:
That public confidence in government at all levels is essential and must be promoted by all possible means. RCW 42.17.010(5) (emphasis added)
That public confidence in government at all levels can best be sustained by assuring the people of the impartiality and honesty of the officials in all public transactions and decisions. RCW 42.17.010(6) (emphasis added)
Full access to information concerning the conduct of government on every level must be assured as a fundamental and necessary precondition to the sound governance of a free society.
The provisions of this chapter shall be liberally construed to promote complete disclosure of all information respecting the financing of political campaigns and lobbying, and the financial affairs of elected officials and candidates, and full access to public records so as to assure continuing public confidence of fairness of elections and governmental processes, and so as to assure that the public interest will be fully protected. . . . RCW 42.17.010(11) (emphasis added)
4.1 The right of the people to monitor [their] government is well established at all levels,
and for all branches of government:
It is not the function of our government to keep the citizen from falling into error; it is the function of the Citizen to keep the government from falling into error.
American Communications Association v. Douds, 339 U.S. 382, 442 (1950).
See, also, Cowles Publishing v. State Patrol, 44 Wn. App. 882, 724 P.2d 379 (Aug. 12, 1986); Cowles Publishing v. State Patrol,109 Wn.2d 712, 748 P.2d 597 (Jan. 7, 1988); and similar cases that dwelt with the public’s right to know about the behavior of off duty police officers.
4.2 The PDA does not limit itself to focusing on just the state, subdivisions of the state (counties, school districts and port districts), cities, towns or municipalities as a whole. It also focuses on individuals seeking or holding positions of public trust and on the offices, departments, divisions, bureaus, boards, commissions of which government is comprised. Too, certain associations are considered quasi governmental agencies and must comply with the PDA.
Laws referenced in RCW 42.17.020(1).
4.3 The PDA requires certain performance on the part of state agencies. For example:
(1) Pursuant to the laws referenced in RCW 42.17.250(1)(a), this agency must make available documents that will disclose the “employees from whom” records may be accessed. Accordingly, this agency must make such documents “promptly available, when sought (Laws referenced in RCW 42.17.270). Any delay in the release of such documents may be grounds for a suit.
(2) Agencies must publish or display their procedures.
[Laws referenced in RCW 42.17.250(1)];
(3) Agencies must create indexes. [Laws referenced in RCW 42.17.260(3)], Alternatively, they must establish a formal order addressing their failure to do so [Laws referenced in RCW 42.17.260(5)];
(4) State agencies must establish rules implementing a system of indexing for the identification and location of specific records
[Laws referenced in RCW 42.17.260(5)(a) -(e)];
(5) Both state and local agencies must give notification of their rules and such, before they can be used to adversely affect a member of the public.
[Laws referenced in RCW 42.17.250(2) and RCW 42.17.260(6)];
(6) Agencies must cooperate with and assist the public in its attempts to access public records. As well, an agency’s rules affecting public’s access to records must be
reasonable. [Laws referenced in RCW 42.1 7.250(1)(a) through(e) and RCW 42.17.290. See, also Tacoma Public Library v. Woessner, 90 Wash.App. 205, 951 P.2d 357, 1998];
(7) Agencies must promptly respond to requests.
[Laws referenced in RCW 42.17.320]; and
(8) Within five (5) business days of receiving a public records request,
AN AGENCY. . . . must respond by either:
Â· Providing the record;
Â· Acknowledging that the . . . . has received the request and providing a reasonable estimate of the time the agency. . . . will require to respond to the request; or
Â· Denying the public record request. . . .
[Laws referenced in RCW 42.17.320 (emphasis added)]
4.4 In event an agency fails to respond to a request, it may be penalized for violating the
PDA, even if it did not have the records sought.
[Smith v. Okanogan County, 99 Wash. App. 1028, 994 P.2d 857 (Wash. App. Div.3 02/08/2000); Blaine Sch. Dist. No. 503, 86 Wn. App. at 698-99.]
