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Home My WebLink About08.10.2020 - Inclusion, Diversity and Equity Commission Meeting - Packet INCLUSIVITY, DIVERSITY AND EQUITY COMMISSION REMOTE MEETING MONDAY, AUGUST 10, 2020 6:00-8:00 P.M. Governor Inslee's Proclamation No. 20-28, made in response to the COVID-19 emergency, prohibits members of the public from attending City meetings in-person but requires agencies to provide options for the public to participate in remotely. To best comply, the City asks all members of the public that would like to comment regarding items on the agenda to fill out a form via the City’s website (www.pasco-wa.gov/publiccomment) to obtain access information to comment. Requests to comment in meetings must be received by 4:00 p.m. on the day of each meeting. To listen to the meeting via phone, call (914) 614-3221 and use access code 698-894-748. To view the meeting live, register at: https://attendee.gotowebinar.com/rt/8793789954091952140 1. Call To Order – Jeffrey Robinson, Commission Vice-Chair 2. Roll Call – Jeffrey Robinson, Commission Vice-Chair 3. City Manager Comments – Dave Zabell 4. Approval of Minutes – N/A 5. Open Public Meetings Act & Public Records Presentation (estimated 1-hour) – Eric Ferguson, City Attorney 6. Introductions – Lynn Carlson, Facilitator 7. Commission Ground Rules – Lynn Carlson, Facilitator 8. Housekeeping – Angela Pashon, Staff Liaison a. Meeting occurrence b. Commission Chair 9. 2019-2020 Work Plan Review and Discussion – Lynn Carlson, Facilitator 10. Good of the Order – Jeffrey Robinson, Commission Vice-Chair 11. Adjourn – Jeffrey Robinson, Commission Vice-Chair Next meeting TBD Open Public Meetings Act RCW 42.30 ______________________________ Prepared by Washington State Attorney General’s Office Last revised: July 2017 Washington’s Open Public Meetings Act (OPMA) •Passed in 1971 •Requires meetings to be open to the public, gavel to gavel •RCW 42.30 2 Purpose •“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 42.30.010 3 Purpose (Cont.) •Public commissions, boards, councils, etc. listed in OPMA are agencies of this state that exist to aid in the conduct of the people’s business. •Their actions are to be taken openly and deliberations conducted openly. ~ RCW 42.30.010 •Act is to be “liberally construed.” ~ RCW 42.30.910 •The purpose of the OPMA is to allow the public to view the “decisonmaking process.” ~ Washington State Supreme Court 4 Open Government Laws Like the OPMA are Often Called “Transparency Laws” or “Sunshine Laws” This is because they “shine light” on government. U.S. Supreme Court Justice Louis Brandeis once famously said, "Sunlight is the best disinfectant.” ___________________________________________________ Transparency builds public confidence in government. 5 6 OPMA Applies To: Multi-member public state and local agencies, such as boards and commissions, as follows: •Any state board, commission, committee, department, educational institution, or other state agency which is created by or pursuant to statute, other than courts and the legislature. •Any county, city, school district, special purpose district, or other municipal corporation or political subdivision of Washington. •Any subagency of a public agency which is created by or pursuant to statute, ordinance, or other legislative act, including but not limited to planning commissions, library or park boards, commissions, and agencies. •Any policy group whose membership includes representatives of publicly owned utilities formed by or pursuant to the laws of this state when meeting together as or on behalf of participants who have contracted for the output of generating plants being planned or built by an operating agency. ~ RCW 42.30.020 These are the “public agencies” subject to the OPMA. 7 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 Governing Body •All meetings of the governing body of a public agency shall be open and public and all persons shall be permitted to attend any meeting of the governing body of a public agency, except as otherwise provided in RCW 42.30. ~ RCW 42.30.030 8 What is a Governing Body? •The multimember board or other policy or rule- making body OR •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 9 What is a Meeting? •“Meeting” means meetings at which the public agency takes “action”~ RCW 42.30.020 •“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 or not “final” action is taken. See upcoming slide on “final action.” •A “meeting” of a governing body occurs when a majority of its members (quorum) gathers with the collective intent of transacting the governing body’s business. ~ Citizens Alliance for Property Rights Legal Fund v. San Juan County 10 “Meeting” (Cont.) •Physical presence not required –a meeting can occur by phone or email. •An exchange of e-mail could constitute a meeting if, for example, a quorum of the members participate in the e- mail exchange & discuss agency business. Simply receiving information without comment is not a meeting. ~ Wood v. Battle Ground School District; Citizens Alliance for Property Rights Legal Fund v. San Juan County •Does not need to be titled “meeting” –OPMA also applies to “retreats,” “workshops,” “study sessions,” etc. •No meeting occurs if the governing body lacks a quorum. 11 Final Action •“Final action” is a collective positive or negative decision, or an actual vote, by a majority of the governing body, or by the “committee thereof” •Must be taken in public, even if deliberations were in closed session. •Secret ballots are not allowed. ~ RCW 42.30.060, RCW 42.30.020 12 Travel and Gathering •A majority of the members of a governing body may travel together or gather for purposes other than a regular meeting or a special meeting, so long as no action is taken. •Discussion or consideration of official business would be action, triggering the requirements of the OPMA. ~ RCW 42.30.070 13 “Regular” Meetings •“Regular meetings” are recurring meetings held in accordance with a periodic schedule by ordinance, resolution, bylaws or other rule. •A state public agency must: •Yearly, file with Code Reviser a schedule of regular meetings, including time and place •Publish changes to regular meeting schedule in state register at least 20 days prior to rescheduled date ~ RCW 42.30.070; RCW 42.30.075; RCW 42.30.077 14 “Regular” Meetings (Cont.) •Agenda notice requirements apply to regular meetings. •RCW 42.30.077 requires governing bodies to make the agenda of each regular meeting of the governing body available online no later than 