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Chapter 1
PUBLIC RECORDS ACT – GENERAL AND PROCEDURAL PROVISIONS

Last revised: January 2007 - Currently under review; updates forthcoming

(Note: On July 1, 2006, the citations to the Public Records Act changed from chapter 42.17 RCW to chapter 42.56.  Therefore, this Internet Manual uses the new chapter 42.56 RCW citations.  A conversion table showing the old chapter 42.17 RCW and new chapter 42.56 RCW citations is available on the Attorney General’s web site.)

1.1     The Public Records Act Is Interpreted in Favor of Disclosure  

The Public Records Act (“PRA” or “Act”) was enacted by initiative to provide the people with broad rights of access to public records. The Act declares that it must be "liberally construed" to promote the public policy of open government:

Statutory Provisions: 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. This chapter shall be liberally construed and its exemptions narrowly construed to promote this public policy. RCW 42.56.030.

Courts shall take into account the policy of this chapter that free and open examination of public records is in the public interest, even though such examination may cause inconvenience or embarrassment to public officials or others.  
RCW 42.56.550(3).

See generallyChapters 2 and 6, Public Records Act Deskbook: Washington’s Public Disclosure and Open Public Meetings Laws (Greg Overstreet, ed.) (Wash. State Bar Assoc. 2006) (available for purchase).  See also WAC 44-14-01003 (Attorney General’s non-binding model rules on public records summarizing how Act is interpreted by courts).  In any “gray areas,” a court will look to the requirement to interpret the Act in favor of disclosure and will decide a dispute in favor of open government.

 

1.2     What Is A “Public Record”

The PRA adopts the definitions in chapter 42.17 RCW, the older version of the PRA.  RCW 42.56.010.

Statutory Provisions: "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. For the office of the secretary of the senate and the office of the chief clerk of the house of representatives, public records means legislative records as defined in RCW 40.14.100 and also means the following: All budget and financial records; personnel leave, travel, and payroll records; records of legislative sessions; reports submitted to the legislature; and any other record designated a public record by any official action of the senate or the house of representatives. RCW 42.17.020(41).

"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. RCW 42.17.020(48).

The definition of a public record (other than a record of the Legislature) contains three elements. See generally WAC 44-14-03001.  First, the record must be a "writing," which is broadly defined in RCW 42.17.020(48) to include any recording of any communication, image or sound. A writing includes not only conventional letters and memoranda, but also emails, videos, photos and computer data.

Second, the writing must relate to the conduct of government or the performance of any governmental or proprietary function.  Virtually every document a government agency has relates in some way to the conduct of government business or functions.

Third, the writing must be either prepared, owned, used or retained by the agency. A writing may include data compiled for the issuance of a report (as well as the report itself), even though the agency had not intended to make the underlying data public. See Yacobellis v. City of Bellingham, 55 Wn. App. 706, 780 P.2d 272 (1989), rev. denied, 114 Wn.2d 1002, 788 P.2d 1077 (1990), on remand, 64 Wn. App. 295, 825 P.2d 324 (1992). An agency need not possess a record for it to be a “public record.”  See Concerned Ratepayers v. Pub. Util. Dist. No. 1, 138 Wn.2d 950, 959-60, 983 P.2d 635 (1999) (records held by out-of-state private vendor nonetheless “public records” because they were “used” by agency). Although this element is broad, it is not limitless. Compare1983 Att’y Gen. Op. No. 9 (list of customers of public utility district is public record) with1989 Att’y Gen. Op. No. 11 (registry of municipal bondholders is not public record because list was compiled by trust company and never prepared, possessed or used by county). 

The determination of whether or not a document is a "public record" is a critical first step to decide whether the PRA applies. Oliver v. Harborview Med. Ctr., 94 Wn.2d 559, 565 n. 1, 618 P.2d 76 (1980). The definition of "public record" is to be liberally construed to promote full access to public records. Id. at  566. If documents are sent to an agency by mistake, and later returned, they are probably not public records because they probably were not “used” by the agency.

Case Example: A public agency hires a consultant to help resolve a specific problem. The consultant prepares a report and transmits the report to the agency. After reviewing the report and before receiving a public records request for the report, the agency returns all copies to the consultant. Is the report a public record?

Resolution: Yes, because the agency “used” the report.  A record outside the possession of the agency can be a “public record.”  The agency should require the consultant to return the report to the agency for public records processing (reviewing for exempt information, redacting, copying, etc.).