4.5 If a requester believes an agency’s estimation of the time to produce records is unreasonable, [t]he superior court in the county in which a record is maintained may require the responsible agency to show that the estimate it provided is reasonable. . . . [RCW 42.17.340(2) (emphasis added)].
4.6 If a requester believes an agency erroneously denied access to records, the superior court in the county in which a record is maintained may require the responsible agency to show cause why it has refused to allow inspection or copying of a specific public record or class of records. . . . [RCW 42.17.340(1) (emphasis added).]
4.7 Neither the code sections noted in the preceding paragraphs nor any other portion of the PDA empowers agencies to require one seeking public documents to deal with other than the agency to which a request is directed. To the contrary, law clearly indicates the agency to which the request was directed may be ordered to appear and show cause why it did not directly respond to a request. For example:
(1) In Olsen v. King County, 106 Wash. App. 616, 24 P.3d 467 2001 ), after the Olsens submitted a records request they obtained a document from a source other than the agency to which they submitted the request, but the agency having received the request was not relieved of its responsibility to disclose it;
(2) In Tacoma Public Library v. Woessner, 90 Wash.App., 205, 951 P.2d 357 (1998), quoting Limstrom v. Ladenburg, 85 Wn. App. 524, 933 P.2d 1055, review granted, 133 Wn.2d 1001, 943 P.2d 662 (1997), the Pierce County Prosecutor’s Office erroneously denied a request in part “because these documents would be available at less cost to the state through the clerk’s office or other agencies . . . .” Limstrom, 85 Wn. App. at 532; and
(3) In the case that eventually resulted in the decision in Judges v Hurd, 534 P.2d 1025, 85 Wash. 2d 329 (1975), it was found that the judges of the Everett,
Washington, District Court should have released the records in their possession, rather than direct a requester to a source they believed to be better qualified to produce the documents, the auditor’s office.
4.8 In keeping with the foregoing decisions it is the position of the requester(s) that law nowhere grants authority whereby an attorney, prosecutor, judge, another agency or an individual from outside the agency to which the request was directed may represent another agency for purposes of responding to a request. It is our stance that such acts are clearly in conflict with the intent of the PDA.
4.9 Agencies cannot properly legislate new authority for themselves. Nor can they create policies and procedures that abrogate requirements otherwise imposed on them by law:
(1) â€œ[I]nclusion of one thing implies exclusion of others.” State v Wood, KA.4162; 647 P.2d 1327; 231 Kan. 699 (1982 ).
(2) â€œ[O]ne of the more common rules of statutory interpretation is that expressed in the Latin maxim expressio unius est exclusio alterius, i.e., the mention or inclusion of one thing implies the exclusion of another” and “[t]his rule may be applied to assist in determining actual legislative intent . . . .â€ State v. Luginbill, 223 Kan. 15, 20, 574 P.2d 140 (1977); State ex rel. Banker v. Clausen, 142 Wash. 450, 253 Pac. 805 (1927). YELLE v. BISHOP, 55 Wn. (2d) 286, 295, 306 (Dec. 17, 1959).
(3) A court cannot read anything into a statute that which it may believe the legislature has omitted, be it an intentional or an inadvertent omission. Jenkins
v. Bellingham Municipal Court, 95 Wn.2d 574, 579, 627 P.2d 1316 (1981)” STATE v. TAYLOR, 97 Wn.2d 724, 728, 649 P.2d 633 [No. 48523-2. En Banc. August 12, 1982.]
(4) “In construing a statute, it is safer always not to add to, or subtract from, the language of the statute unless imperatively required to make it . . .rationale
. . .” State v. Taylor, 97 Wn.2d 724, 728, 649 P.2d 633 (1982); McKay v. Department of Labor & Indus., 180 Wash. 191, 194, 39 P.2d 997, 98 A.L.R. 990 (1934).” STATE v. EDWARDS, 104 Wn.2d 63, 68, 701 P.2d 508 [No. 50532-2. En Banc. June 13, 1985.] And;
(5) “[A]gency power is always circumscribed by the authority granted by statute.