24 hours in advance of the published start time of the meeting. •This law does not: •Apply to agencies that do not have websites. •Apply to agencies that employ fewer than 10 full-time employees. •Restrict agencies from later modifying an agenda. •Invalidate otherwise legal actions taken at a regular meeting where agenda was not posted 24 hours in advance. •Satisfy public notice requirements established under other laws. •Provide a basis to award attorneys fees or seek court order under OPMA if agenda is not posted in accordance with this law.15 “Special” Meetings •A “special meeting” is a meeting that is not a regular meeting (not a regularly scheduled meeting). •Called by presiding officer or majority of the members •Notice -timing: 24 hours before the special meeting, written notice must be: •Given to each member of the governing body (unless waived) •Given to each local newspaper of general circulation, radio, and TV station which has a notice request on file •Posted on the agency’s website [with certain exceptions in RCW 42.30.080(2)(b), for example, if the agency does not have a website)] •Prominently displayed at the main entrance of the agency’s principal location and the meeting site (if not that same location) ~ RCW 42.30.080 16 “Special” Meetings (Cont.) •Notice -contents: The special meeting notice must specify: •Time •Place •Business to be transacted (agenda) •Final disposition shall not be taken on any other matter at such meeting ~ RCW 42.30.080 17 Emergency Special Meetings •Notice is not required when special meeting called to deal with an emergency •Emergency involves injury or damage to persons or property or the likelihood of such injury or damage •Where time requirements of notice make notice impractical and increase likelihood of such injury or damage ~ RCW 42.30.080(4) 18 Public Attendance •A public agency can’t place conditions on public to attend meeting subject to OPMA: •For proceedings governed by OPMA, cannot require people to register their names or other information, complete a questionnaire, or otherwise fulfill any condition precedent to attendance ~ RCW 42.30.040 •Reasonable rules of conduct can be set •Cameras and tape recorders are permitted unless disruptive ~ AGO 1998 No. 15 •No “public comment” period required by OPMA 19 Interruptions and Disruptions •The OPMA provides a procedure for dealing with situations where a meeting is being interrupted so the orderly conduct of the meeting is unfeasible, and order cannot be restored by removal of the disruptive persons. •Meeting room can be cleared and meeting can continue, or meeting can be moved to another location, but final disposition can occur only on matters appearing on the agenda. More details set out in the OPMA. ~ RCW 42.30.050 20 Executive Session •Part of a regular or special meeting that is closed to the public •Limited to specific purposes set out in the OPMA •Purpose of the executive session and the time it will end must be announced by the presiding officer before it begins; time may be extended by further announcement ~ RCW 42.30.110 21 Executive Sessions Specified purposes set out in 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 take at open meeting •Publicly bid contracts •Review negotiations on performance •Public knowledge would like increase costs •Evaluate qualifications of 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 22 Executive Session to Discuss Agency Enforcement Actions, Litigation or Potential Litigation •This executive session is not permitted just because legal counsel is present •This executive session must address: •Agency enforcement action •Agency litigation or •Potential litigation ~ RCW 42.30.110 23 Executive Session to Discuss Agency Enforcement Actions, Litigation, or Potential Litigation: Three Requirements •Legal counsel representing the agency is present •Purpose is to discuss agency enforcement action, litigation or potential litigation to which the agency, governing body, or a member acting in official capacity is, or is likely to become, a party •Public knowledge regarding discussion likely to result in an adverse legal or financial consequence to the agency ~ RCW 42.30.110 24 Penalties for Violating the OPMA •A court can impose a $500 civil penalty against each member (personal liability) who knowingly attends a meeting in violation of OPMA; and $1000 for a subsequent knowing violation. •Court will award costs and attorney fees to a successful party seeking the remedy •Action taken at meeting can be declared null and void ~ RCW 42.30.120; RCW 42.30.130; RCW 42.30.060 25 Minutes –RCW 42.30.___* •Minutes of public meetings must be promptly recorded and open to public inspection •Minutes of an executive session are not required •No format specified in law * Formerly at RCW 42.32.030; To be recodified in 2017 in a new section in RCW 42.30 (OPMA) per Chap. 25, Laws of 2017, 3rd Sp. Sess. 26 27 Risk Management Tips •Establish a culture of compliance with the OPMA. •Receive training on the OPMA. •Review available resources; institute best practices. •Keep updated on current developments in OPMA; correctly apply law. •Remember: the OPMA can change through amendments, or develop through case law. •Remember: other laws can govern an agency’s meeting procedures. •Consult with agency’s legal counsel. OPMA Training •The “Open Government Trainings Act” requires OPMA training for every member of a governing body within 90 days of taking their oath or assuming their duties. RCW 42.30.205. •Refresher training occurs no later than every 4 years. •Training can be taken online, in person, or by other means. •Training resources, videos, and more information about the Act (a “Q & A”) are available on the Attorney General’s Office Open Government Training Web Page: http://www.atg.wa.gov/OpenGovernmentTraining.aspx 28 29 OPMA Assistance •The Washington State Attorney General’s Office may provide information, technical assistance, and training on the OPMA. Contact Assistant Attorney General for Open Government. •The Attorney General’s Office may issue formal opinions about the OPMA for qualified requesters. •The Attorney General’s Office has helpful materials about the OPMA and on other open government topics and resources, on its website at http://www.atg.wa.gov/Open-Government. •One example is the Open Government Resource Manual (see next slide). ~ RCW 42.30.210 AGO Open Government Resource Manual –Available on AGO Website* 30* http://www.atg.wa.gov/open-government-resource-manual **Does not yet include statutory changes resulting from 2017 sessions. Municipal Research & Services Center – Another Resource 31 32 Public Records Act Training ___________________________________________________ March 2018 Prepared by Washington State Attorney General’s Office Thanks, everyone, for helping me search for that requested record! Open Government Laws Like the Public Records Act are Often Called “Transparency Laws” or “Sunshine Laws” This is because they “shine light” on government. U.S. Supreme Court Justice Louis Brandeis once famously said, "Sunlight is the best disinfectant.” ___________________________________________________ Transparency builds public confidence in government. 