 

1.3     What Is An "Agency" Subject to the Act

Statutory Provision: "Agency" includes all state agencies and all local agencies. "State agency" includes every state office, department, division, bureau, board, commission, or other state agency. "Local agency" includes every county, city, town, municipal corporation, quasi-municipal corporation, or special purpose district, or any office, department, division, bureau, board, commission, or agency thereof, or other local public agency. RCW 42.17.020(1).

As noted above, only the records of an "agency" are covered by the Act. The Act's definition of "agency" in RCW 42.17.020(1) is broad. See generally WAC 44-14-01001.  Courts have interpreted that definition to include a city's design and development department, Overlake Fund v. City of Bellevue, 60 Wn. App. 787, 810 P.2d 507 (1991), appeal after remand, 70 Wn. App. 789, 855 P.2d 706, review denied, 123 Wn.2d 1009, 869 P.2d 1084 (1994); a county prosecutor's office, Dawson v. Daly, 120 Wn.2d 782, 845 P.2d 995 (1993), and a city's parks department, Yacobellis v. City of Bellingham, 55 Wn. App. 706, 780 P.2d 272 (1989), appeal after remand, 64 Wn. App. 295, 825 P.2d 324 (1992). Some non-government agencies (such as an association of counties) which nonetheless performs governmental or quasi-governmental functions can be considered an “agency” if they meet a four-part test.  See2002 Att’y Gen. Op. No. 2.

The PRA does not apply to court case files; but those files are available through common law rights of access. Nast v. Michels, 107 Wn.2d 300, 307, 730 P.2d 54 (1986); see also Cowles Publishing Co. v. Murphy, 96 Wn.2d 584, 637 P.2d 966 (1981). However, one court of appeals held that a request for judge’s oaths to the superior court administrator was a disclosure request to be answered under the PRA.  Smith v. Okanogan County, 100 Wn. App. 7, 13, 994 P.2d 857 (2000)Accordingly, there is authority for the proposition that the Act does not apply to the judicial functions of the courts  and only to its administrative functions, but there is no clear decision on that point.

(Note: The Act applies to an “agency,” which can be a state agency or a local government.  Accordingly, this Internet Manual will use the term “agency” to apply to both state and local government entities.)

 

1.4 Record Retention Duties Of Agencies

State laws require state and local agencies to retain certain records for varying lengths of time depending on the content of the record.  See generally Ch. 40.14 RCW, the local and state retention schedules, and WAC 44-14-03005.  However, if an agency keeps a record longer than required—that is, if the agency still possesses a record that it could have lawfully destroyed under a retention schedule—the record is still a “public record” subject to disclosure.  See RCW 42.17.020(41) (“public record” includes writing “retained” by agency).

Statutory Provision: Agencies shall adopt and enforce reasonable rules and regulations, and the office of the secretary of the senate and the office of the chief clerk of the house of representatives shall adopt reasonable procedures allowing for the time, resource, and personnel constraints associated with legislative sessions, 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, the office of the secretary of the senate, or the office of the chief clerk of the house of representatives. Such rules and 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, the office of the secretary of the senate, and the office of the chief clerk of the house of representatives from honoring requests received by mail for copies of identifiable public records.  If a public record request is made at a time when such record exists but is scheduled for destruction in the near future, the agency, the office of the secretary of the senate, or the office of the chief clerk of the house of representatives shall retain possession of the record, and may not destroy or erase the record until the request is resolved. RCW 42.56.100.

The first paragraph of RCW 42.56.100 requires agencies to adopt and enforce reasonable rules to protect public records from damage or disorganization. These rules must provide for the "fullest assistance to” requesters and the "most timely possible action" on requests. An agency may not use its rules to create either an exemption or other basis to withhold a record. Hearst Corp. v. Hoppe, 90 Wn.2d 123, 129-30, 580 P.2d 246 (1978). Agencies should have in place reasonable practices to allow them to promptly locate and produce requested documents if they are reasonably identifiable. The Attorney General’s Office adopted model rules for compliance with the PRA.  See chapter 44-14 WAC.  Agencies are encouraged to adopt the Attorney General’s model rules.

The second paragraph addresses the situation when a record scheduled for destruction is the subject of a pending request. The agency must suspend its retention schedule for affected records until the public records request is resolved.  Presumably, the reasonable rules required in the first paragraph for the "protection of public records from damage" include rules relating to the agency's application of its record destruction policy.

 

1.5     Procedures To Make A Request

The Attorney General’s model rules for public records provide detailed information on the public records request process.  See ch. 44-14 WAC.

A.  No Statement Of Reason Is Necessary

Statutory Provision: Agencies shall not distinguish among persons requesting records, and such persons shall not be required to provide information as to the purpose for the request except to establish whether inspection and copying would violate RCW 42.56.070(9) or other statute which exempts or prohibits disclosure of specific information or records to certain persons. RCW 42.56.080.