B. Schwartz, Administrative Law Â§ 146 (1976); Jaffe, The Right to Judicial Review, 71 Harv. L. Rev. 401, 403 (1958). It is well settled that an administrative agency has only those powers which are expressly or implicitly granted to it by statute
[Burlington Northern, Inc. v. Johnston, 89 Wash. 2d 321, 326, 572 P.2d 1085 (1977)] and that the actions of an agency in excess of its statutory authority are void. See Arbogast v. Westport, 18 Wash. App. 4, 7-8, 567 P.2d 244 (1977); Port Townsend School District No. 50 v. Brouillet, 21 Wash. App. 653, 10/24/1978).
4.10 Where authority to do so does not clearly show, an agency’s use of a judge, the prosecutor, corporate counsel, or another agency to answer requests may be an unlawful expansion of its powers, may be the equivalent of resorting to self help [frowned upon by the courts] and may subject the agency to a quo warranto, mandamus, qui tam or Whistle Blower action.
4.11 An agencyâ€™s power to assign its duties is not without limit. It cannot avoid liability for its acts and omissions of acts by attempts to transfer duties to other agencies or individuals outside the agency. For example, though prosecutors, clerks and sheriffs may appoint deputies and judges may appoint assistants, they remain ultimately responsible for the actions of their deputies or other agentsâ€™ acts.
4.12 Generally, agencies cannot re-delegate authority delegated to them. That is, a delegated power cannot be, again, delegated :
(See 2 Inst. 597; Black’s, 2.d. 347; 2 Bouv. Inst. n. 1300). For example, a deputy cannot have (appoint) a deputy (Story, Ag. s. 13; 9 Coke, 77; 2 Bouv. Inst. n. 1936).
In support of this principal of law, the courts have said that “[f]air or reasonable doubts as to the legislature’s delegation of authority to accomplish a particular task will be decided in favor of withholding the authority.” Washington Educ. Ass’n v. Smith, 96 Wn.2d 601, 638 P.2d 77 (Dec., 1981).
4.13 Basic rules of statutory construction require statutes to be construed as a whole.
In re Troxel, 87 Wn. App. 131, 134, 940 P.2d 698 (1997), review granted, 133 Wn.2d 1028, P.2d (Jan. 7, 1998) [quoting Alderwood Water Dist. v. Pope & Talbot, Inc., 62 Wn.2d 319, 321, 382 P.2d 639 (1963)].
In particular, a statute’s provisions must be considered in relation to each other and, when possible, harmoniously construed, to affect the act’s overall purpose and to insure each provision is properly construed.
City of Seattle by and through Dep’t of Housing and Human Servs. v. State, 87 Wn. App. 715, 718, 943 P.2d 337 (1997) [citing Timberline Air Serv., Inc. v. Bell Helicopter-Textron, Inc., 125 Wn.2d 305, 315, 317, 884 P.2d 920 (1994)]; and Clausing v. State, 90 Wash.App. 863, 955 P.2d 394 (Wash.App. 03/23/1 998).
4.14 When a general and a specific statute deal with the same subject matter, the terms of the specific statute prevail when construing their effects. (State v. Cook, 9 Wn. App. 227, No. 2057-42649-1, Division One-Panel 2 Court of Appeals (1973)).
4.15 The requester(s) stipulate to that agencies may seek advice or may have forms drawn up for them and that they, generally, are not required to obtain special approval to do so. (RCW 36.27.020) However, the requester(s) do/does not, by this stipulation, concede to that the act of advising or filling out forms constitutes representation or creates an attorney-client relationship.
4.16 A prosecutor’s authority to act on an agencyâ€™s behalf is set out in the laws referenced in chapter 36.27 RCW. Those laws do not authorize prosecutors to represent agencies in administrative actions. Furthermore, the prosecutor and other agencies are not free to confer on themselves authority of any kind, whatsoever.
4.17 The state attorney general provides advice in the form of opinions, but, in so doing, makes clear to agencies that such advice does not create an attorney-client relationship.
