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AGO 1991 No. 6 - February 27, 1991
AGO Opinion Header Image
Ken Eikenberry | 1981-1992 | Attorney General of Washington

PUBLIC RECORDS ‑- INITIATIVE NO. 276

1.  RCW 42.17.270 requires agencies to make identifiable public records promptly available to the public.  To compel with this requirement, agencies should act reasonably expeditiously in light of all the circumstances.

2.  RCW 42.17.300 provides that no fee shall be charged for the inspection of public records.  This statute prohibits any agency from imposing a charge for searching for and retrieving public records.

3.  RCW 42.17.300 permits agencies to impose a reasonable charge for providing copies of public records.  This includes actual costs directly incident to copying.

                                                                  - - - - - - - - - - - - -

                                                                February 27, 1991

Honorable A. L. "Slim" Rasmussen
State Senator, District 29
203 Institutions Building, AS-32
Olympia, Washington 98504

Honorable Neil Amondson
State Senator, District 20
203 Institutions Building, AS-32
Olympia, Washington 98504

                                                                                                                   Cite as:  AGO 1991 No. 6

Dear Senators Rasmussen and Amondson:

            You have requested our opinion regarding the interpretation of the Public Disclosure Act, RCW 42.17.250-[42.17].340.  Because your questions relate to the same law, we have combined your requests into a single opinion.  We paraphrase your questions:

            1. What does "promptly" mean as used in RCW 42.17.270 and [42.17].320?
            2. Under RCW 42.17.300, may an agency impose a charge for searching for and retrieving a public record?
            3. Under what circumstances would copying charges be deemed excessive?

             [[Orig. Op. Page 2]]

                                                                   Brief Answers

1.          RCW 42.17.270 requires agencies to make identifiable public records promptly available to the public.  To comply with this requirement, agencies should act reasonably expeditiously in light of all the circumstances.

2. RCW 42.17.300 provides that no fee shall be charged for the inspection of public records.  This statute prohibits any agency from imposing a charge for searching for and retrieving public records.

3. RCW 42.17.300 permits agencies to impose a reasonable charge for providing copies of public records.  This includes actual costs directly incident to copying.

                                                                BACKGROUND

            Washington's Public Disclosure Act (PDA) was enacted in 1973 as part of Initiative Measure No. 276.  The PDA "is a strongly worded mandate for broad disclosure of public records."  Hearst Corp. v. Hoppe, 90 Wn.2d 123, 127, 580 P.2d 246 (1978).  The Washington Supreme Court has liberally construed its provisions to promote its goal‑-to promote access to public records.

            Achieving an informed citizenry is a goal sometimes counterpoised against other important societal aims. . . .  Though tensions among these competing interests are characteristic of a democratic society, their resolution lies in providing a workable formula which encompasses, balances and appropriately protects all interests, while placing emphasis on responsible disclosure.  It is this task of accommodating opposing concerns, with disclosure as the primary objective, that the state freedom of information act seeks to accomplish.

Police Guild v. Liquor Control Bd., 112 Wn.2d 30, 33, 769 P.2d 283 (1989).

            The court has also recognized that "[t]he state act closely parallels the federal Freedom of Information Act (FOIA), 5 U.S.C. § 552 (1970), as amended, (Supp. V, 1975), and thus judicial interpretations of that act are particularly helpful in construing our own."  Hearst 90 Wn.2d at 128.

             [[Orig. Op. Page 3]]

                                                                     ANALYSIS

            Question 1:

            What does "promptly" mean as used in RCW 42.17.270 and [42.17].320?

            The terms "prompt" or "promptly" are used in two places in the PDA.  RCW 42.17.270 deals with the requirement that public records be made available for inspection.  In pertinent part the statute provides:

            Public records shall be available for inspection and copying, and agencies shall, upon request for identifiable public records, make thempromptly available to any person.

RCW 42.17.270 (emphasis added).

            RCW 42.17.320 deals with responses to requests for public records.  The statute provides in part:

            Responses to requests for public records shall be made promptly by agencies.  Denials of requests must be accompanied by a written statement of the specific reasons therefor.  Agencies shall establish mechanisms for the most prompt possible review of decisions denying inspection . . . .

RCW 42.17.320 (emphasis added).

            Although RCW 42.17.270 deals with inspection of public records and RCW 42.17.320 deals with responses to requests for public records, both require agencies to act promptly.

            Before interpreting the term "prompt" (or "promptly") it is important to understand the steps involved in responding to a public records request.  These steps may include:

            (1) Clarifying exactly which records are being requested, cf.  RCW 42.17.270 ("identifiable" public records to be made available upon request); RCW 42.17.290 (rules shall provide for "the fullest assistance to inquirers");

            (2) Determining where within the agency such records might be located;

            (3) Conducting the actual physical search for the specified records at those locations;

             [[Orig. Op. Page 4]]

            (4) After collecting all records falling within the scope of the request, examining each record to determine whether it contains information that a statute prohibits or exempts from being disclosed, RCW 42.17.310;

            (5) Deleting or redacting the portions of each record that the agency determines should be withheld from disclosure, RCW 42.17.260(1);

            (6) Preparing a written explanation for each portion of each specific record withheld from disclosure, RCW 42.17.260(1); and

            (7) Possibly notifying the subject(s) of records that the agency intends to disclose, to thereby allow the subject(s) a reasonable opportunity to seek court intervention restraining disclosure.

            Depending on the nature of the request, the time required to complete any one of these steps may vary from a few minutes to several weeks or even several months.