A person making a public records request is not required by the Act to give a reason for the request, except in the rare instances where the agency needs to know the purpose to determine if the request would violate a statute (such as the ban on requests of lists of individuals for commercial purposes, discussed below) .  See WAC 44-14-04003(1).  Except for commercial uses, release of information may not be limited by the purpose of the request. Dawson v. Daly, 120 Wn.2d 782, 845 P.2d 995 (1993); Yacobellis v. City of Bellingham, 55 Wn. App. 706, 710, 780 P.2d 272 (1989), review denied, 114 Wn.2d 1002 (1990).  In some cases, agencies may require additional information, such as an authorization for health care records, to show why the requester is entitled to the record if the record is normally exempt and can only be disclosed to certain persons. 

B.  Requests for Lists of Individuals for Commercial Purposes

Statutory Provisions: This chapter shall not be construed as giving authority to any agency, the office of the secretary of the senate, or the office of the chief clerk of the house of representatives to give, sell or provide access to lists of individuals requested for commercial purposes, and agencies, the office of the secretary of the senate, and the office of the chief clerk of the house of representatives shall not do so unless specifically authorized or directed by law: PROVIDED, HOWEVER, That lists of applicants for professional licenses and of professional licensees shall be made available to those professional associations or educational organizations recognized by their professional licensing or examination board, upon payment of a reasonable charge therefor: PROVIDED FURTHER, That such recognition may be refused only for a good cause pursuant to a hearing under the provisions of chapter 34.05 RCW, the Administrative Procedure Act. RCW 42.56.070(9).

The only time when the purpose of a request can be considered is the limit from using the Act to obtain "lists of individuals requested for commercial purposes." RCW 42.17.260 (9).  See also 1988 Att’y Gen. Op. No. 12 (access to list of individuals may be conditioned upon non-commercial use). The limitation on commercial-use requests has three elements: (1) “list of individuals,” (2) for a “commercial purpose,” (3) where the disclosure of the information is not “specifically authorized or directed by law.”  See WAC 44-14-06002(6).  A “list of individuals” can have other fields in it (such as addresses) and still be a “list of individuals.”  1980 Att’y Gen. Op. No. 1.  “Commercial purpose” has its ordinary meaning.  See1998 Att’y Gen. Op. No.2; 1975 Att’y Gen. Op. No. 15.  An agency may require a requestor to sign a declaration that he or she will not use the requested records for a commercial purpose.  1988 Att’y Gen. Op. No. 12.  An example of a disclosure “specifically authorized or directed by law” is RCW 82.40.020, which requires a count assessor’s real property tax rolls to be available for public inspection.  See 1980 Att’y Gen. Op. No. 1.

C.  No Particular Form Of Request Is Required

Statutory Provisions: Agencies shall honor requests received by mail for identifiable public records unless exempted by provisions of this chapter. RCW 42.56.080

Nothing in [the PRA] shall relieve agencies. . .from honoring requests received by mail for copies of identifiable public records." RCW 42.56.100.

No particular form of request is required by the Act. Hangartner v. City of Seattle, 151 Wn.2d 439, 447, 90 P.3d 26 (2004).  See also WAC 44-14-03006.  Although an agency may make its own reasonable rules for providing records, its rules must give the "fullest assistance to" requesters and require the "most timely action" in response to requests for records. RCW 42.17.290. The PRA specifically allows persons to make requests by mail, which includes email under current technology.

Oral requests are permitted, but a written request is advisable for several reasons. It confirms the date on which the record is requested, and it also clarifies what is being requested. Identification of the requesting party, with address and telephone number, will also facilitate a request for clarification by the agency of any ambiguous request or allow the agency to determine if a person has the right to a record that would normally be exempt.  SeeWAC 44-14-03006.  Some laws outside the PRA require written requests.

D.  Agencies Must Establish Procedures For Assistance

Statutory Provisions: (1) Each state agency shall separately state and currently publish in the Washington Administrative Code and each local agency shall prominently display and make available for inspection and copying at the central office of such local agency, for guidance of the public:

(a) Descriptions of its central and field organization and the established places at which, the employees from whom, and the methods whereby, the public may obtain information, make submittals or requests, or obtain copies of agency decisions;
(b) Statements of the general course and method by which its operations are channeled and determined, including the nature and requirements of all formal and informal procedures available;
(c) Rules of procedure;
(d) Substantive rules of general applicability adopted as authorized by law, and statements of general policy or interpretations of general applicability formulated and adopted by the agency; and
(e) Each amendment or revision to, or repeal of any of the foregoing. 
RCW 42.56.040.