4.18 When agencies seek legal representation on a matter, local or state law may require them to submit a formal request to the agency from which they seek representation, may require them to obtain approval from a board of commissioners or another entity, or may require that them to perform other acts.
4.19 An agency may not have the option of representation when dealing with its own administrative matters where law does not specifically authorize such.
4.20 An agency alleging a right to representation for the purpose of handling its own administrative matters, or to represent another agency in that agency’s internal affairs matters, must be able to produce both supporting authority for the act and proof of having meet all the statutory requirements for obtaining representation.
4.21 Where authority to represent another agency or to utilize representative services cannot be shown, the policy makers of both the agency that sought representation and the agency which provided representation may be liable for any unauthorized costs incurred by the public.
4.22 It is the requester(‘s)(s’) stance that providing legal advice and providing legal representation are each acts distinguishable from the other.
4.23 It is the requester(‘s)(s’) stance that the act of responding to requests issued to other than the agency giving the response constitutes legal representation, as opposed to merely providing legal advice.
4.24 It is the requester(â€˜s)(sâ€™) stance that, whereas certain prosecutors and other legal representatives have claimed authority to respond to requests, the act of one agency answering a request for another agency should also be treated as an act of legal representation, but which, based on the facts herein, may be prohibited under law.
4.25 Prosecutors [and legal counsel] are not entitled to absolute immunity for activities not intimately associated with the judicial process (e.g., giving advice to police during the preliminary investigative stage, fabricating evidence during the preliminary investigative stage to present to a grand jury, or making comments to the press). MASTROIANNI V. BOWERS, 160 F3d 671 (11th Cir. 1998). Furthermore, a prosecutor acting in an investigative or administrative capacity is protected only by qualified immunity. CARTER V. CITY OF PHILADELPHIA, 181 F3d 339 (3rd Cir. 1999).
4.26 An agency’s recourse for damages resulting from reliance on erroneous advice from a prosecutor, or other counsel, may be limited to a separate suit naming the prosecutor or counsel; however, the agency remains ultimately liable for any damage resulting from its acts based on that advise.
4.27 Cities and counties are the real party in interest in suits against one of their agencies. Prosecutors, and those in similar positions, may be called upon to prosecute agents for acts outside their authority, or to defend their principals for those acts.
4.28 In circumstances in which a legal representative must defend an action in which it provided the advice on which the improper act was based, or acted as legal representative (e.g., answering requests on behalf of another agency), a conflict of interest may arise between the duty to defend and the duty to avoid frivolous arguments, to pursue justice, or simply by that the legal representative could be named a party to the action.
4.29 The conflicts described above may call for the appointment of a special prosecutor, which would place additional financial burden on the legal representativeâ€™s principal.
4.30 The term “appear,” as it is used in RCW 36.27.020 et seq, is associated with an adversarial proceeding. If, in fact, the prosecutor or legal should come to claim to represent an
agency for purposes of responding to a request, it stands to reason he is “appearing” for a client, and the situation is an adversarial one.
4.31 A prosecutor or counsel who “appears” for an agency via a response to a request directed at another agency may be converting the administrative process to an adversarial one and placing himself and his alleged client at odds with the PDA’s requirements that agencies cooperate with requesters.
4.32 In a regular court action, once an appearance is made the opposing side must direct all correspondence at the legal representative. In the case of situations in which a prosecutor answers a request for another agency, however, the requester often receives documents from the agency, as well as the prosecutor or representative entity leaving requesters confused as to which agency they should direct their correspondence.
4.33 The laws referenced in RCW 42.17.320(3) require agencies to [internally] review each denial of a request for documents they issue within two business days.
4.34 The laws referenced in RCW 42.17.400 impose on county prosecutors the duty to review local agency decisions denying disclosure of requested documents, when asked to do so
(RCW 42.17.325, for state agencies).
4.35 The laws referenced in RCW 42.17.400 are not redundant in relation to those referenced in RCW 42.17.320(3). Rather, they are purposed to provide requesters with a review process unhampered by obvious conflicts of interest associated with an agency’s internal review process.