2 Let Us Begin! Purpose •“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 (PRA) 3 Washington’s Open Public Records Act (PRA) •Passed in 1972 –Initiative 276 •RCW 42.56 (formerly RCW 42.17) _____________________ Most recent amendments – ESHB 1594 (Chap. 303, 2017 Laws); EHB 1595 (Chap. 304, 2017 Laws)4 5 Touchstone: •Public records of government agencies are presumed open. •Records or information in records can be withheld only by law (e.g. exemption in law). Exemptions must be “narrowly construed.” ~ RCW 42.56.030 6 PRA Applies to Records of: •State government agencies* •Local government agencies* •Extent to Legislature –pending ~ RCW 42.56.010 * And to agencies that are the functional equivalent of public agencies. PRA Does Not Apply to: •Court records (court files) •Records of certain volunteers (next slide) •Private organizations or persons* *Unless, for example, the records are used or retained by a government agency. 7 Public Record “Public record” means: •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 of physical form or characteristics.” ~ RCW 42.56.010 8 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 obtained or translated.” ~ RCW 42.56.010 •So, “public record” is broadly defined. Volunteers •ESHB 1594 (2017): records of certain volunteers are exempt from the definition of “public record.” They are: •Records not otherwise required to be retained •and are held by volunteers who •(a) do not serve in an administrative capacity, •(b) have not been appointed by the agency to an agency board, commission or internship, and •(c) do not have a supervisory role or delegated agency authority. •Change effective July 23, 2017. ~ RCW 42.56.010(3) 9 10 Note:Public Records Include… …records of agency business when they are created or retained by agency employees or officials on home computers or devices, or in non-agency email accounts or files. Text Messages (“Scope of Employment”) -Nissen v. Pierce County (Aug. 2015) •Text messages sent and received by a public employee in the employee’s official capacity are public records of the employer, regardless of the public or private nature of the deviceused to create them; thus, even if the employee uses a private cell phone. •A record that an agency employee prepares, owns, uses, or retains within the scope of employment* is a record “prepared, owned, used or retained by a state or local agency” under the PRA. •An employee’s communication is “within the scope of employment” when the job requires it, the employer directs it, or it furthers the employer’s interests. •This inquiry is always case-and record-specific. [ * The Nissen court equated “official capacity” with “scope of employment” when referring to an elected official. See also West v. Puyallup.] 11 Call and Text Logs (“Use”) -Nissen v. Pierce County •For a record to be “used”by an agency it must bear a nexus with the agency’s decision-making process. •A record held by a third party, without more, is not a “public record”, unless the agency “uses” it. In this case, that principle applied to call and text logs at the phone service provider which were not used by the agency (“the county did nothing with them”). 12 Post-Nissen v. Pierce County: •PRA requests for public records in a local elected official’s personal residence, on a personal computer, and in a personal email account (2016); and personal Facebook site (2018). •Court of Appeals: •West v. Vermillion, Puyallup (2016): Public records must be disclosed. The constitutions do not provide an individual a privacy interest in those public records. State Supreme Court denied review. (See upcoming slide on “privacy.”) •West v. Puyallup (2018): Facebook posts on an elected official‘s personal site are public records if they relate to the conduct of government and are prepared within the scope of employment or official capacity.13 14 General PRA Procedures Under PRA, agencies must: •Appoint a public records officer. •Publish procedures describing certain agency organization, operations, rules of procedure, and adopt/enforce rules/regulations*that: •Provide full public access to public records •Protect public records from damage/disorganization •Prevent excessive interference with other agency functions •Provide fullest assistance to requesters •Provide most timely possible action on requests. *See AGO Model Rules. See upcoming slides. •Publish fee schedule. See upcoming slide. •Maintain a list of laws the agency believes exempts or prohibits disclosure. •Provide certain indexes of records. •Make non-exempt records available for inspection and copying during customary business hours for a minimum of 30 hours per week, excluding holidays. Post customary business hours on the agency’s website and make hours known by other public means. ~ RCW 42.56.040; RCW 42.56.070 -.090; RCW 42.56.100; RCW 42.56.580 New PRA Procedures (ESHB 1594 and EHB 1595 –Eff. July 23, 2017) •Format for requests.No official format is required. Agencies can recommend requesters use their form or web page. Must accept in person requests made during normal office hours. •Log.Agency must keep a log of PRA requests (identity of requester if provided, date of receipt, text of request, description of records produced, description of records redacted/withheld and reasons, and date of final disposition.) •Ordinances. Local agencies should consult AGO Model Rules in developing PRA ordinances. ~ RCW 42.56.080; RCW 40.14.026; RCW 42.56.570 15 New PRA Procedures (cont.) (ESHB 1594 and EHB 1595 –Eff. July 23, 2017) •Additional training. Records officers must also receive training on electronic records. (See upcoming slides on training) •Data collection & reporting. Agencies having PRA staff and legal costs of more than $100,000/year must report 17 data points about their agencies’ PRA requests to the Joint Legislative Audit and Review Committee (JLARC). •Copy fees.New procedures for