An agency is required to adopt its own rules and regulations to assist the public in obtaining information from that agency. See WAC 44-14-01002.    The Attorney General’s Office provides a model rule for agencies to adopt for their procedures.  See ch. 44-14 WAC.

E.  Indexes Available to the Public

Statutory Provision: (3) Each local agency shall maintain and make available for public inspection and copying a current index providing identifying information as to the following records issued, adopted, or promulgated after January 1, 1973:

(a) Final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases;
(b) Those statements of policy and interpretations of policy, statute, and the Constitution which have been adopted by the agency;
(c) Administrative staff manuals and instructions to staff that affect a member of the public;
(d) Planning policies and goals, and interim and final planning decisions;
(e) Factual staff reports and studies, factual consultant's reports and studies, scientific reports and studies, and any other factual information derived from tests, studies, reports, or surveys, whether conducted by public employees or others; and
(f) Correspondence, and materials referred to therein, by and with the agency relating to any regulatory, supervisory, or enforcement responsibilities of the agency, whereby the agency determines, or opines upon, or is asked to determine or opine upon, the rights of the state, the public, a subdivision of state government, or of any private party.

(4) A local agency need not maintain such an index, if to do so would be unduly burdensome, but it shall in that event:

(a) Issue and publish a formal order specifying the reasons why and the extent to which compliance would unduly burden or interfere with agency operations; and
(b) Make available for public inspection and copying all indexes maintained for agency use.

(5) Each state agency shall, by rule, establish and implement a system of indexing for the identification and location of the following records:

(a) All records issued before July 1, 1990, for which the agency has maintained an index;
(b) Final orders entered after June 30, 1990, that are issued in adjudicative proceedings as defined in RCW 34.05.010 and that contain an analysis or decision of substantial importance to the agency in carrying out its duties;
(c) Declaratory orders entered after June 30, 1990, that are issued pursuant to RCW 34.05.240 and that contain an analysis or decision of substantial importance to the agency in carrying out its duties;
(d) Interpretive statements as defined in RCW 34.05.010 that were entered after June 30, 1990; and
(e) Policy statements as defined in RCW 34.05.010 that were entered after June 30, 1990.

Rules establishing systems of indexing shall include, but not be limited to, requirements for the form and content of the index, its location and availability to the public, and the schedule for revising or updating the index. State agencies that have maintained indexes for records issued before July 1, 1990, shall continue to make such indexes available for public inspection and copying. Information in such indexes may be incorporated into indexes prepared pursuant to this subsection. State agencies may satisfy the requirements of this subsection by making available to the public indexes prepared by other parties but actually used by the agency in its operations. State agencies shall make indexes available for public inspection and copying. State agencies may charge a fee to cover the actual costs of providing individual mailed copies of indexes. RCW 42.56.070(3) - (5).

The requirement to keep indices of public records set forth in RCW 42.56.070(3) is excused if a local agency makes an affirmative finding that maintaining such an index would be "unduly burdensome." RCW 42.56.070(4).  A state agency must have a rule on its system for indexing certain types of records as listed in RCW 42.56.070(5), including records it indexed before 1990.  However, a public record may be "relied on, used, or cited as precedent by an agency against a party" only if that record has been included in an index available to the public or if the affected party has timely actual or constructive notice of that record. RCW 42.56.070(6)See also WAC 44-14-03003.

F.  Only “Identifiable Records” Must Be Provided

Statutory Provision: Public records shall be available for inspection and copying, and agencies shall, upon request for identifiable public records, make them promptly available to any person. RCW 42.56.080.

The PRA requires a request for "identifiable public records." See WAC 44-14-04002(2).  A requestor satisfies the "identifiable record" requirement when he or she provides a "reasonable description" of the record "enabling the government employee to locate the requested records." Bonamy v. City of Seattle, 92 Wn. App. 403, 410, 960 P.2d 447 (1998), review denied, 137 Wn.2d 1012, 978 P.2d 1099 (1999). Accordingly, an agency does not have broad duties under the PRA to respond to questions, do research, or to give information that is not the subject of an identifiable public record. However, the requirement that a record be "identifiable" indicates that the requestor need not identify the record  with precision. A member of the public may not know the name of a specific record, but may be able to  ask to inspect documents on a specific topic. An agency has a duty to "provide for the fullest assistance to inquirers," RCW 42.17.290, which may include assisting persons to clarify requests to fairly identify the documents requested.

Case Example: A person sends an email to an agency asking how it handles employment discrimination claims.  A second person requests a copy of the agency’s policy for handling employment discrimination claims.  Which of these requests are for "identifiable public records"?