            In our judgment the term "promptly" must be defined in terms of a flexible standard instead of a set number of days.  We believe the requirement of a prompt response means that agencies should act reasonably expeditiously in light of all the circumstances.  This flexible standard is consistent with the intent of the Legislature.  The Legislature did not require that a response be made or records be produced in a set number of days.1/

            Instead, RCW 42.17.290 provides:

            Agencies shall adopt and enforce reasonable rules and regulations, consonant with the intent of this chapter to provide full public access to public records, to protect public records from damage or disorganization, and to prevent excessive interference with other essential functions of the agency.  Such rules and  [[Orig. Op. Page 5]] regulations shall provide for the fullest assistance to inquirers and the most timely possible action on requests for information.  Nothing in this section shall relieve agencies from honoring requests received by mail for copies of identifiable public records.

The Legislature clearly recognized the competing considerations involved in responding to a request.  On one hand, the agency is to provide "full public access to public records."  On the other hand, the Legislature recognized the need "to prevent excessive interference with other essential functions of the agency."  It is within this context that the agency is to provide "the most timely possible action on requests for information."

            In judging whether an agency has responded promptly (reasonably expeditiously in light of all the circumstances), we believe the courts will take into account the agency's resources, the nature of the request and the content of the records requested.

            The PDA applies to all agencies, from the smallest special purpose district with a few employees to the largest state agency with offices throughout the state.  Thus, an agency's records may be kept in a single office or dispersed over the state.  In addition, while some agencies have employed staff whose only job is to respond to such requests, the staff of many local agencies must respond while trying to perform their "normal" duties.  The nature of the request may also affect how quickly an agency is able to respond.  If only a single document is requested, "promptly" would have a different meaning than if large volumes are involved.  Thus, the nature of the request, the location of the records, as well as the agency's resources, will bear on whether an agency has acted reasonably expeditiously in light of all the circumstances.

            The basic purpose of the PDA is to allow for unimpeded access by citizens to public records.  Whether an agency has acted promptly depends on the circumstance and must be determined on a case by case basis.  We have discussed some of the circumstances that effect this determination.  Obviously, mere inconvenience to the agency in providing the records promptly does not warrant delay.  RCW 42.17.340(2).  Agencies must act reasonably expeditiously in light of all the circumstances.

            Question 2:

            Under RCW 42.17.300, may an agency impose a charge for searching for and retrieving a public record?

            Inspection and copying fees under the PDA are addressed in RCW 42.17.300:

             [[Orig. Op. Page 6]]

            No fee shall be charged for the inspection of public records.  Agencies may impose a reasonable charge for providing copies of public records and for the use by any person of agency equipment to copy public records, which charges shall not exceed the amount necessary to reimburse the agency for its actual cost incident to such copying.

Fee provisions under the federal FOIA are enumerated in 5 U.S.C. § 552(a)(4)(A)(ii):

            Such agency regulations shall provide that‑-

            (I) fees shall be limited to reasonable standard charges for documentsearch,duplication, and review, when records are requested for commercial use;
            (II) fees shall be limited to reasonable standard charges for documentduplication when records are sought for commercial use and the request is made by an educational or noncommercial scientific institution, whose purpose is scholarly or scientific research; or a representative of the news media; and
            (III) for any request not described in (I) or (II), fees shall be limited to reasonable standard charges for document search and duplication.

5 U.S.C. § 552 (a)(4)(A)(ii) (emphasis added).

            A comparison of these statutes reveals that, just as clearly as the federal statute allows for search and review fees, the state statute does not.  It is noteworthy that the Legislature has specifically allowed search fees to be charged by some agencies.  RCW 36.18.010 (county auditors) and RCW 36.18.020(16) (superior court clerks).

            RCW 42.17.300 does permit agencies to charge the "actual costs incident to copying."  Interpretation of this provision turns on what costs are incident to copying.  We believe that search fees are not costs incidental to copying.  Because search fees are not allowable for record inspections, it would be incongruous to impose search fees as "incidental" to copying, when inspection of those same records must be free.

            Agencies undoubtedly incur substantial costs when disclosing public records.  However, the Legislature has not authorized agencies to recover the costs associated with the PDA, except for a reasonable charge for providing copies of public records.

             [[Orig. Op. Page 7]]

            Question 3:

            Under what circumstances would copying charges be deemed excessive?

            As we pointed out in our answer to Question 2, RCW 42.17.300 allows agencies to "impose a reasonable charge for providing copies of public records."  The charge shall not "exceed the amount necessary to reimburse the agency for its actual costs incident to such copying."  Whether costs of copying are excessive is a factual question, and those facts could vary from agency to agency.  However, an agency may charge only its actual costs directly incident to copying.  These costs could include such items as the costs of the copying machine (including maintenance); paper and other supplies; and staff time devoted to the copying process.  The agency must be able to justify its charges based on these and other direct costs.

            Alternately, it may be acceptable to price copies at the same price charged by outside copying businesses on the assumption that the costs incurred by such businesses would be similar to those incurred by the agency.  This is not to say that an agency may charge no more than the least expensive outside copying service.  Such services may have low costs because of economies of scale not experienced by the agency.

            We trust the foregoing will be of assistance to you.

Very truly yours,

KENNETH O. EIKENBERRY
Attorney General

CHIP HOLCOMB
Senior Counsel
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/We note that the FOIA has taken a somewhat different approach.  In 1974 the FOIA was amended to provide that an agency shall respond to a request within 10 working days.  5 U.S.C. § 552(a)(6)(A)(i).  This time limit could be extended for up to 10 days in "unusual circumstances."  Unusual circumstances are defined to include the need to search for records in field offices; the need to search and collect a voluminous amount of separate and distinct records; and the need to consult with another agency.  5 U.S.C. § 552(a)(6)(B).  Congress also provided a "safety valve."  The agency may obtain additional time if it can show "exceptional circumstances exist."  5 U.S.C. § 552(a)(6)(C).

 

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