fees/authorized copy fees for electronic records. (See upcoming slide) ~ RCW 42.56.152; RCW 40.14.026; RCW 42.56.120; RCW 42.56.070 16 17 Requests for Public Records •Persons can request identifiable public records from public agencies. •Requester can use agency public records request form. (Form not required effective July 23, 2017) •If agency request form not used, requester must provide “fair notice”that he/she is seeking public records. •A request for “information” is not a request for “records” under the PRA. •At minimum, requester must identify documents with sufficient clarity to allow the agency to locate them. •Requesters can ask to inspect records, or request copies of records. Requests can be made via mail, e-mail, in person. •Agencies can adopt procedures explaining where requests must be submitted and other procedures. ~ RCW 42.56.520; RCW 42.56.080; RCW 42.56.040; RCW 42.56.100; Hangartner v. City of Seattle; Bonamy v. City of Seattle; Hobbs v. State. Requests (Cont.) •“Identifiable” records (cont.) •EHB 1595 (effective July 23, 2017): •“A public records request must be for identifiable records.” •“A request for all or substantially all records, prepared, owned, use or retained by an agency is not a valid request for identifiable records under this chapter, •“Provided that a request for all records regarding a particular topic or containing a particular keyword or name shall not be considered a request for all of an agency’s records.” ~ RCW 42.56.080 18 Requests (Cont.) •Requesters do not: •Generally need to identify purpose of request, unless required by law (e.g., restriction on providing lists of individuals for a commercial purpose). •Need to limit the number of requests they make. •Need to exhaust an agency’s internal appeal procedures prior to seeking judicial review when a record is denied and two business days have passed. (Agencies are to have review mechanisms but review deemed completed after 2 business days following the denial of inspection.) ~ RCW 42.56.070; RCW 42.56.520; Zink v. City of Mesa 19 Requests (Cont.) •EHB 1595 (eff. July 23, 2017): An agency may deny a “bot” request, under the criteria in the bill. •A “bot” request is one of multiple requests from a requestor to the agency within a 24 hour period, if the agency establishes that responding to the multiple requests would cause excessive interference with other essential function of the agency. •“Bot” request means a request for public records that an agency reasonably believes was automatically generated by a computer program or script. ~ RCW 42.56.080 20 Requests (Cont.) •Requesters must: •Clarify a request when an agency asks for clarification. •Claim or review records when the records or an installment of records is ready. •Comply with agency procedures including those that protect records from damage/disorganization (such as when viewing records). •Provide a deposit when an agency requires a deposit. •Pay for copies per fee schedule, including copies for an installment. •Requesters should also: •Promptly communicate with agency, •including to voice any concerns regarding agency action or inaction. ~ RCW 42.56.070(7) –(9); RCW 42.56.080; RCW 42.56.100; RCW 42.56.120; RCW 42.56.520; Model Rules; Zink v. City of Mesa; Hobbs v. State Auditor 21 22 Agency Responses to Requests •The agency has five business days to respond to a public records request. •Agency response can: 1.Acknowledge receipt of the request and provide a reasonable estimate for a further response; or 2.Fulfill the request; or 3.Provide an internet address and link to the records on the agency’s website (which fulfills part or all of the request); or 4.Seek clarification (still need to give estimate of time)*;or, 5.Deny the request with an accompanying written statement of the specific reasons. ~ RCW 42.56.520 *ESHB 1594 (eff. July 23, 2017) –if request unclear, give estimate to greatest extent possible 23 Seeking Clarification •An agency can seek clarification of a request if it is not reasonably clear, or does not request “identifiable records.” •Remember: agency’s rules are to give “fullest assistance.” •Agency should explain why it needs clarification, in order to provide fullest assistance to requester and to search for potentially responsive records.* •If requester does not respond to request for clarification, the agency may close the request.* ~ RCW 42.56.520 *ESHB 1594 (eff. July 23, 2017) Agency must respond to parts of request that are clear. 24 Estimate of Time for Further Response •An agency can provide an estimate of time for further response. Further response includes estimate to produce first installment. •Estimate is to be reasonable. •Factors may include, for example, time needed to: •Get clarification if necessary. •Search for records. More time may be needed if request is large or complex. •Assemble and review records. •Provide notice to affected third persons/agencies. •Prepare an exemption log if necessary. •Perform other essential agency functions. •An agency can extend the time if needed. ~ RCW 42.56.520; RCW 42.56.080; RCW 42.56.550; Andrews v. Washington State Patrol; Hobbs v. State 25 Installments •Agencies can provide records in installments,particularly for larger requests. •Agencies can request a deposit up front for copies (not to exceed 10 percent). •Agencies can provide an installment by providing links to records on its website. Note:Agencies are encouraged to post commonly-requested records on their websites. This: Makes records more accessible. Enables quicker agency responses. Enables requesters to choose to view or copy only those records they want. ~ RCW 42.56.080; RCW 42.56.120 26 Searches •An agency must conduct an adequate search for responsive records. •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. •If responsive public records are on or in employees’/officials’ personal devices, personal accounts, or personal files, those must be searched, too. •The focal point of the judicial inquiry is the agency’s search process, not the outcome of the search. •The agency bears the burden of proof to show the adequacy of the search. ~ RCW 42.56.520; Neighborhood Alliance of Spokane v. Spokane County; Hobbs v. State; Block v. City of Gold Bar; Nissen v. Pierce County. “Mechanics” of Searching/Producing Public Records Controlled by Employee •The public employee must obtain, segregate and produce to the employer those public records that are responsive to a PRA request from the employee’s personal accounts, files, and devices. •Employee may be required to submit affidavit