Resolution: The second request is a request of “identifiable records” (the written policy).  The first request is not for “identifiable records” but rather for information. 

 

1.6     Agency Duties In Responding To Requests

An overview of an agency’s duties to process and respond to requests is available in WAC 44-14-04003 and WAC 44-14-04004, respectively.

A.  Agencies Must Make Documents Available

Statutory Provision: Each agency, in accordance with published rules, shall make available for public inspection and copying all public records, unless the record falls within the specific exemptions of [RCW 42.56.070(6), the PRA], or other statute which exempts or prohibits disclosure of specific information or records. RCW 42.56.070(1).

The PRA states broadly that an agency shall make available for inspection and copying all public records, unless a specific exemption applies.  A requester has a right to inspect and copy, but is not required to do both. See WAC 44-14-07001(4).  For example, a person may choose to inspect all public records on a certain subject but copy only a portion of those records. (The exemptions from disclosure mentioned in RCW 42.56.070(6) are discussed below in Chapter 2.)

B.  Facilities Shall Be Made Available for Copying

Statutory Provision: Agency facilities shall be made available to any person for the copying of public records except when and to the extent that this would unreasonably disrupt the operations of the agency. RCW 42.56.080.

An agency must make public records available for copying. Limits on the time and extent of copying are allowed when the request would "unreasonably disrupt the operations of the agency."  Requestors may ask to bring in their own copying equipment which an agency may allow if its business is not disrupted and if redaction of records is not needed.  Typically, an agency promptly processes the request for copies and notifies the requestor when the documents are ready. If the amount of requested documents is not voluminous, the agency often may copy the documents while the requester waits.

C.  Times For Inspection And Copying

Statutory Provision: Public records shall be available for inspection and copying during the customary office hours of the agency …: PROVIDED, That if the entity does not have customary office hours of at least thirty hours per week, the public records shall be available from nine o'clock a.m. to noon and from one o'clock p.m. to four o'clock p.m. Monday through Friday, excluding legal holidays, unless the person making the request and the agency … agree on a different time. RCW 42.56.090.

Public records must be made available for inspection and copying during the normal business hours of the agency. An agency which does not maintain regular business hours of at least 30 hours per week must make its records available from 9 a.m. to noon and from 1 p.m. to 4 p.m., unless the requester and the agency agree on a different time. The time available for copying documents is also affected by RCW 42.56.080, which states that copying should not "unreasonably disrupt the operations of the agency."

D.  Charges For Copying Records

Statutory Provisions: No fee shall be charged for the inspection of public records. No fee shall be charged for locating public documents and making them available for copying. A reasonable charge may be imposed 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 costs directly incident to such copying. Agency charges for photocopies shall be imposed in accordance with the actual per page cost or other costs established and published by the agency. In no event may an agency charge a per page cost greater than the actual per page cost as established and published by the agency. To the extent the agency has not determined the actual per page cost for photocopies of public records, the agency may not charge in excess of fifteen cents per page. An agency may require a deposit in an amount not to exceed ten percent of the estimated cost of providing copies for a request. If an agency makes a request available on a partial or installment basis, the agency may charge for each part of the request as it is provided. RCW 42.56.120.

 * * *

(7) Each agency shall establish, maintain, and make available for public inspection and copying a statement of the actual per page cost or other costs, if any, that it charges for providing photocopies of public records and a statement of the factors and manner used to determine the actual per page cost or other costs, if any.

(a) In determining the actual per page cost for providing photocopies of public records, an agency may include all costs directly incident to copying such public records including the actual cost of the paper and the per page cost for use of agency copying equipment. In determining other actual costs for providing photocopies of public records, an agency may include all costs directly incident to shipping such public records, including the cost of postage or delivery charges and the cost of any container or envelope used.
(b) In determining the actual per page cost or other costs for providing copies of public records, an agency may not include staff salaries, benefits, or other general administrative or overhead charges, unless those costs are directly related to the actual cost of copying the public records. Staff time to copy and mail the requested public records may be included in an agency's costs.

(8) An agency need not calculate the actual per page cost or other costs it charges for providing photocopies of public records if to do so would be unduly burdensome, but in that event: The agency may not charge in excess of fifteen cents per page for photocopies of public records or for the use of agency equipment to photocopy public records and the actual postage or delivery charge and the cost of any container or envelope used to mail the public records to the requestor. RCW 42.56.070(7) and (8).

