Public Records Act

Posted on August 6, 2016 · Posted in Video Directory

Special Note: The following discussion of Washington’s Public Records Act (RCW 42.56) was prepared by Spokane attorneys Duane M. Swinton and Tracy N. LeRoy for presentation at a 2006 Open Government Forum hosted by the Washington Coalition for Open Government in Spokane. Legal citations have been edited from this material; however, the complete text file with those citations is available at the link following the article. Also note that any overview of the Public Records Act is affected by amendments to that act and to other state statutes related to public records access. Updates will be provided here as appropriate. Washington State is available through the link following the article, and at WCOG’s segment dealing with Public Records Act exemptions.

Your Right To Access Public Records
The Washington Public Records Act (the “PRA”), RCW 42.56, was adopted by the Legislature in 2006 and reflects a broad policy favoring access to public records. As such, the PRA requires access to all public records absent an applicable specific statutory exemption, and includes statutory penalties for agencies that wrongfully withhold documents.

However, the policy of open disclosure has been constricted by legislative and judicial action.

When adopted, the PRA featured just 10 statutory exemptions, a list that has grown to over 100. In addition, other statutes than the PRA contain records exemptions that total more than 400.

The Purpose of the Public Records Act
The legislature was explicit that the PRA serves to inform the public and allow the public insight into the workings of public agencies:

The people of this state do not yield their sovereignty to the agencies that serve them. The people, in delegating authority, do not give their 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 that they may maintain control over the instruments that they have created. The public records subdivision of this chapter shall be liberally construed and its exemptions narrowly construed to promote this public policy.

The PRA also notes that public confidence in government is “essential” and “can best be sustained” by an open and accessible government:

Public confidence in government at all levels is essential and must be promoted by all possible means. . . 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…[Though] [m]indful of the right of individuals to privacy and of the desirability of the efficient administration of government, 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.

Washington courts have incorporated these policy statements into the review process concerning access to public records, and routinely note that the PRA is to be liberally construed to promote full access to public records, and exemptions to the PRA are to be narrowly interpreted.

What Constitutes a Public Record
The PRA defines “public records” broadly:

Public record includes 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.

Likewise, a “writing” includes any kind of document:

A writing includes any 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 a combination thereof, and all papers, maps, magnetic or paper tapes, photographic films and prints, motion picture, film and video recordings, magnetic or punch card, disc, drums, diskettes, sound recordings and other documents including existing data compilations from which information may be obtained or translated.

E-mails of governmental officials are public records.

Even if records are not located at a public agency, they still may be public records if they were prepared, or owned or have been used by a state or local agency. For example, a settlement agreement retained only by an insurance company that involves a public agency is a public record. However, independent contractors who work with public agencies are not subject to the PRA. Likewise a promise by a public agency of confidentiality regarding a certain record does not override provisions of the Public Records Act.

Procedures to Request Public Records
The PRA does not require a request be made in writing or include any specific statutory citation. However, making a request in writing generally is preferred as a written request provides a record of the date the request was made. A person seeking public records need not cite the PRA specifically, but should “state the request with sufficient clarity to give the agency fair notice that it ha[s] received a request for a public record.”

A sample public records request letter is available.

A requestor may seek to inspect the public records or receive a copy. Public records must be available for inspection during the regular business hours of the agency at issue, or, if the agency is not open at least 30 hours per week, must be available from 9a.m. to noon and 1p.m. to 4p.m., Monday through Friday.

Agencies may not charge a fee for locating documents or for inspection of public records. However recent changes and additions to records access laws now allow agencies to charge a reasonable amount when searching for and accumulating large volumes of requested records (Link fee summary item here).

If a person seeks a copy of a public record, the agency may charge a reasonable copying cost. Such fees are posted for public access on websites and in offices where public records requests are made. Public agencies must make available facilities for copying public records unless this would unreasonably disrupt the operations of the agency.

Importantly, a requesting party is not required to state a purpose for the request.

Public agencies may not distinguish between requesting parties or require a requesting party to show cause for the request. Stated differently, the reason a person seeks a public record is irrelevant. However, the method by which a person may obtain access (copies or inspection) may be constricted if the requesting party is an inmate in a correctional facility.

An Agency’s Duty to Respond
After receipt of a request for public records, a public agency must respond within five (5) business days by either providing the record; acknowledging receipt of the request and providing a reasonable estimate of the time necessary to respond; or denying the request.

If access to the record is denied, the agency must state in writing the specific exemption for denying access. The agency must further conduct a review of the denial. Such review is complete after two days and constitutes final agency action for purposes of judicial review.

An agency is not required to create records that do not already exist to respond to a public records request. If part of the record is nondiscloseable, then that part should be deleted from the record requested and the balance made available to the requesting party.

A Person Identified in a Record May Request an Injunction

Preventing Release
A person identified in a record may request an injunction from Superior Court to prevent release of a record. Injunctive relief available under the PRA appears to be limited to persons identified in public records. The court may grant injunctive relief blocking the disclosure of public records only if the court finds both that disclosure is not in the public

Interest and that disclosure would cause substantial and irreparable damage to a person or a vital government function.

Should a person identified in a public record seek to prevent its release by filing a lawsuit against the public agency where the record is held, — not the requesting party — the requesting party generally is able to intervene in the lawsuit to protect his or her interests in public disclosure of the subject record. Requiring the person seeking injunctive relief to litigate against the agency is one way that costs for the requesting party are kept minimal. A requesting party generally will not be forced to litigate and defend the request unless he or she chooses to bring suit. However, a requester faces risk of a lawsuit any time he or she makes a public records request in instances described in this section.

More information on agency notification.

Procedure After an Agency Denies a Public Records Request
If access to a record is denied, the person making the request for access may request the Superior Court in the county in which the record is maintained to require the agency to explain why the record should not be made available.

The requesting party may also seek review of the denial by the Attorney General, who will provide a written opinion. An Attorney General Opinion, however, is not binding either on the public agency or the requesting party. Learn more about how to deal with denial.

If a person prevails against an agency, it is mandatory that the requesting party be awarded attorneys fees and daily penalties — based on the number of days access to the record was withheld between — $5 and $100 per day. Even if a party only partially prevails on obtaining access to some, but not all records, attorneys fees and penalty awards should be granted under the theory that, but for the action being brought, the record would not have been released and the requesting party has prevailed on at least some of the arguments raised.

The statutory penalty must be awarded even if the Court finds that the public agency did not deny the request in bad faith or if the public records lawsuit was not the precipitating factor leading to disclosure.

Key Exemptions from Disclosure
The PRA includes over 100 separate exemptions that exclude certain public records from disclosure, plus another 400-plus exemptions to disclosure are contained in other state statutes.

See discussion of public records exemptions.

Exemptions from Public Records Disclosure and Confidential Records – Code of Revisers Office

 

Useful Links:

Hospital and Law Enforcement Guide to Health Care Related Disclosure

Concise Explanatory Statement – Model Rules on Electronic Records

Public Records Act – Model Rules

Public Records – The Attorney-Client Privilege and Work Product Doctrine