regarding his/her search. •Also applies to agency’s public officials. ~ Nissen v. Pierce County 27 28 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 PRA or other laws. ~ RCW 42.56.050; RCW 42.56.210 -.510; RCW 42.56.550 29 Exemptions (Cont.) •When withholding part (redacting) or all of a record, agency must describe record by date, type, authors/recipients, and total number of pages. •Agency must list exemption and give brief explanation. •This information can be provided to the requester in an “exemption log” or in other formats, so long as the required information is provided. •Common exemptions are certain information in student or employment records, attorney-client privileged information, pending investigative records in certain investigations, and protected health care information. •The agency bears the burden of proof to justify the exemption. ~ RCW 42.56.050; RCW 42.56.210 -.510; RCW 42.56.550 30 Privacy •There is no general “privacy” exemption in the PRA. •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.” ~ RCW 42.56.050 This means that if information does not satisfy both these factors, it cannot be withheld as “private” information under other statutes. Fees EHB 1595 (effective July 23, 2017): •Copy fee schedule: •Agencies can charge actual costs (following certain procedures & notice/public hearing) or •A default statutory cost (following a declaration of undue burden in rule). •Alternative up to $2 for entire request (see details in statute) •EHB 1595’s default schedule includes paper copies, scanned copies, electronic records costs. •No fee for records routinely posted on agency website. •Must provide an estimate of costs to requester upon request. •Act provides for other fee arrangements in defined circumstances. •“Customized access charge” under defined circumstances. •No fees for inspection. •Court action can be brought to challenge agency’s estimate of fees. ~ RCW 42.56.120; RCW 42.56.070; RCW 42.56.130; RCW 42.56.550 31 Electronic Records Production & Disclosure –The Basics for Agencies •Remember definition of “public record” –includes electronic records:emails, texts, databases, social media records, electronic versions of printed documents, Excel spreadsheets, PowerPoint presentations, website records, videos, audio recordings, etc. Includes public records on/in personal devices/accounts. •Note other legislative statements: •RCW 43.105.351: … It is the intent of the legislature to encourage state and local governments to develop, store, and manage their public records and information in electronic formats to meet their missions and objectives. Further, it is the intent of the legislature for state and local governments to set priorities for making public records widely available electronically to the public. •Chap. 69, Laws of 2010: The internet provides for instant access to public records at a significantly reduced cost to the agency and the public. Agencies are encouraged to make commonly requested records available on agency web sites. When an agency has made records available on its web site, members of the public with computer access should be encouraged to preserve taxpayer resources by accessing those records online. 32 Electronic Records Production & Disclosure –The Basics (Cont.) •Remember there can be changes/developments in law (statutes, case law) including as they impact electronic public records. Examples: •ESHB 1594 (Chap. 303, Laws of 2017) (RCW 42.56.152): Public records officers’ required training on electronic records (retention, production & disclosure, updating &improving technology information services). •EHB 1595 (Chap. 304, Laws of 2017) (RCW 42.56.120): •Fees for copies of electronic records. •Bot requests. •Translating a records into an electronic format (including scanning a paper record) is not creating a new record. •Local governments: consultation programs, competitive grant program. (RCW 40.14.026) •O’Neill v. City of Shoreline: Nissen v. Pierce County; West v. Vermillion, Puyallup; West v. Puyallup •Producing public records located on/in home computers, personal devices, personal accounts. 33 Electronic Records Production & Disclosure –Resources •Attorney General’s Office. www.atg.wa.gov. Examples: •Open Government Training Web Page •PRA Model Rules, WAC 44-14 •Local Governments Consultation Program •Other materials. (See upcoming slides). •Municipal Research & Services Center:www.mrsc.org. Examples: •“New PRA Legislation: To Boldly Go Where the PRA Hasn’t Gone Before” •“Use of Electronic Devices During Council/Commission Meetings” •“Establishing Effective Social Media Policies for Your Agency” •“Text Messaging Policies” •“Public Records: Tackling The Tough Questions (Including Use of Smart Phones and Other Thorny Issues)” •Other materials. •Washington Secretary of State –State Archives. www.sos.wa.gov/archives. Examples: •In-person trainings on electronic records management –retention. •Advice sheets & other publications: •“Blogs, Wikis, Facebook, Twitter & Managing Public Records” •“Capture and Retention of Text Messages” •“Digital Audio/Visual –Recommendations and Best Practices” •Other materials. 34 Electronic Records Production & Disclosure –Redaction Mechanics •Electronic records redaction: •Various software programs permit standard redactions on many electronic records (Adobe Acrobat X Pro, Informative Graphics Redact-it, RapidRedact, and similar technologies). •Not all agencies have such software, or software than can electronically redact all electronic records. •For example, there may be “non-standard” redactions in some types of electronic records (videos, audios, photos, etc.) that require particular software. •In some circumstances, due to lack of software or other technical issues, it may be necessary to print out a copy of the electronic record and apply the redactions to the paper record. •An agency may need to work with its IT staff and legal counsel on such issues. 