No one may be charged a fee for the mere inspection of public records. See WAC 44-14-07001(1).  Consequently, no agency may charge a person for the time to search for records for inspection. Expenses for copying records must be limited to "actual" costs as set by the agency. Id.  These costs may include the paper, ink and cost per page for the use of copying equipment, together with staff salary expense incurred in copying. The agency may also charge the actual cost of postage and any shipping or mailing container. General administrative or overhead charges may not be included in copying costs. If an agency has not calculated its actual copying cost per page, it is limited to a charge of 15 cents per page. See WAC 44-14-07001(2).  An agency is not required to charge a fee for copying records but may waive its fees either on its own initiative or at the invitation of the requester.  WAC 44-14-07005.

Case Example: A person requests the opportunity to inspect and copy certain documents from an agency. The agency responds that some of the information in the records is exempt. The agency offers to allow inspection of redacted documents (with the exempt information deleted) if the requester will pay the costs of copying the redacted documents and the cost of the employee who must locate, redact and copy the documents. Is the agency's offer consistent with RCW 42.56.120 and .070(7) and (8)?

Resolution: No agency may charge for the right to inspect a document. Accordingly, it cannot ask the requester to pay the costs of locating, redacting and copying records for inspection.

E.  Prompt And Specific Written Responses Are Required

Statutory Provisions: Responses to requests for public records shall be made promptly by agencies … .  Within five business days of receiving a public record request, an agency … must respond by either (1) providing the record; (2) acknowledging that the agency … has received the request and providing a reasonable estimate of the time the agency … will require to respond to the request; or (3) denying the public record request. Additional time required to respond to a request may be based upon the need to clarify the intent of the request, to locate and assemble the information requested, to notify third persons or agencies affected by the request, or to determine whether any of the information requested is exempt and that a denial should be made as to all or part of the request. In acknowledging receipt of a public record request that is unclear, an agency … may ask the requestor to clarify what information the requestor is seeking. If the requestor fails to clarify the request, the agency … need not respond to it. 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, and such review shall be deemed completed at the end of the second business day following the denial of inspection and shall constitute final agency action … for the purposes of judicial review. RCW 42.56.520

Agency responses refusing, in whole or in part, inspection of any public record shall include a statement of the specific exemption authorizing the withholding of the record (or part) and a brief explanation of how the exemption applies to the record withheld. RCW 42.56.210(3)

An agency must respond to a request for public records within five business days of receipt of the request. Under RCW 1.12.040, the time allowed excludes the day of receipt from the computation.  The agency must produce the record, acknowledge receipt of the request and give a reasonable estimate of the time needed for response, or deny the request. The agency must estimate the additional time needed to respond based upon time needed to: (1) clarify a request; (2)  locate records to respond to the request; (3) contact a third party affected by the request (see RCW 42.56.540, rights of third parties to ask court to prevent disclosure); or (4) determine whether any records are covered by an exemption and should not be disclosed in whole or in part. RCW 42.56.520. See also WAC 44-14-04002 and WAC 44-14-04003.  A request for voluminous records does not excuse an agency response within five days, even if it may take longer to produce the records.

The failure to respond within the five days is an automatic violation of the Act and entitles the requestor to an award of attorneys' fees and statutory penalties.  See Smith v. Okanogan County, 100 Wn. App. 7, 13, 994 P.2d 857 (2000).

If an agency response seeks clarification of a request, the requestor must clarify the intent or scope of the request. A requestor’s failure to respond to a request for clarification excuses the agency from responding to the unclarified request. RCW 42.56.520.

Agencies must deny requests in writing and specify the reasons for the denial. RCW 42.56.520. The written response must identify the specific statutes relied upon by the agency to exempt the record or part of a record from disclosure and must briefly explain how the exemptions apply to the records requested. RCW 42.56.210(3). In order to comply with the Act and to create an adequate record for a reviewing court, the agency's response to a request for documents must include a way to identify any individual records withheld in their entirety. Progressive Animal Welfare Soc'y v. University of Wash., 125 Wn.2d 243, 251, 884 P.2d 592 (1994) (“PAWS II”). See also WAC 44-14-04004(4)(b)(ii).  If challenged, an agency is not limited by the grounds in its initial written denial but it may argue additional reasons for nondisclosure on judicial review. PAWS II, 125 Wn.2d at 253.

F.  Duty To Redact Exempt Portions of Records

Statutory Provision: Except for information described in RCW 42.56.230(3)(a)  and confidential income data exempted from public inspection pursuant to RCW 84.40.020, the exemptions of this chapter are inapplicable to the extent that information, the disclosure of which would violate personal privacy or vital governmental interests, can be deleted from the specific records sought. No exemption may be construed to permit the nondisclosure of statistical information not descriptive of any readily identifiable person or persons. RCW 42.56.210(1).