4.36 Prosecutors who allege to assume the position of another agency’s disclosure officer, and/or who claim to represent the agency at the administrative level for the purpose of answering a request, create a conflict of interest and, effectively, deny requesters their administrative remedy.
4.37 Prosecutors who, for purposes of answering a request at the administrative level, assume the position of an agency’s legal representative, effectively circumvent the intent of the laws referenced in RCW 42.17.400. They may be obligated to appoint a special prosecutor, to insure the statutory review processes.
4.38 If a prosecutor’s intervention in another agency’s administrative level public disclosure matter necessitates appointment of a special prosecutor to conduct the review, or if a requester is denied his administrative review because of conflict resulting from the intervention, the prosecutor may be liable for costs associated therewith, or for any associated damages.
4.39 In a regular court action, documents must display both the representativeâ€™s and the client’s signatures; however, responses to requests made by legal counsel, generally, display only the signature of the representative.
4.40 With exceptions made for pro tem judges, law proscribes against judges practicing law while they hold office.
4.41 A judge who represents an agency for purposes of answering a request may be deemed to be practicing without a license.
4.42 A judge who undertakes to represent another agency for purposes of responding to a request, or who performs a ministerial act for his own agency, such as by answering a request for it, does not enjoy absolute immunity: Absolute immunity protecting acts closely associated with judicial process does not extend to investigative or administrative acts. (Miller v. City of Philadelphia, 174 F3d 368 (3rd Cir. 1999)).
4.43 In those events when a judge takes it upon himself to respond to a request directed
at another agency, such as the agency of a county clerk or court administrator, it might be argued he has unlawfully combined his judicial branch agency with a clerk’s executive branch.
4.44 Presuming, for purposes of discussion, a prosecutor or city counsel was authorized
to represent an agency for purposes of responding to a request, it then stands to reason an agency operating in the same capacity would, also, be operating as legal representative, but for
which it may be unqualified. Such acts may be construed to be unauthorized practice of law.
4.45 A party for whom an attorney appears may, at his discretion, challenge the appearance of an attorney and, if the attorney cannot show his authority, the party may be relieved
from consequences of the attorneyâ€™s acts:
If it be alleged by a party for whom an attorney appears, that he does so without authority, the court may, at any stage of the proceedings, relieve the party for whom the attorney has assumed to appear from the consequences of his act; it may also summarily, upon motion, compel the attorney to repair the injury to either party consequent upon his assumption of authority. RCW 2.44.020.
4.46 If the party for whom the attorney alleges to appear is aware of the appearance, but does nothing to challenge the attorneyâ€™s authority to so appear, the party will be deemed to have ratified the appearance and to have waived the right to challenge the appearance.
(Jones v. Jones, 72 Wash. 517, 130 P. 1125 (1913)).
4.47 In circumstances in which an attorney, prosecutor, judge, other agency or individual responds to a request, the agency to which the request was directed may have a duty to challenge the representation.
4.48 The requester(‘s)(s’) position is that an agency’s failure to challenge an appearance, or representation, does not excuse the agency [to which the request was directed] from its responsibility to directly respond to the request, and any resulting damages or penalties, when it fails to do so.
4.49 An agencyâ€™s ratification of an appearance on its behalf does not, in and of itself, lend legitimacy to the appearance, such as where the appearance is an unauthorized use of a public office, public funds and/or public facilities. Under law, whether those referenced in chapter 4.92 RCW, chapter 4.96 RCW, or other code or authority, both the party and the alleged representative may be held accountable for any unauthorized expenditure of public money.
(Waterman v. Robertson 103 Wash. 553, 175 P. 177(1918)).
4.50 Under the laws referenced in RCW 2.44.030, opposing parties, also, may challenge the authority of a representative appearance:
The court, or a judge, may, on motion of either party, and on showing reasonable grounds therefor, require the attorney for the adverse party, or for any one of several adverse parties, to produce or prove the authority under which he appears, and until he does so, may stay all proceedings by him on behalf of the party for whom he assumes to appear.