35 Electronic Records Production & Disclosure –Production Mechanics •Electronic records can be produced/delivered electronically in many ways. Delivery practices may vary among agencies, depending upon agency resources, software, or other issues (e.g. limits on size of files that can be sent/received by email). •Some examples: •Posting them on agency’s web site and provide requester links to specific records. •Delivering copies on a CD, DVD, thumb drive/flash drive. •Delivering by email. •Delivering through an agency portal or cloud-based delivery (File Transfer Protocol -FTP). •Arranging for inspection at an agency’s office, on an agency computer. •See AGO Model Rules.36 Electronic Records Production & Disclosure –Updating & Improving Technology Information Services •Agencies can consider making their websites -current technology -more robust. Examples: •Posting more commonly requested records. •Posting information about how to search for records. •Posting more information about how to request records (agency’s PRA procedures, fee schedule, request form, contact information for Public Records Officer, etc.). •Agencies can consider new technology purchases to assist them in retaining/producing records. •Examples:Portals; electronic redaction tools; texting/website capture and retention software; other software. •Master state contracts: Several vendors awarded statewide master contracts for retention -“Enterprise Content Management Systems.” State, & local agencies can use. More information on State Archives website and Department of Enterprise Services website. •ESHB 1594: Local government grants (State Archives). RCW 40.14.026. 37 Enforcement & Penalties •PRA enforced by courts for claims listed in PRA. •A court can impose civil penalties. No proof of “damages” required. •A court is to consider factors in requiring an agency to pay a penalty. •Plus, a court will award the prevailing requester’s attorneys fees and costs. •Special penalty provisions and court procedures apply to lawsuits involving inmate requests. ~ RCW 42.56.550, RCW 42.56.565; Yousoufian v. Sims 38 39 Penalty Factors A court must consider these nonexclusive factors in deciding whether an agency should pay a penalty: Mitigating factors (factors that can reduce a penalty): •A lack of clarity in the PRA request. •The agency's prompt response or legitimate follow-up inquiry for clarification. •The agency's good faith, honest, timely, & strict compliance with all PRA procedural requirements & exceptions. •Proper training & 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. ~ Yousoufian v. Sims 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 the PRA procedural requirements and exceptions. •Lack of proper training & 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 PRA 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 40 41 Penalties in Other Laws: There can be criminal liability for willful destruction or alteration of a public record. ~ RCW 40.16.010 For state employees, penalties can be assessed under the State Ethics Law if an employee intentionally conceals a record that must be disclosed under the PRA, unless decision to withhold was in good faith. ~ RCW 42.52.050 Penalties Outside of PRA PRA Training •“Open Government Trainings Act”: RCW 42.56.150, RCW 42.56.152, RCW 42.30.205. •Public records officers; statewide and local government officials. Training required depends upon position. Refresher training occurs no later than every 4 years. •Training can be taken online, in person, or by other means. •Training resources, videos, and more information about the Act (a “Q & A”) are available on the Attorney General’s Office Open Government Training Web Page: http://www.atg.wa.gov/open-government-training 42 43 Other AGO PRA Assistance •The Attorney General’s Office has provided an explanatory pamphlet and other materials about the PRA on its website at http://www.atg.wa.gov/opengovernment.aspx •The AGO has also published PRA Model Rules. Updated 2018. See upcoming slides. •The Attorney General has also appointed an Assistant Attorney General for Open Government (Ombuds). The AGO can provide technical assistance and training. http://www.atg.wa.gov/open-government-training •The AGO may provide records consultation services for local governments. In 2018, the Attorney General appointed a Local Government Records Consultant. See: http://www.atg.wa.gov/pra-consulting-program •The AGO may also review a state agency denial of a record when the agency concludes the record is exempt. ~ RCW 42.56.155; RCW 42.56.570; RCW 42.56.530; RCW 42.30.210 AGO PRA Model Rules –ch. 44-14 WAC 44 AGO PRA Model Rules (cont.) •Chapter 44-14 WAC. •Adopted under RCW 42.56.570. •Advisory and non-binding. •Provide model rule language for agencies to consider in adopting their own PRA rules. •Provide comments on model rule language, with background and references to PRA statutes and case law. •A resource for state and local agencies, requesters, the courts, trainers, others interested in the PRA. •PRA provides that local agencies should consult them when establishing local PRA ordinances. RCW 42.56.570(4). •Updated in 2018: •http://www.atg.wa.gov/model-rules-public-disclosure 45 AGO PRA Model Rules (cont.) •2018 Model Rules Updates: •Confirm that the public is entitled to request public records stored on personal devices if those records concern agency business; •Address relevant court rulings and legislative changes to the PRA including, for example, those concerning copy fees and required records training; •Address technology changes such as online records portals used at some agencies, and give examples of how agencies can provide records electronically; and, •State that an agency should reasonably organize its records. Agencies are encouraged to refer to the extensive guidance published by the Secretary of State for advice regarding records management.46 AGO Open Government Resource Manual –Available on AGO Website* 47* http://www.atg.wa.gov/open-government-resource-manual **Does not yet include PRA statutory changes which were effective July 23, 2017; or updated 2018 Model Rules. 48 Risk Management Tips for Agencies •Establish a culture of compliance with the PRA, beginning with agency leadership and support. •Train appropriate staff and officials about the PRA’s requirements. •Review agency’s PRA procedures. •Review available resources; institute best practices. •Review penalty factors. •Keep updated on current developments in PRA through legislative action or court decisions; correctly apply law. •Consult with agency’s legal counsel. Thank you! 49 Group Facilitation Core Values and Ground Rules Core Values: ●We are working from, produce, and understand valid information ●We are designing and making a free and informed choice ●We have an intrinsic, internal commitment toward actionable objectives ●We show compassion by suspending judgment and having concern for others Ground Rules: 1.Test assumptions and inferences 2.Share all relevant information 3.Use specific examples and agree on what important words mean 4.Explain your reasoning, logic, and intent 5.Focus on interests and needs, rather than