Joshua Freed text messages regarding supervised consumption sites since 2016-09-01

Phil Mocek filed this request with the Bothell City Council of Bothell, WA.
Est. Completion Oct. 3, 2017
Status
No Responsive Documents

Communications

From: Phil Mocek

To Whom It May Concern:

Pursuant to RCW Ch. 42.56 (Public Records Act), I hereby request the following records:

Text messages (i.e., SMS messages) and other mobile-phone-based text communications (e.g., Signal Messenger, WhatsApp, Wire, Wickr, Telegram, iMessage, Facebook Chat, SnapChat, Slack, Glip, Facebook and Twitter "direct messages," etc.), addressed or "CC'd" to Bothell City Council member Joshua Freed or any alias of his, sent by Mr. Freed, or sent on behalf of Mr. Freed, since September 1, 2016, on personal or work-specific devices operated by or otherwise under the control of Joshua Freed, regarding any of the following:

- supervised consumption sites
- safe consumption sites
- supervised drug consumption sites
- safe drug consumption sites
- supervised injection sites
- safe injection sites
- supervised injection facilities
- safe injection facilities
- SCSs
- SIFs
- heroin injection sites
- community health engagement locations
- CHELs
- initiative 27
- I-27
- Impaction

In the event that the search for responsive records involves a public employee's good-faith search of his or her personal device, please provide a reasonably detailed affidavit attesting to the nature and extent of that search. Please be aware of the following, quoted from the ["Public Records Act Court Decisions" section][1] of the website of Municipal Research and Services Center, which shows the courts' resolution of conflict between the public's right to oversight of governmental activities and the privacy rights of pubic employees as it pertains to their personal mobile devices:

> West v. Steve Vermillion City of Puyallup, 196 Wn. App. 627 (11/8/2016) – Vermillion, a city councilmember, maintained a private computer on which he maintained some private matters along with some items that related to his position on the city council. West requested the “communications received or posted” through a personal website and associated email account run by the city councilmember. Vermillion refused to provide the documents found at his home, on his personal computer and on his personal email account, citing his rights of privacy under the state and federal constitutions. West sued and the trial court required Vermillion to provide those documents that were public. On appeal, the court affirmed, holding that it was proper to require the production of emails from a personal email account that met the definition of a public record and to require submittal of an affidavit in good faith attesting to the adequacy of the search for the requested records. The court held that the First and Fourth Amendments to the United States Constitution and article I, section 7 of the Washington Constitution do not afford an individual privacy interest in public records contained in the personal email account. In reaching its decision, the court relied on the recent case Nissen v. Pierce County, 183 Wn.2d 863 (2015), which related to records found on a private cellphone. The records, even if they are on a private device, may be subject to disclosure if the person “acts within the scope of his or her employment,” in which case the actions are tantamount to "the actions of the [body] itself." If the records "relate to the conduct of government or the performance of any governmental or proprietary function" and are "prepared, owned, used, or retained by an agency," they are potentially public records subject to disclosure. There is no constitutional privacy right to records that are public records. The possible disclosure of public records does not violate the right to association.

[1]: <http://mrsc.org/Home/Explore-Topics/Legal/Open-Government/Public-Records-Act-Court-Decisions.aspx>

The requested documents will be made available to the general public, and this request is not being made for commercial purposes.

In the event that there are fees, I would be grateful if you would inform me of the total charges in advance of fulfilling my request. I would prefer the request filled electronically, by e-mail attachment if available or CD-ROM if not.

Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within 5 business days, as the statute requires.

Sincerely,

Phil Mocek

From: Public Records

Hello Mr. Mocek,

The City is in receipt of your request for public records as described in your below email.

Your request is being processed. It is anticipated that any responsive documents will be made available by September 25, 2017. If records are ready sooner, or if we need more time to complete your request, I will contact you.

Please feel free to contact me with any questions or concerns.

Thank you.

Aimee Rosse
Public Records Specialist
18415 101st Ave NE
Bothell, WA 98011

From: Public Records

Dear Mr. Mocek:

We had a slight delay with providing the full communication of this request to Mr. Freed. I anticipate having a response to you by Tuesday, October 3, 2017 in order to allow Mr. Freed time to search and reply to us. I apologize for the delay. Please let me know if you have any questions.

Thank you.

Aimee Rosse
Public Records Specialist
18415 101st Ave NE
Bothell, WA 98011

From: Public Records

Dear Mr. Mocek:

Mr. Feed has completed his search for the records identified in your request for public records (see below) and found no responsive records; therefore, your request is now completed and closed.

Please feel free to contact me with any questions or concerns.

Thank you.

Aimee Rosse
Public Records Specialist
18415 101st Ave NE
Bothell, WA 98011

From: Phil Mocek

Dear Ms. Rosse,

I received your e-mail of October 3. In it, you informed me that Mr. Freed searched his own device(s) for records responsive to my request.

Please provide, as I requested on September 7, a reasonably-detailed affidavit from Mr. Freed attesting to the nature and extent of the search he performed.

Cordially,
Phil Mocek

From: Public Records

Hello Mr. Mocek:

We do not have an affidavit from Mr. Freed as you have requested, however our Legal department is in the process of drafting one. I will be happy to provide it to you once it is completed.

Thank you.

Aimee Rosse
Public Records Specialist
18415 101st Ave NE
Bothell, WA 98011

From: Bothell City Council

Dear Mr. Mocek:

Please see the attached Affidavit regarding Mr. Freed's text message search per your request for same. I apologize for the delay. Mr. Freed executed the Affidavit on Tuesday but I was out of the office the last two days.

Your request is completed and closed (per my emailed response dated October 3, 2017 of no responsive records) but please let me know if you have any questions or concerns.

Thank you and have a nice weekend.

Aimee Rosse
Public Records Specialist
18415 101st Ave NE
Bothell, WA 98011

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