Public Records Act Frequently Asked Questions from the Washington Association of Public Records Officers

March 2010

By Ramsey Ramerman, Assistant City Attorney, City of Everett,
with Amy Cleveland, Records Manager, City of Olympia

The best step agencies can take to increase transparency and limit their liability under the Public Records Act (PRA) is to make sure their Public Records Officers are fully educated about the requirements of the PRA. A group of Public Records Officers including myself recently formed the Washington Association of Public Records Officers (WAPRO) to help make educational opportunities more available. On January 26, over 300 members of WAPRO attended WAPRO’s inaugural training event in Lakewood Washington.

One of the primary reasons for creating WAPRO is that public records officers have a lot of the same questions and can help each other with the answers to those questions. In that vein, attendees at the January 26 training were invited to submit note cards with questions. The first half of the questions and answers to them are posted below.

These responses are not legal advice. Consult with your attorney.

WAPRO Frequently Asked Questions and Answers Part 1

A. Identifying A Request (#1-#4)

B. What Qualifies as a Public Record? (#5-#8)

C. Scope of Search (#9A-#20)

D. Reasonable Time Request (#20-#28)

E. Costs (#29-#30)

F. Production (#31A-#35)


 

These responses are not legal advice. Consult with your attorney.

A. Identifying a Request

Question 1

The PRA does not require you to respond to information requests, but it is often a best practice to do so. First, it’s more transparent to answer the question. Second, it may also be easier and cheaper. Usually an information request can be turned into a public records request that is a lot more burdensome than just responding to the information request. So when you are considering how much time you want to spend responding to an information request, ask yourself how much time would it take to produce the records that answer the questions versus just answering them.

Question 2

For a verbal request to qualify as a request for public records, it must (1) be a request to inspect or for a copy of an identifiable public record and (2) be clear enough to put a reasonable person on notice that the request is being made pursuant to the Public Records Act. Most of the time, if condition (1) is met, you should assume it is a PRA request. But in some situations, like in Beal v. City of Seattle, 150 Wn. App. 865 (2009), there may be other reasons why you might feel obliged to provide access to a public record. That being said, if the thought enters your mind that this may be a PRA request, a court may find the request was clear enough, so you should at least clarify.

A requester does not need to use any magic word or cite to the PRA. Moreover, the request does not need to be in writing or submitted on any particular form. The real utility of Beal v. City of Seattle is as a defense – if your agency did not treat a request as a PRA request, it may be that the request was not sufficient to put you on notice.

Question 3

The requester does not need to specify the type of record he is requesting. If someone requests “all documents related to last night’s council meeting,” you need to provide all records you can reasonably locate, in whatever format. If one of the council members tells you she has a voicemail about last night’s meeting, it should be produced.

That being said, this does not mean you have to search voicemails every time you get a public records request. The PRA only requires you to produce “identifiable public records.” An identifiable record is a “reasonably locatable record.” A record is reasonably locatable if you can reasonably locate it using your records management tools, including your filing system and electronic search tools.

In most cases, your records management tools will not allow you to search voicemails. If the only way you could locate a responsive voicemail would be to listen to each voicemail one by one, the PRA does not require you to take that step.

There are situations where you will have to produce voicemails, however. For example, if you have integrated email/voicemail and someone files a voicemail in a folder related to a topic that is the subject of the request. Or if someone happens to remember a voicemail on that topic that has not been deleted. Another time you would need to produce voicemails is if the request is for all voicemails sent to a particular person or received on a particular day. In those cases, you could reasonably locate responsive voicemails. Note: this is different from a request for all emails sent to a person on a particular topic – unless that person knows of a particular voicemail, the only way you could locate the voicemail would be to listen to all of the voicemails.

In summary, you will need to produce a voicemail if the voicemail is a reasonably identifiable record responsive to a request. It will only be identifiable if it’s reasonably locatable, and searching voicemails one by one is not reasonable.

Question 4

For bullets 1 and 2, see response to Question 2.

If you have posted a record on your website, you still must respond to the public records request like any other request, but beginning June 10, 2010, you will be able to “respond” by providing the requester with a link to that record. If the requesters still say they want to “see” a record, you will have to provide them a copy, but can charge them the standard charges (at $0.15 per page for hard copies).

If you are working collaboratively with an outside entity and you are sharing records back and forth, then you don’t need to treat every request for a record as a PRA request. This is similar to the Beal case. That being said, it is not a bad idea to document this issue at the start, when everyone is friendly. Consider having an email exchange where the outside entity clearly agrees that your agency should only treat requests for records as public records requests if the entity specifically makes it clear (i.e., by citing to the PRA) that a PRA request is being made. This way you can avoid a Beal-type dispute if the relationship later sours and they are seeking their pound of flesh by claiming some past request was really a PRA request.