positions and solutions 6.Combine advocacy with inquiry to invite feedback 7.Jointly design next steps and ways to test disagreement 8.Discuss undiscussable issues that are reducing effectiveness 9.Use decision-making that generates the level of commitment needed Reflection: ➔What do these ground rules look like in real-life behavior? ➔What does not honoring these ground rules look like? Based on the works of Argyris, Schon, & Hackman in Schwarz (2008) AGENDA REPORT FOR: City Council May 29, 2019 TO: Dave Zabell, City Manager Rick White, Community and Economic Development Director Regular Meeting: 6/3/19 FROM: Michael Morales, Deputy Director Community & Economic Development SUBJECT: Inclusivity Commission Name Change and Extension I. REFERENCE(S): Power Point Presentation - 4/22/19 Proposed Resolution II. ACTION REQUESTED OF COUNCIL / STAFF RECOMMENDATIONS: MOTION: I move to approve Resolution No. _____, amending the name of the Pasco In Equity and Diversity Inclusion, Commission the to clusivity "Pasco Commission," and extending the term of the citizen ad hoc commission, through December 31, 2020 and amending the terms, conditions and requirements of the Pasco Inclusion, Diversity and Equity Commission. III. FISCAL IMPACT: TBD IV. HISTORY AND FACTS BRIEF: The Pasco Inclusivity Commission (IC) presented the framework for an 18 month work plan to the City Council on April 22, 2019. The IC was formed as an ad hoc commission with a one year sunset in May 2018. rpositively framework plan work the While was its council, the by eceived implementation necessitates an extension of the ad hoc term through December 31, 2020. In addition, the IC has requested a name change to better encompass the nature of its community engagement work. For this reason, the proposed name change is "Pasco Diversity, Inclusion, and Equity Commission." Following Council approval of the extension and name change, the Charter will be revised, and the following additional items will be presented for consideration in the coming months: 1. A nominal budget request for expenses to carry out the plan. 2. Recommended liaison assignments to boards and commissions. 3. Specific measurement tools recommended for implementation throughout the organization. V. DISCUSSION: Inclusivity Commission 2019-20 Work Plan City Council Workshop April 22, 2019 History and Background Inclusivity Commission established by City Council in 2018. Seven members appointed May 2018: Jesse Campos, Chair Jeffery Sellers, Vice-Chair Kyle Saltz Maria Torres-Mendoza Delia Tobon Pete Rietke Abraham Regunta Beginning in August 2018, IC received monthly orientation briefings on city services and community resources. December 2018-April 2019: Developed work plan over several strategic planning sessions. Mission and Vision “Where Diversity and Equity are goals, Inclusion is the path.” Mission: A strategic partner to Pasco’s City Council which develops and promotes inclusive policies and programs. Vision: Creating, improving, and sustaining an inclusive organization, i.e. the City of Pasco, which empowers and unifies the people. Goals and Objectives GOAL #1: Foster an environment that includes, accepts, respects and appreciates all members of our community by promoting the city’s commitment to Inclusion, Diversity and Equity. OBJECTIVES A.Create an Inclusivity Commission (IC) youth subcommittee for middle and high school students. o Provides opportunity and forum for youth advisement on what their needs and ideas to improve inclusion, diversity and equity in city government and the Pasco community. o TIMELINE: October 2019-September 2020 Goal #1 Objectives Continued B.Create a portal on the City’s website and Facebook page. 1.Promote commission work products or events, and share resources that can facilitate the mission. o TIMELINE: June 2019 C.Have a presence at festivals and events which take place in Pasco. 1.Provide survey instruments and suggestion forum. 2.Impart information on city programs and services o TIMELINE: MAY 2019, Beginning with Cinco de Mayo Festival Goal #1 Objectives, Cont. D.Hold IC meetings in the community on a quarterly basis 1.Provides forum outside of city hall to impart the mission and work plan, and for residents to share experiences and offer suggestions on inclusion, diversity and equity in Pasco city government. 2.Integrate a different cultural component (food, performance, presentation) to each meeting. 3.Establish a questionnaire consistent with other city survey instruments. 4.Solicit feedback about city government and Pasco. 5.Rotate among council districts o TIMELINE: Begin end of Q3 2019 –September 2020 Goals and Objectives GOAL #2:Help the City of Pasco be more inclusive OBJECTIVES A.Improve engagement with the City. 1.Improve accessibility at City Council Meetings. 2.Research reasons for lack of participation and seek suggestions for improvement. 3.Assure that residency status is not a deterrent to engagement. 4.Provide translators when significant issues emerge. 5.Engage all media to feature effort and increase participation. Goal #2 Objectives B.Increase city government accessibility 1.Improve educational campaigns. 2.Assign commission liaisons to observe and monitor City boards, commissions and advisory committees for recommendations to enhance inclusivity, diversity and equity. o TIMELINE: September 2019-2020 Goals and Objectives GOAL #3:Promote unity, equality, understanding, diversity and inclusivity in city government. OBJECTIVES A.Introduce evaluation/assessment tools. 1.Increase accountability of commissions, departments, and activities. 2.Incorporate into management “performance dashboard” for consistency with budget and council goals. o TIMELINE: September 2020 Goal #3 Objectives B.Introduce annual inclusion audit and score card. 1.Rate inclusivity, diversity and equity of City-sponsored activities, employment, and contracting. 