(Johnsen v. Petersen, 43 Wn. App. 801, 719 P.2d 607 (May 28, 1986)).
4.51 A private law firm answering requests for a government agency may be acting as a quasi government agency and, itself, subject to the PDA.
(Brentwood Academy v. Tennessee Secondary School Athletic Association, 121 S.Ct. 924, 531 U.S. 288, 180 F.3d 758, 148 L.Ed.2d 807 (U.S. 02/20/2001); Pub. Citizen Health Research Group v. Depâ€™t of Health, 668 F.2d 537, 543 (D.C. Cir. 1981); Telford v Thurston County Board of Commissioners, Washington State Association of Counties; and Washington Association of County Officials, 95 Wash. App. 149, 974 P.2d 886 (1999); and AGO 2002 No. 2.).
4.52 Quasi public agencies that fail to respond to requests may be sued and could have penalties assessed against them, even if they do not have the records sought.
(Smith v OkanoganCounty, 99 Wash.App. 1028, 994 P.2d 857 (2000).)
4.53 A person who, or agency which, answers a request directed at a state or local agency and not directed at him/her/it could be sued for interfering with the disclosure processes. Subsequently, the agency or individual could incur a monetary judgment. Even if the individual suing did not prevail, such a suit may not be considered frivolous and the defendant may not be able to recoup the cost of defending the action.
4.54 Those involved in responding to requests are obligated to make themselves aware of the common law conflicts of interest and the doctrine of incompatible offices.
4.55 Statutory provisions aside, the conflicts doctrine requires public functionaries to
avoid acting as judge in his or her own cause (Smith v. Centralia, 55 Wash. 573, 104 Pac. 797 (1909)). An
example may be when the duty to investigate, as set out in RCW 42.17.400, conflicts with the attorney-client relationship created out of an attempt to represent an agency at the administrative level, such as for answering requests.
4.56 The [common law] doctrine of incompatible offices forbids the holding multiple public offices having conflicting interests. For example, if one office is subordinate to another in some aspect of its functions and duties, or one office is charged with the duty of investigating another, it would be inappropriate for a person to hold positions in both offices. In the foregoing instances, the officer must resign from one or the other of the two offices. As well, a prosecutor or attorney general may have to appoint a special prosecutor, to overcome the conflict his/her representation created.
4.57 Violation of one of these doctrines could result in an erroneous denial of a remedy, such as an administrative review process. A denial resulting from an act clearly outside the scope of person’s authority could result in state (e.g., chap. 4.92 RCW , chap. 4.96 RCW and/or RCW 42.17.340) and/or federal suits (e.g., Title 42, sec. 1982).
4.58 Based on the foregoing, it may be a sound practice that the agency to which the request was directed establish a policy of obtaining counsel’s advise in writing, in anticipation that
they might find it necessary to pursue a action to recoup their losses from judgments and things resulting from erroneous advice.
4.59 For the reasons set out herein, many agencies throughout Washington have abandoned the practice of having prosecutors, corporate counsel, other agencies, or anyone other than their own agents or employees answering requests for them.
4.60 The laws referenced in RCW 42.17.270 prohibit agencies from distinguishing among requesters. Accordingly, agencies that rely on a judge, prosecutor, corporate counsel, or other agency to answer a request received by mail, but that answer them themselves when individuals come into the office and seek records, or that do not rely on such individuals to answer other requests may be in violation of the PDA.
4.61 For reasons set out herein, the requester(s), hereby, object to representation of this
agency by any other agency or individual from outside this agency, for purposes of responding to these or any other requests submitted by them.
