OPEN PUBLIC RECORDS

Washington State Attorney

General’s Office

October 2010

Timothy D. Ford

Open Government Ombudsman

Assistant Attorney General for Government

Accountability

WHAT IS AN OPEN GOVERNMENT OMBUDSMAN?

Ombudsman Position Created by AG Rob McKenna

Provides Assistance to the Public and Agencies

Training on Compliance with the Public Records Act and Open Public Meetings Act

Provides Informal Advice Letters interpreting those Laws

Advocates for Greater Transparency and Governmental Accountability

Promotes Legislative Reform & serves on the Sunshine Committee

Contact info: timf@atg.wa.gov or (360) 586-4802

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TRAINING OBJECTIVES

Learn and Discuss the following:1. History & Purpose of the Public Records Act2. General agency obligations under the PRA3. What is a “public record”? 4. Valid requests5. Agency initial response & reasonable estimates6. Exemptions and how they apply7. Managing disclosure, fees, review of denials8. Agency liability9. Attorney General’s model rules10. Recent case law & legislative updates11. Tips and Resources

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HISTORY OF THE PUBLIC RECORDS ACT

Passed in 1972 as part of Public Disclosure Initiative (I-276) with a voter approval of 72%

All public records must be disclosed unless there is a statutory exemption

Only 10 exemptions in I-276; now over 300 exemptions exist throughout RCW’s

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PURPOSE OF THE PUBLIC RECORDS ACT

The People do not yield their sovereignty to the agencies which serve them.

They 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.

Remain informed so they may maintain control over the instruments they have created.

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GENERAL OBLIGATIONS UNDER THE PRA

Agencies shall appoint a public records officer. RCW 42.56.580. Be a point of contact for the public Ensure an agency’s compliance with the PRA May be from another agency

Name and contact info must be published. RCW 42.56.580. State agencies – in State Register with Code Reviser Local agencies – in a way reasonably calculated to

provide notice to the public (including place of business, internet, and other publications)

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GENERAL OBLIGATIONS CONTINUED

Duty to Publish – RCW 42.56.040 Describe agency organization, operations, and

procedures Procedural and substantive rules How to submit requests for information and copies

Index agency records – RCW 42.56.070 Final adjudication orders Adopted policies and interpretations Administrative manuals and instructions Planning policies, goals, and decisions Factual reports and studies Agency determinations of rights and responsibilities Local government may waive index requirement

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GENERAL OBLIGATIONS CONTINUED

Agencies shall adopt reasonable rules. RCW 42.56.100.

Provide full public access to public records

Protect public records from damage or disorganization

Prevent excessive interference with other essential functions

Provide fullest assistance to requester, and most timely possible action

Parmelee v. Clarke, 147 Wn. App. 1035 (2009)

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WHAT IS A PUBLIC RECORD?

RCW 42.56.010(2): 1. Any writing 2. which contains information relating to the

conduct of government or the performance of any governmental or propriety function

3. prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics.

Concerned Ratepayers Ass’n v. PUD No. 1, 138 Wn.2d 950 (1999).

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“WRITING” MEANS…. 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.

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WHAT IS A VALID REQUEST?

Agency forms should be encouraged, but are not required. “No official format for a valid request”. Hangartner v. City of Seattle, 151 Wn.2d 439 (2004).

Request must be for “identifiable” records Not a request for general information. There must

be a reasonable description of the record. Bonamy v. City of Seattle, 92 Wn. App. 403, 410 (1998)

No duty to create records. Smith v. Okanogan County, 100 Wn. App. 7, 14 (2000)

An “identifiable record” is one that agency staff can reasonably locate. WAC 44-14-04002.

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WHAT IS A VALID REQUEST?

Agencies may not distinguish between requesters, or require the purpose of a request. RCW 42.56.080.

Prohibited disclosure: “lists of individuals requested for commercial purposes”. RCW 42.56.070(9). A “profit expecting” business activity. AGO 1975 No 15. Access to raw data not prohibited even if a person could

construct a list of individuals. AGO 1975 No 15. Records have a “basic character”. The mere fact that real

property assessment rolls include an identification does not make those records a “list of individuals”. AGO 1980 No. 1.

Is there actual knowledge of a commercial use?

Agency forms may condition disclosure for lists of individuals with the use of a signed declaration.

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HOW SHOULD AN AGENCY INITIALLY RESPOND?

Within five (5) business days an agency must:

1. Provide the record(s)**, or

2. Acknowledge receipt of request and provide reasonable estimate of response time, or

3. Deny the request and explain why, or

4. Seek clarification.

** You may also fulfill disclosure by providing an internet address and link to the agency website (SB 6367)

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WHAT IS A “REASONABLE” ESTIMATE?

The time required to fully respond. WAC 44-14-04003(6).

1. Assemble and review records “An agency must conduct an objectively reasonable search for

responsive records”. WAC 44-14-04003(9).