2.Report to Administration and City Council with results and recommendations. o TIMELINE: Begin January 2020 PROPOSED NAME CHANGE City of Pasco Inclusion, Diversity and Equity Commission QUESTIONS? RESOLUTION NO. _______ A RESOLUTION of the City of Pasco, Washington, declaring the City of Pasco an Inclusive City, amending the name to the “Pasco Inclusion, Diversity, and Equity Commission,” extending the term of the citizen ad hoc commission, through December 31, 2020 and amending the terms, conditions and requirements of the Pasco Inclusion, Diversity and Equity Commission. WHEREAS, the City of Pasco has historically been the home for diverse cultures within our region creating its unique character and opportunities, as well as a source of pride for all who live here; and WHEREAS, the City Council of the City of Pasco desires to protect and encourage our diverse culture, as well as to protect the constitutional rights of its citizens, including the right to be free of discriminatory practices and the fair application of law and to demonstrate that Pasco is a welcoming and inclusive City, where laws apply equally to all who live here, and where individuals, families, and businesses are welcome; and WHEREAS, the City Council of the City of Pasco is honored to serve the entire community and seeks to provide equal protection to our residents and access to all of the City’s services to those that live here; and WHEREAS, Article I, Section I of the Washington Constitution declares that “governments derive their just powers from the consent of the governed, and are established to protect and maintain individual rights”; and WHEREAS, the Washington State Legislature has established the “Washington Law Against Discrimination which declares the “right to be free from discrimination because of race, creed, color, national origin, sex, honorably discharged veteran or military status, sexu al orientation, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a person with a disability is recognized as and declared to be a civil right”; and WHEREAS, the Pasco City Council, by oath, declares to uphold and support the Constitution and laws of the State of Washington, and hereby reaffirms its support to do so for equal benefit of all those who live here; and WHEREAS, the Pasco City Council, to advise it in meeting these goals and responsibilities, established and created a charter for an ad hoc Inclusivity Commission in May of 2018; NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF PASCO, DOES RESOLVE AS FOLLOWS: Section 1. Declaration of City Council. The City of Pasco is hereby declared to be an Inclusive City, committed to embracing diversity and promoting equality among our work force, residents, businesses, and visitors, and established the ad hoc Inclusivity Commission in May of 2018. Section 2. Name change of Pasco Inclusivity Commission. The City Council hereby amends the Commission name to “Pasco Inclusion, Diversity, and Equity Commission.” Section 3. Extension of Pasco Inclusion, Diversity, and Equity Commission. The City Council hereby extends the term of the citizen ad hoc commission, through December 31, 2020. Section 4. Terms and Conditions for Inclusion, Diversity, and Inclusion Commission. The Pasco Inclusivity Commission shall consist of seven (7) voting members. The Mayor shall appoint the members of the commission with confirmation of the appointments by the Pasco City Council as follows: 1. The Commission Chairperson shall be selected by the City Council who shall conduct the meetings of the Commission and report to the Pasco City Council as requested or provided below. 2. A Vice-Chair selected by a majority of the Commission shall fulfill the duties of the Chairperson in absence of the Chairperson; and 3. In appointing members of the Commission, the City Council will strive to select such members to represent the general population in age, gender, race, ethnicity, sexual orientation, and national origin. 4. The term for service shall be through January 31, 2020. 5. The commission members or vacancies shall be filled in accordance with PMC 2.58.010. 6. The majority rule shall control commission meetings with each member having a single vote. 7. Commission members may not assign or grant proxies for their voting rights. 8. The City Council may appoint a City Councilmember to serve as a non-voting liaison to the commission. The City Council may direct the City Manager to appoint a staff advisor who shall serve as a non-voting liaison to the commission. Section 5. Inclusion, Diversity, and Equity Commission. The requirements of the commission will be as follows: 1. Meet one time per month at the date and time determined by the Council, or more often as may be necessary. 2. Develop and implement working plan and procedures in accordance with the Council adopted Charter. 3. Report to the City Council as progress occurs, however, not less than an annual report to the City Council. 4. All Commission Meetings shall be open to the public. 5. All Commission members must be residents who have lived within the Pasco City limits for at least one (1) year, or have a currently licensed business, operating within the City. 6. The Commission will issue special reports at the request of the City Council at any time during its sitting. 7. The Commission will be an advisory board to the City Council. Section 6. Goals of Inclusion, Diversity, and Equity Commission. The goals of the Pasco Inclusivity Commission are as follows: 1. Examine the practices and procedures of the City of Pasco to identify strategies to create a greater feeling of inclusion and welcoming for all who live and work in Pasco. 2. Engage with Pasco residents, interest groups, and businesses, seeking feedback on their experiences that can improve life in our community. 3. Identify strategies that help the City to be more inclusive in engaging our residents and businesses that will better promote unity, equality, and understanding in Pasco. 4. Identify funding strategies to implement these goals. 5. Present recommendations to the Pasco City Council on how to achieve the goals above. Section 7. Celebration of Diversity. The Commission shall provide the City Council with a report on opportunities to recognize and celebrate Pasco’s diverse culture. Section 8. This Commission shall expire on December 31, 2020 unless extended by a majority vote of the Pasco City Council no less than ninety (90) days prior to the date of expiration. If so extended, the term shall be extended by such period as determined by the City Council.. Section 9. Effective Date. This Resolution shall be effective upon adoption. Section 10. Amendments to Charter. City Council further directs the City Manager to amend the charter for the Commission to reflect the aforementioned changes, to be submitted to the City Council for adoption within sixty (60) days of the date of the passage of this Resolution. PASSED by the City Council of the City of Pasco this 3rd day of June, 2019. CITY OF PASCO _________________________________ Matt Watkins, Mayor ATTEST: APPROVED AS TO FORM: _________________________________ ______________________________ City Clerk Eric Ferguson, City Attorney