Agencies are not relieved of their duties to respond to requests for public records because a part of the document  is covered by an exemption. An agency must delete or redact only the exempt information and disclose the rest of the document. See Hearst Corp. v. Hoppe, 90 Wn.2d 123, 133, 580 P.2d 246 (1978).  See also WAC 44-14-04004(4)(b)(i).

G.  No Liability to Third Parties for Good Faith Response

Statutory Provision: No public agency, public official, public employee, or custodian shall be liable, nor shall a cause of action exist, for any loss or damage based upon the release of a public record if the public agency, public official, public employee, or custodian acted in good faith in attempting to comply with the provisions of this chapter. RCW 42.56.060

A good faith decision by a public agency to release a public record relieves the agency or any public official or employee from liability arising from the disclosure. This immunity applies to claims by third parties for damages arising from the release of the records. For example, a third party named in a public record cannot sue a public agency for a good faith release of that record on the basis that the disclosure violated the subject's privacy. Whether an agency acts in "good faith" may be at issue, however, if an agency releases an arguably exempt record with clear privacy implications but fails to attempt to contact the person implicated by the record.

The protection from liability by RCW 42.56.060 does not apply to the failure to disclose information.   A court may award penalties and attorneys' fees under RCW 42.56.550(4) to a prevailing party even if the agency acts in good faith. See Amren v. City of Kalama, 131 Wn.2d 25, 36, 929 P.2d 389 (1997).

 

1.7     Review Of Agency Decision

A.  Review By Agency Of Its Own Denial

Statutory Provision:  Agencies … shall establish mechanisms for the most prompt possible review of decisions denying inspection, and such review shall be deemed completed at the end of the second business day following the denial of inspection and shall constitute final agency action … for the purposes of judicial review. RCW 42.56.520

Final agency action that grants a requestor the right to seek judicial review is determined to be completed at the end of the second business day after an agency’s denial of the right to inspect any portion of a record.  This statute means that a requestor may file a court case two business days after the initial denial regardless of whether the agency has completed its internal review.  See WAC 44-14-08001.

B.  Attorney General Review Of Denial By State Agency

Statutory Provision: Whenever a state agency concludes that a public record is exempt from disclosure and denies a person opportunity to inspect or copy a public record for that reason, the person may request the attorney general to review the matter. The attorney general shall provide the person with his or her written opinion on whether the record is exempt. RCW 42.56.530.

When a state agency denies a requesting party the opportunity to inspect or copy a record by claiming an exemption from disclosure, the party may request a review by the state attorney general. The Office of the Attorney General will respond in writing whether the record is exempt. The right of review by the Attorney General does not extend to a delay in producing records or failure to provide a response to the request but only when a state agency denies records based on an exemption.  RCW 42.56.530 does not allow the Attorney General to review denials of requests by local agencies.

C.  Third-Party Action To Prevent Disclosure

Statutory Provision: The examination of any specific public record may be enjoined if, upon motion and affidavit by an agency or its representative or a person who is named in the record or to whom the record specifically pertains, the superior court for the county in which the movant resides or in which the record is maintained, finds that such examination would clearly not be in the public interest and would substantially and irreparably damage any person, or would substantially and irreparably damage vital governmental functions. An agency has the option of notifying persons named in the record or to whom a record specifically pertains, that release of a record has been requested. However, this option does not exist where the agency is required by law to provide such notice.  RCW 42.56.540.

A third party who is named in a record, or who is the subject of a record, may seek an injunction to prevent the disclosure of a record.  The court action to prevent disclosure may be filed in the superior court where that party resides or where the record is kept. Id. The burden of proof is on the party seeking to block disclosure.  Confederated Tribes of the Chehalis Reservation v. Johnson, 135 Wn.2d 735, 744, 958 P.2d 260 (1998).

The agency may choose to notify the affected persons that the record has been requested under the Act. RCW 42.56.540 and give the person the option to seek court relief.  See also WAC 44-14-04003(11).  However if an agency is required by law or contract to give such notice, then notice is mandatory. Despite its general language that disclosure of a record can be prevented if a court finds that disclosure is “not in the public interest,” RCW 42.56.540 is not a substitute for a statutory exemption. Instead, the party seeking to prevent disclosure under RCW 42.56.540 still must prove that a specific exemption from disclosure applies to the record or portion of a record. Progressive Animal Welfare Soc'y v. University of Wash., 125 Wn.2d 243, 257-8, 884 P.2d 592 (1994).

D.  Filing Suit to Enforce the Act

A records requestor may go to court to obtain the requested records, or to challenge a response to a request or the reasonableness of an agency’s estimate of the time to provide the records.  See generally WAC 44-14-04004(4) and -08004(5).

