Information only public if ‘used’ in decision-making process

Information that is cited as part of a public agency’s decision-making process is not necessarily subject to disclosure under the open records law, the state Supreme Court in Olympia ruled in early September.

The information becomes public only if the agency “used” it to reach a decision. The court defined “use” for the first time under the Public Records Act to require a nexus between the information and the public agency’s decision-making process.

A public utility district in southwest Washington announced plans in 1994 to construct a 248-megawatt electrical generator in Vancouver, Wash., near Portland, Ore. A citizen’s group concerned about the generator’s actual capacity organized in 1995 and began requesting from the district access to the turbine’s technical specifications and related financial documents.

The Concerned Ratepayers Association wanted to inspect the generator’s technical specifications to see whether the plant’s capacity actually would exceed 250 megawatts. Construction of a plant with such a capacity would require public approval, and members of the association wanted to know whether a vote on the plan should be called.

The utility district denied the association’s initial records requests, stating that the technical specifications were being held by the project’s contractors, Cogentrix Energy and General Electric. Once the district obtained the specifications, it said it would allow the ratepayer’s association to review them.

The district eventually released to the association about 115 pages of information relating to the specifications, but it failed to release the entire document. In addition to stating that it did not have the document, the district argued that the specifications were not public records because they contained trade secrets. The district also asserted that specifications were no longer being used since the contract for the generator had changed from a specifications-based contract to a performance-based one, for which technical specifications no longer were required.

In May 1996, the Concerned Ratepayers Association filed suit in state court in Vancouver seeking disclosure of the technical specifications and financial records for the project under the Public Records Act.

That law defines a public record as “any writing containing information relating to the conduct of government or the performance of any local governmental or proprietary function prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics.”

Unless a specific exemption applies to prevent disclosure, all public records in Washington must be made public, and the state courts had never before defined what constituted “used” under the records law.

The association claimed in its suit that even though the utility district was not the custodian of the records being sought, the information was nonetheless public because the utility district had “used” it as part of its decision-making processes. In its defense, the utility district said that the technical specifications were beyond the scope of the public records law because they had not been “used” and that the association abandoned its request for financial information.

The trial court sided with the utility district on the issue of whether to release the technical specifications, ruling that they had not been “used” and, therefore, were not public records. The court’s ruling failed to mention the request for financial records. In a subsequent hearing, the court did determine that the financial records were subject to complete disclosure but dismissed that part of the suit because it determined that the utility district had, in fact, already released the financial records.

In August 1998, an intermediate appellate court in Tacoma subsequently declined to find that the utility district had “used” the technical specifications.

Citing several dictionaries, the intermediate appellate court ruled that “[a] document relating to a governmental function is ‘used’ by the agency if it is applied to a given purpose or instrumental to an end or process. . . . Thus, an agency may have used a document not in its possession but, under the circumstances here, evidence that the District merely reviewed, evaluated, or referred to the document is insufficient to establish ‘use.’” The court further found the fact that the utility district ultimately decided to install a different generator model was proof that the original technical specification had not been relied on in the agency’s final decision.

The appellate court also held that the financial records were public but found they had not already been released. It sent the matter back to the trial court and directed the trial court to oversee disclosure.

The ratepayers’ association subsequently argued before the state Supreme Court in Olympia that the lower appellate court had disregarded the long tradition of broadly interpreting the public records law by now requiring that the use of information be “instrumental” for it to be public.

The utility district, however, maintained that the appeals court interpreted the “use” requirement properly and argued that its use of the technical specifications was insufficient to make the record public.

The Supreme Court, in a decision written by Judge Barbara Madsen, decided that the intermediate appellate court’s definition of “use” was consistent with a broad interpretation of the records law. But it ultimately reversed, finding that the utility district had indeed “used” the technical specifications.

“Whether information has been ‘used,’ however, should not turn on whether the information is applied to an agency’s final work product,” the Supreme Court ruled. “Rather, the critical inquiry is whether the requested information bears a nexus with the agency’s decision-making process. A nexus between the information at issue and an agency’s decision-making process exists where the information related not only to the conduct or performance of the agency or its proprietary function, but is also a relevant factor in the agency’s action.”

Before the records are to be made public, the lower court needs to determine that the documents are not exempt under the trade secret exception, the Supreme Court ruled. The court sent the case back to the trial court for further proceedings. (Concerned Ratepayers Ass’n v. Public Util. Dist. No. 1 of Clark County)