V. DOCUMENTS BEING SOUGHT
Please provide access, for review and copying, to the following documents:
Number and insert the documents sought
5.1(1) A DOCUMENT OR DOCUMENTS, showing this agency
5.1(2) A DOCUMENT OR DOCUMENTS, showing this agency
5.2(1) A DOCUMENT, OR DOCUMENTS,
5.2(2) A DOCUMENT, OR DOCUMENTS,
5.3(1) A DOCUMENT, OR DOCUMENTS that
5.3(2) A DOCUMENT, OR DOCUMENTS that
5.4(1) A DOCUMENT, OR DOCUMENTS that
5.4(2) A DOCUMENT, OR DOCUMENTS
Insert time frame for each document requested (Delete requests in this example not wanted)
5.5(1) For the period of three years preceding the date of this request.
5.5(2) For the period of three years preceding the date of this request.
5.5(3) For the period of three years preceding the date of this request,
5.5(4) For the period of three years preceding the date of this request.
5.6(1) A DOCUMENT, OR DOCUMENTS â€¦â€¦
5.6(2) A DOCUMENT, OR DOCUMENTS wherein is shown â€¦â€¦
5.7(1) A DOCUMENT, OR DOCUMENTS this agency believes â€¦â€¦
5.7(2) A DOCUMENT, OR DOCUMENTS this agency believes will show, or support
a contention, its response
5.8 The policy this agency â€¦â€¦
5.9(1) If this agency is claiming to represent â€¦â€¦â€¦
5.9(2) If this agency is claiming another agency or person from outside the agency is representing it for purposes of responding to a request, a DOCUMENT, OR DOCUMENTS by which it may be determined how and how much this agency is being billed for that service.
5.10 If this agency is claiming to represent another agency, or is claiming to be represented by another agency or individual, for purposes of responding to a request, all correspondence with the governing body, legal counsel, and the other agency, or individual, regarding the matter.
5.11 If this agency is claiming to represent another agency, or is claiming to be represented by another agency or individual, for purposes of responding to a request, the NOTICE OF APPEARANCE issued in the matter.
5.12 If this agency is claiming to represent another agency, or is claiming to be represented by another agency or individual, for purposes of responding to a request, the contract authorizing said representation.
5.13 If this agency is claiming to represent another agency, or is claiming to be represented by another agency or individual, for purposes of responding to a request, a DOCUMENT, OR DOCUMENTS containing a court heading and by which may be determined the date the action started.
5.14 A DOCUMENT, OR DOCUMENTS showing all training (e.g., classes, seminars, handouts, etc.) given agents of this agency’s who are responsible for handling of requests. If possible, in the response, please segregate documents that disclose special or additional training for individuals from other agencies delegated the responsibility of responding to this agency’s requests.
5.15(1) For the period of three years preceding the date of this request, a document, or documents that will reveal each instance in which another agency, or someone from outside this agency, has represented this agency in one of its administrative actions, including, but not limited to, responding to requests.
5.15(2) For the period of three years preceding the date of this request, a document, or documents that will reveal each instance that this agency has represented another agency in an administrative action.
5.16(1) For the period of three years preceding the date of this request, and if not already provided in response to the preceding request, a document, or documents that will reveal each instance in which a prosecutor, legal counsel, or another agency has answered a request for this agency.
5.16(2) For the period of three years preceding the date of this request, and if not already provided in response to the preceding request, a document, or documents that will reveal each instance in which this agency has answered a request for another agency.
5.17 Documents disclosing the definitions this agency relies on to define the terms “advise” and “represent” relative to legal counsel’s or another agency’s representation of this agency for purposes of answering public disclosure requests.
5.18(1) If not already provided in response to another request, please provide the policy or policy this agency relies on with regard to representing other agencies in administrative matters, including the answering of requests.
5.19(2) If not already provided in response to another request, please provide the policy or policy this agency relies when obtaining representation by another agency, or individual, for purposes of dealing with an administrative matters, including the answering of requests.
5.20(3) If not already provided in response to another request, please provide the policy or policy this agency relies on to avoid distinguishing among requesters (laws referenced in RCW 42.17.270), when it singles out certain requests to be answered by another agency.
5.21 If it is this agency’s policy to, at any time, have another agency, or individual from outside this agency, answer or respond to requests, please provide documents from which it may be determined when the policy was adopted.
[Date at heading of document]
Insert Your Name