2. Notice to persons named in the record Notice should be provided early, only if arguably exempt, and specify a

date for disclosure. WAC 44-14-04003(11). The requester has an interest in any legal action to prevent disclosure

of the requested records. WAC 44-14-04003(11). The agency's notice should inform the third party that he or she should

name the requestor as a party to any action to enjoin disclosure. Burt v. Dept. of Corr., ___ Wn.2d ___ (2010)

3. Redact exempt information For electronic records such as data bases, an agency can sometimes

redact a field of exempt information by excluding it from the set of fields to be copied. WAC 44-14-04004(4)(b)(i).

4. Create a withholding index. WAC 44-14-04004(4)(b)(ii).14

“REASONABLE” ESTIMATES Based on complexity and number of requests, agency

resources, and other agency essential functions.

“An agency should not use the same estimate for every request”. WAC 44-14-04003(6).

“An agency should briefly explain to the requestor the basis for the estimate in the initial response”. WAC 44-14-04003(6).

“Extended estimates are appropriate when the circumstances have changed”. WAC 44-14-04003(6).

Explain the need to revise an estimate. Routine extensions with little or no action show that previous estimates probably were not “reasonable”. WAC 44-14-04003(6).

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REASONABLE ESTIMATE CONTINUED

“Unjustified failure to provide the record by the expiration of the estimate is a denial of access to the record”. WAC 44-14-04003(10).

Violante v. King County Fire Dist. No 20, 114 Wn. App. 565 (2002). Request for a copy of 2001 budget. 1st request (4/18/2001) - ignored. 2nd request (4/27/2001) - 14 day estimate for production.  3rd request (5/18/2001) - $$ amount provided, no budget. 4th request (5/25/2001) - No response.    Lawsuit filed (6/21/2001) - Disclosure (8/3/2001)

Viewed objectively the lawsuit was necessary to obtain records. Plaintiff awarded costs and penalties for delay.

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WHEN CAN RECORDS BE WITHHELD?

Based on a statutory exemption. Agencies must provide a withholding log

Construe exemptions narrowly Redact exempt information and disclose

non-exempt information Exemptions exist in the PRA and other

laws If a conflict exists between the PRA and

any other law, the PRA shall govern

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WHAT RECORDS ARE EXEMPT?

Personal information in files maintained for clients of public institutions. RCW 42.56.230(1).

Personal information in files maintained for employees, if private. RCW 42.56.230(2).

Preliminary drafts or recommendations in which opinions are expressed or policies formulated

Attorney advice or work. (Peanut allergy case) Other exemptions in law (FERPA, Trade Secrets Act, HIPAA

& health care information, etc.) RCW 42.56.565 (Inmate requests)

made to harass or intimidate the agency or its employees;

HB 1317 (Exempting photos and dates of birth for criminal justice agency workers)

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IS THERE A “PRIVACY” EXEMPTION?

No general privacy exemption. See AGO 1988 No 12 Privacy must be incorporated into an element of a

specific exemption. For example: Personal information in files maintained for employees, if private. RCW 42.56.230(2).

Privacy is invaded if disclosure is 1) Highly offensive to a reasonable person; AND 2) not of legitimate concern to the public. RCW 42.56.255.

Tiberino v. Spokane County, 103 Wn. App. 680 (2000) Excessive personal emails - employee discharged Emails an exhibit for legal defense in lawsuit Email usage a public record but exempt (violates

privacy) Check your agency computer/email policy!

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WHAT IS A VALID EXEMPTION LOG?

Rental Housing Association of Puget Sound v. City of Des Moines, 165 Wn.2d 525 (2009).

Log allows requester to make a “threshold determination” of whether the claimed exemption is proper

Log should identify: type of record, date, pages, author, recipients, statutory exemption and brief explanation. WAC 44-14-04004(4)(b)(ii)

No log? – Statute of Limitation unenforceable

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MANAGING DISCLOSURE

Records must be available during customary business hours

Zink v. City of Mesa, 140 Wn. App. 328 (2007) City of Mesa – Population of 440 172 requests over 2.5 years; City limited its hours Administrative difficulty does not excuse strict

compliance Copies may be provided in batches 10% Deposit may be charged for copy costs AG’s Model Rules:

Document compliance in a closing letter and retain copies provided. WAC 44-14-04006

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ELECTRONIC RECORDS & DISCLOSURE

Agencies should develop, store, manage, and make public records widely available electronically. RCW 43.105.250.

Agencies should provide electronic records in an electronic format when requested. Use a commercially available format or translatable format. WAC 44-14-05001; Mechling v. City of Monroe, 152 Wn. App. 830, 849 (2009).

O’Neill v. City of Shoreline, 145 Wn. App. 913 (2008). (accepted for review by Supremes)

Personal email account “Metadata” specifically requested Retention and a “thorough search”

Moore v. DOC 22

WHAT FEES MAY BE CHARGED?