These responses are not legal advice. Consult with your attorney.

B. What Qualifies as a Public Record?

Question 5

Anything that qualifies as a “writing” that relates to the conduct of government that is in your agency’s possession will qualify as a record. Therefore, the original post-it notes are still public records. They likely have no retention value, so do not need to be kept, but if you still have them, you would have to produce copies if they were requested.

Question 6

Yes, sign-in sheets are public records. There is no generic exemption for addresses, email addresses and phone numbers, so the sheets are also subject to disclosure unless requested for a commercial purpose. The law does not require you to provide the public notice, but I think this is a good idea because members of the public are often unhappily surprised about the scope of the PRA. You might want to add a sentence on the sign-in sheet stating the information (name, address, phone, email, etc.) on the form will be released in the event of a public records request.

Question 7

The definition of “public record” covers any records “used” by an agency – the agency does not necessarily have to have a copy of the record. So if someone is using a personal email account to conduct agency business – as was the case in Mechling v. City of Monroe, 152 Wn. App. 830 (2009) – then those personal emails are subject to disclosure.

Question 8

Under most circumstances, emails on your personal email account that don’t relate to agency business will not qualify as public records subject to disclosure, and the contents of the emails themselves are likely not collected. But there could be some circumstances where that is not the case. For example, if you were disciplined for excessive internet use and your personal emails were collected as part of the evidence, then those emails could become public records. While this is safer than using agency email for personal emails, there is still some risk. Check with your IT department or your agency’s policies on the issue.

Question 9A

If you are only accessing an agency email account through the web, the email itself is very likely captured on your agency’s server. Only the work email on your personal computer is a public record. This could happen if you copy a message or file from your agency email account to your personal computer. If the evidence shows that you, at one point in time, had a work record stored on your personal computer and you cannot produce that record, there is a risk that your agency may try to (or be ordered by a court to) seize your entire computer to look for that public record. While there may be some constitutional issues with that result, it appears to be what the Court of Appeals in O’Neill v. City of Shoreline, 145 Wn. App. 913 (2008) ordered. To limit this risk, if you must save copies of public records on a person device, have a diligent practice of always putting agency records in one location on your computer.

Question 9B

See the answer to Question 9A. It is only the actual record (not your entire computer) that is a public record. If you never save the record on your computer, the thumb drive would contain the public record. But if you can’t find a public record that was stored on your computer, the risk of having your entire computer “infected” with the Public Records Act occurs.

The same is true for the use of personal email accounts for agency business. If you use your personal email account for agency business, that does not mean every email in your entire email account becomes a public record. But if you use your personal email account extensively for agency business, then your agency may want to review all your emails to determine what is related to agency business and therefore qualifies as a public record. To avoid this risk, either use remote access or have a personal email account solely dedicated to agency business.

These responses are not legal advice. Consult with your attorney.

C. Scope of Search

Question 10

 

It is certainly a best practice to require anyone searching for records to keep track of the details of their search, at least if the search is more than just grabbing a couple of specific records. This evidence will be crucial if you are challenged on the scope of the search. Getting people to do this, however, is difficult.

There are at least two things you can do. First, create a form that you distribute when you ask people to search for records. The effect of having an official form will make some people provide information that they might not otherwise. Second, educate those who can enforce this requirement on why it’s a good idea. Start with your agency attorney and have her review the Neighborhood Alliance v. Spokane County, 153 Wn. App. 241 (2009) case where the county was liable in part because it could not document its search. This case is reviewed in a prior column.

One of the things that WAPRO can do as an organization is to develop best practices and forms. This will give you an additional tool to convince decision makers that this is a good idea.

Question 11

If it is clear that other departments will likely have responsive records, then you should notify other departments. For most agencies, this is a legal requirement – the law will treat you as a singular agency. For counties, who have departments headed by separate elected officials, Koenig v. Pierce County, 151 Wn. App. 221 (2009) holds that this is not required, but I still think it is a best practice. The requesting public thinks of counties as a single entity and may think the county is playing games if it silently restricts its search to a single department. At the very least, a county department should make it clear that it is not searching other departments.

There are times, however, when a requester is clearly only looking for records in one department. In those situations, it may not be necessary to provide notice to other departments. If you can encourage the requester to go to other departments, do this in a way where it is documented and you can fairly argue to a court that the burden was on the requester to tell you, “No I want you to give notice to other departments.”

Question 12

This question relates to a gray area of the law that is not addressed by the PRA or any case law: if a record is deleted in violation of the retention requirements when there is no pending public records request, does the agency violate the PRA if someone later requests that record (and it should not have been destroyed)? We know that if the record was properly deleted and then requested, the PRA was not violated. And we know that if the record was deleted after a request was made, whether it could have been deleted pursuant to the retention requirements or not, that is a PRA violation (although if you are able to find another copy, it might not be actionable under RCW 42.56.550).

The strongest legal argument is that if the record is deleted, there is no identifiable public record, period. Any remedy should lay with the remedy provisions in chapter 40.14 RCW and chapter 40.16 RCW. Otherwise, once an agency has improperly deleted, anyone and everyone could then request that record and receive penalties.

As the court of appeals recognized in non-binding dicta in BIAW v. McCarthy, 152 Wn. App. 720 (2009), from a policy standpoint, this is a bad result because it would allow an agency to avoid the PRA by intentionally deleting records illegally. In response, I would argue that if the deletion was intentional, then it is a class C felony under RCW 40.16.010. There is no need – or statutory authority – for an additional remedy under the PRA.

Of course, even if the record is deleted, it may still be somewhere on your server. When a document is deleted, it will remain in the deleted space until it is written over with new information. And this leads to the actual question- do you need to forensically search your server or hard drive for illegally deleted records?

If faced with the claim, I would argue “no.” The PRA only applies to identifiable/reasonably locatable records. In response to a normal request, it is not reasonable or mandated that you conduct a forensic search for records, because any such records are not “reasonably locatable.” See BIAW v. McCarthy. Nothing in the Public Records Act suggests that a record suddenly becomes “reasonably locatable” just because the retention schedule was violated.

That being said, given the policy considerations indentified in BIAW, a court may disagree and hold that the forensic search is mandated. This was the result in an Ohio Supreme Court case dealing with this exact issue. See State ex rel. Toledo Blade Co. v. Seneca County, 899 N.E.2d 961 (Ohio 2008).

So while I would argue “no,” a court may not agree with me. Therefore, you should weigh the costs and burdens of doing the forensic search with the potential costs of being sued, knowing that one possible result may be a court order requiring you to do the forensic search.

 

Question 13

I want to make four points in response to this question.

First, I believe there is a duty to always provide later-discovered records. Technically, if more than a year has passed, then an agency could argue that the statute of limitations has run, so there is no liability for failing to produce the records. But a requester would likely respond that under Rental Housing Authority v. City of Des Moines, 165 Wn.2d 525 (2009), the statute of limitations never ran because the missed record was not on an exemption log. This is the actual holding in a recent unpublished case, Francis v. Dep’t of Corrections (Div. 1, 2010). I think this result completely undermines the statute of limitations and is contrary to the Legislature’s intent when they shortened the statute of limitations from five years to one year, but in PRA cases, courts tend to err in favor of the requester.

Second, if you do produce a later-discovered record, in most cases I believe it makes sense to explain what happened. Otherwise, this may cause the requester to speculate that there are other “missed” records. There may, however, be times when you don’t want to explain, but that would be very fact specific.

Third, if you do turn over a later-discovered record, this will re-start the one year statute of limitations period, because it runs for one year after you produce the last record or assert an exemption.

Fourth, there are some requesters who will file a lawsuit after you produce a later-discovered record and argue that you have to pay daily penalties. Case law suggests that this is incorrect – if a suit is filed after the record is provided, there is no PRA liability. But that hasn’t stopped some requesters.

Question 14

There is no requirement that a public record be in your control before you are required to comply with the PRA – if your agency has “used” the record for agency business, it is your agency’s public record. See Concerned Ratepayers v. PUD of Clark County, 138 Wn.2d 950 (1999). This is one way where the PRA is boarder than litigation discovery; the discovery rules only require you to produce records within your control. 

One key consideration that was not addressed in the Concerned Ratepayers case, however, is whether the retention period for the record has expired. If you no longer have a copy but were not required to have a copy any longer under the retention schedule, then I would argue that you do not have to try to find a copy from some third party. I want to add two caveats, however. First, if you can easily get a copy, the more transparent response is to get a copy and produce it. This will show your agency’s dedication to transparency and avoid a lawsuit, which will be expensive even if you win.

Second, if the record is in the possession of a third party that you have a contract with to provide service (such as Civic Web or other cloud computing), that record might still be your agency’s public record – it will depend on the terms of the contract. Whether the record resides on a server in some other state or in your building is not dispositive in determining whether it’s your agency’s record. Thus, this is an issue best addressed in the contracts with third party service providers – agencies should try to clearly specify in those contracts what records belong to the agency and for those agency records, what steps the service provider must take to adequately back up the records (and purge once retention periods expire), and what happens to those records when the contract expires or is terminated. You probably don’t want to contract with a company that can’t comply with public records laws.