No inspection or search fees. Copying fees may not exceed 15 cents per page

unless an agency determines its actual costs. Actual costs may include staff time if directly related

to copying and shipping. Electronic copies cost practically nothing. Actual staff time for scanning may be charged if

determined pursuant to RCW 42.56.070(7). Agencies should send a scanning/copying project to

an outside vendor if quicker and less expensive. WAC 44-14-07001(5).

AG’s Model Rules: Agencies are encouraged to compare their scanning and other copying charges to the rates of outside vendors. WAC 44-14-07003.

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REVIEW OF DENIALS

Retain records until request is resolved. RCW 42.56.100

Agencies shall review denials, and review is deemed complete after two business days. RCW 42.56.520

Attorney General shall provide opinion of state agency denials when requested. RCW 42.56.530

AG Open Government Ombudsman provides technical assistance to public for access to public records and meetings

Citizen lawsuit may be filed in court within 1 year of denial or last production. RCW 42.56.550

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AGENCY LIABILITY Agency has the burden of proof. Payment of court costs

and attorney fees. RCW 42.56.550. Yousoufian v. King County, 165 Wn.2d 439 (January 15th,

2009) (withdrawn), now see March 25th, 2010 decision. Payment of mandatory penalties:

$5 to $100 per day for unlawful delay or denial Seven mitigating factors:

1. Unclear request,

2. Prompt response, or legitimate clarification inquiry,

3. Good faith**, honest, timely, and strict compliance with all PRA procedural requirements and exceptions,

4. Proper training and supervision of the agency's personnel,

5. Reasonableness of any explanation for noncompliance,

6. Helpfulness** of the agency to the requestor,

7. Existence of agency systems to track and retrieve.

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AGENCY LIABILITY CONTINUED

Nine aggravating factors:1. Delayed response (especially where time is of the essence**),

2. Lack of strict compliance by the agency with all the PRA procedural requirements and exceptions,

3. Lack of proper training and supervision of the agency's personnel,

4. Unreasonableness of any explanation for noncompliance by the agency,

5. Negligent, reckless, wanton, bad faith, or intentional noncompliance with the PRA by the agency,

6. Agency dishonesty,

7. Public importance of the issue related to the request (where forseeable to the agency**)

8. Actual personal economic loss to the requestor resulting from the agency's misconduct, where the loss was foreseeable to the agency

9. Amount necessary to deter future misconduct by the agency considering the size of the agency and the facts of the case.26

CASES CITING THE AG’S MODEL RULES

Mechling v. City of Monroe, 152 Wn. App. 830, 849 (2009). “Consistent with the statutory duty to provide the fullest assistance and the model rules . . .”. Remand to determine if it is reasonable and feasible to provide copies in an electronic format. WAC 44-14-05001.

Koenig v. Pierce County, 151 Wn. App. 221, 223 (2009). Model rules are nonbinding, and the PRA does not require an agency to coordinate across departmental lines. WAC 44-14-01001.

Beal v. City of Seattle, 150 Wn. App. 865, 874-875 (2009) AG’s rules are non-binding but contain persuasive reasoning. WAC 44-14-03006 (Requestors are strongly encouraged to make written requests). 27

CASES CITING THE AG’S MODEL RULES

Rental Housing Association of Puget Sound v. City of Des Moines, 165 Wn.2d 525, 539 (2009) (Attorney General’s model rules require an agency to create a withholding index or privilege log when claiming an exemption from disclosure. WAC 44-14-04004(4)(b)(ii).)

Soter v. Cowles, 162 Wn.2d 716, 753-754 (2007) (The Attorney General's model rules on public disclosure explain that agencies can seek injunctive relief. WAC 44-14-08004(5)(c).)

Burt v. Dept. of Corr., ___ Wn.2d ___ (2010) (“[i]f an injunctive action is filed, the third party or agency should name the requestor as a party or, at a minimum, must inform the requestor of the action to allow the requestor to intervene.” WAC 44-14-04003(11)) 28

CONSEQUENCES OF IMPROPER DENIAL

Public trust damaged; more requests are filed

Newspaper publishes critical article

Careers damaged

Taxpayers pay attorney fees, costs, and penalties

Municipal bankruptcy?

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TIPS Annual training for personnel with public

records related job duties (Not required, but a good idea)

Right Attitude: The people are sovereign and agencies are

the servants. “Fullest assistance” reduces hostility

When in doubt – Disclose! Agencies may waive certain exemptions No liability for “good faith” disclosures

Beware – Newspapers buy ink by the barrel Ask the Ombudsman

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RESOURCES AG’s Open Government Ombudsman

timf@atg.wa.gov (360) 586-4802 Municipal Research & Services Corp.

www.mrsc.org (206) 625-1300 Model Rules on Public Disclosure

www.atg.wa.gov/ModelRules.aspx Secretary of State (retention of records)

www.secstate.wa.gov/archives/RecordsManagement/

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QUESTIONS?

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