Question 15

You always have to produce all responsive records that you have, even if you could have deleted them. Therefore, you cannot assume a record has been deleted and not search for it – you must conduct the search.

 

Question 16

Yes, even though counties may be treated as separate agencies, if the record is still located on a county server that serves all departments, then a court will still likely consider it your department’s public record. If your agency is not a county, then this is certain. But this assumes it is reasonably locatable on the server. If the only way to find it is to restore a back up tape or conduct a record-by-record review, please see the answer to question 12 above

Question 17

The answer to this question depends on the nature of the request. If the request is for the case file and you have properly deleted the case file, then you can tell the requester that you don’t have the responsive record. But if the request is for all records related to the case, then your database may be responsive because it relates to the case. Also note: the new retention guidelines for police case files likely will require you to keep case files, at least for persons who are convicted, for a really long time.

Question 18

If you still have the scanned record, then you need to produce it. This is one of the risks of scanning records – if you aren’t careful where you put the scanned record, then it is a lot harder to comply with the retention requirements and you may be creating liability traps. Usually when you scan records, you can input descriptive metadata into the PDF, so consider inputting retention information to make it easier to know when the PDF version should be deleted.

Question 19

If it is a public records request, you will need to produce all responsive records unless they are exempt. If they are exempt, then you need to produce an exemption log. If they are non-conviction records, you should note on the exemption log that the requester can come inspect the records but cannot have a copy.

The definition of “non-conviction data” is unclear, so you should have your counsel review the actual records before determining whether they qualify.

Question 20

There is very little intersection between the PRA and litigation discovery. The Courts have clearly stated that you cannot limit a litigant to only using discovery because a person does not lose the right to make PRA requests simply because he is currently suing an agency. While there are some anomalous cases, I would argue that PRA exemptions cannot be asserted in response to discovery requests. There are a few ways they do interact however.

First, if the person has already obtained the record through discovery, then you probably cannot be liable for not producing it in response to a subsequent discovery request. That does not mean you should ignore such requests, but if someone wants the records again, you should charge appropriate copy costs and require payment up front – maybe with a deposit.

Second, someone can make discovery requests for records you have already produced in response to a PRA request, but you can seek a protection order if it is unduly burdensome, and you could also ask a court to shift costs. Moreover, just because you happen to produce additional records in response to discovery, that does not mean you necessarily violated the PRA when you didn’t produce the record earlier. If no pending PRA lawsuit exists, a person should not be able to file one after the record is received. See Question 13 for more information. The PRA only requires you to produce documents that are “reasonably locatable,” while discovery requests require you to produce all responsive records in your custody or control, even if they aren’t reasonably locatable. See Question 12 for more information.

 

These responses are not legal advice. Consult with your attorney.

D. Reasonable Time Request

Question 21

I need to amend my response to what I said at the training. I said for large organizations, a court will assume you have resources for any size request. While this will be the case for a typical large request, I should add a couple of caveats. This is because the PRA allows you to adopt rules “to prevent excessive interference with other essential functions of the agency.” RCW 42.56.100. At some point, you will be interfering with your essential functions if you keep pulling people away to help look for responsive records. In a large organization, you are going to be able to bring in a lot of resources before this occurs. But, for example, when King County receives a request for every email to and from every employee for an entire year, a court should allow the county to give a really long response time and not require every county employee to be working on the request to lessen that response time.

To best defend against a claim that the agency’s time estimate is unreasonable, an agency should spell out in its policy which staff members are primarily assigned to respond to requests and which staff members are available to help out with spikes in requests. This should be based at least in part on historical data. This will give the agency the strongest argument that using even other staff will excessively interfere with its other work.

 

Question 22

The longer the estimate, the more details you should share. For most estimates, when I am estimating four weeks or less, I usually only say we need the four weeks to collect responsive records and review them for exemptions. If I am including 10 days to give third party notice, I explain that as well. If I am giving an estimate over four weeks, I usually include some level of detail. The longer the estimate, the more details I provide.

Question 23

You can terminate a request if the requester does not pick up the request within a “reasonable time.” The AG’s model rules suggest 30 days, but I recommend a shorter time frame such as 15 days. But I don’t rush to put everything away after 15 days. I will contact the requester and give them an opportunity to respond within another 5 days. I go through these steps because the requester can always re-make the request.

If the requester has not paid for an installment, I would not make any more copies for him. But if the requester now just wants to inspect records, it is no use to refuse to allow him to do so based on a non-payment because he could make a new request, and you cannot use the fact that he failed to pay for a prior request to prohibit him from making a new request. I will, however, get payment before I give him any future copies and may also seek a deposit before I start copying.

 

 

Question 24

Sort of. If you fail to provide records by your estimated completion date, a requester could run into court and automatically “win.” If you instead provide a revised estimate, the requester can still run to court but will have to prove your revised estimate is unreasonable. Providing a revised estimate does put your agency in a better legal position, but the requester can always challenge your estimate in court, whether it’s the original estimate or a revised estimate.

Question 25

Most of the time, yes. If you give third party notice, it will delay your production by 10 days (or however long you give the third party). You are more transparent and will build better relations with the requester if you explain this delay. In fact, I will often copy the requester on the third party notice letter.

Sometimes you may not want to let the requester know. For example, if a possible exemption is based on protecting the identity of the third party, if you tell the requester, you are also telling him there is now another document he can try to get to determine the identity – the third-party notice letter.

One big note of caution – Kitsap County recently had a court award fees against it after a third party sued to block disclosure because the county informed the requester what exemption might apply that the third party might assert. The Court treated this as “citing” an exemption, and therefore found that the county wrongfully withheld records – even though the county prevailed in the lawsuit filed by the third party seeking to block disclosure. Therefore, when you are providing third party notice, make sure it’s absolutely clear that your agency intends to release the records absent a court order prohibiting disclosure. This doesn’t mean you have to argue there is no possibility an exemption might apply – often you may think it’s a close call and simply don’t want to risk taxpayer dollars by withholding. But you must be absolutely clear on your intent to disclose or you risk a court holding your agency responsible, even if a third party sues.

(The Kitsap case was argued in the Court of Appeals February 19, 2010.)

Question 26

There are two ways to handle this. First, if there are any exempt documents, always hold off producing the exemption log until the very last production. This way, if you change your mind, you won’t have already asserted an exemption. This practice also ensures you have something to produce with the last installment.

Second, just explain what happened to the requester. There is nothing wrong with saying that you thought there were more responsive records but your search ultimately turned up no additional records.

Question 27

Once you realize you have missed a deadline, immediately produce the responsive records. If you cannot, immediately send an extension letter with a revised estimate. See the answer to Question 25 for more information on revised estimates.

Question 28

If you find responsive records after you had thought you had completed your request, make a supplemental production. See answer to Question 13.

These responses are not legal advice. Consult with your attorney.

E. Costs

Question 29

There is no legally significant difference between the time an agency spends collecting records and inspecting them to see if they are exempt – you cannot charge for either.

Once records have been collected and inspected for possible exemptions, you can charge for copy costs. For electronic records, this copy cost can include the time it takes you to put the already collected and inspected records onto a CD or in an email.

Question 30

No. You only can charge for copy costs, and only if the person wants copies. The requester can always inspect records at no cost, period.

These responses are not legal advice. Consult with your attorney.

F. Production

Question 31A

You always want to get records to the requester as promptly as possible. If you can fulfill a request over the counter, then you should. But most of the time you won’t want to give out originals to inspect because you don’t want to risk harm to the documents. Make sure you are considering whether any exemption could apply because once you disclose, you are likely waiving any exemption.

For items like council agendas and packets or planning reports, which are already public, there is no reason to delay producing copies.

My preference is to document every request. If it’s really that simple, maybe a simple entry on a log is enough, but you want to have some written record so you can track how many requests you are fulfilling and have evidence if a person later files suit.

Forcing all requesters in all cases to wait the full five days may be permissible under the law but it is very un-transparent and is the type of action that builds suspicion and may lead to more problems. Also, make sure you are not treating a requester differently because she has been a problem for you in the past.

Question 31B

First, if someone wants in it paper, you must provide it in paper. Second, any time you are giving out paper copies, you can charge, even if you have extra copies lying around. Remember that the cost to your agency of processing the payment will be around $4, so consider waiving the copy costs for smaller requests.

Question 32

You want to make sure you have a record of what you have provided in the event someone later sues and says some responsive record wasn’t received. This can be in the form of having a duplicate copy of what was provided to the requester or it can be a list of the records you provided.

Question 33

Yes.

Question 34

You must produce the record in whatever format is reasonable and technologically feasible based on your agency resources. If someone wants a Word document in Word format, you should provide it to them in that format. The one exception is if the document needs to be redacted, you may have to convert the document to a different format to make redactions.

Question 35

No. Scanning is no different from copying, assuming you have a scanner. You can, however, charge a per-page cost based on the actual cost to scan the document. Make sure this cost is noted in your policy.