Statutory Provisions:

(1) Upon the motion of any person having been denied an opportunity to inspect or copy a public record by an agency, the superior court in the county in which a record is maintained may require the responsible agency to show cause why it has refused to allow inspection or copying of a specific public record or class of records. The burden of proof shall be on the agency to establish that refusal to permit public inspection and copying is in accordance with a statute that exempts or prohibits disclosure in whole or in part of specific information or records.

(2) Upon the motion of any person who believes that an agency has not made a reasonable estimate of the time that the agency requires to respond to a public record request, the superior court in the county in which a record is maintained may require the responsible agency to show that the estimate it provided is reasonable. The burden of proof shall be on the agency to show that the estimate it provided is reasonable.

(3) Judicial review of all agency actions taken or challenged under RCW 42.56.030 through 42.56.520 shall be de novo. Courts shall take into account the policy of this chapter that free and open examination of public records is in the public interest, even though such examination may cause inconvenience or embarrassment to public officials or others. Courts may examine any record in camera in any proceeding brought under this section. The court may conduct a hearing based solely on affidavits.

(4) Any person who prevails against an agency in any action in the courts seeking the right to inspect or copy any public record or the right to receive a response to a public record request within a reasonable amount of time shall be awarded all costs, including reasonable attorney fees, incurred in connection with such legal action. In addition, it shall be within the discretion of the court to award such person an amount not less than five dollars and not to exceed one hundred dollars for each day that he or she was denied the right to inspect or copy said public record.

(5) For actions under this section against counties, the venue provisions of RCW 36.01.050 apply.

(6) Actions under this section must be filed within one year of the agency's claim of exemption or the last production of a record on a partial or installment basis. RCW 42.56.550

A person who has been denied the opportunity to inspect or copy a record requested under the Act may file a suit in the superior court of the county in which a record is kept (or, if the case is against a county, in the adjoining county). RCW 42.56.550.  See also WAC 44-14-08004. The agency has the burden to prove that a specific exemption applies to the record or part of the record withheld from disclosure. Id.; Hearst Corp. v. Hoppe, 90 Wn.2d 123, 130, 580 P.2d 246 (1978).  A court will interpret exemptions narrowly and in favor of disclosure (RCW 42.56.030 ) and will order the disclosure of a non-exempt record “even though such examination may cause inconvenience or embarrassment to public officials or others” (RCW 42.56.550(3)).

A person may also go to superior court and ask a judge to determine whether the agency’s estimate of time to provide the records is indeed “reasonable.”  RCW 42.56.550(2).  The burden of proof is on the agency to prove its estimate is “reasonable.” Id.  See also WAC 44-14-08004(4).

The court’s review of the agency’s decision is de novo (meaning that the court reviews the matter on its own, without regard to the decision of the agency). RCW 42.156.550(3).

The procedure for judicial review is set forth in RCW 42.56.550. It is a speedy and often informal process for quickly determining if the agency improperly withheld records or gave an unreasonable time estimate.  See WAC 44-14-08003(1). The PRA provides for a “show cause” hearing.  See WAC 44-14-08004(3).  A requestor usually starts the case by filing and serving a complaint stating the facts (the request, the agency’s response, why the requestor thinks the agency is wrong).  The requestor also files a motion asking the court to order the agency to appear and show cause why it can lawfully withhold the record or part of a record, or why its time estimate is reasonable.  At the same time, a requestor seeking access to withheld records will often file a motion to “lodge” records, asking the judge to order the agency to file the disputed records (unredacted) with the court under seal so the judge can review them in private (called “in camera” review).  There is authority to allow the requestor’s attorney, but not the requestor, to review the disputed documents under a protective order.  Seattle Firefighters v. Hollister, 48 Wn. App. 129, 131, 737 P.2d 1302 (1987). The motion to show cause and motion to lodge records are almost always issued “ex parte,” which means the requestor presents it to a judge without the agency present. 

In the show cause order, the court sets a date for the show cause hearing.  The parties can file a brief on legal issues and declarations on factual issues.  The judge reviews the unredacted disputed records if lodged in camera and the briefs and affidavits before the show cause hearing.  See WAC 44-14-08004(6). Because RCW 42.56.550(3) provides that the court may conduct the hearing “based solely on affidavits,” courts almost always decide show cause hearings based on argument and any declarations presented; live testimony is very rare. See Cowles Publishing Co. v. City of Spokane, 69 Wn. App. 678, 683, 849 P.2d 1271, review denied, 122 Wn.2d 1013 (1993).  See also WAC 44-14-08004 (6). After the parties argue their case at the show cause hearing, the judge decides whether the records or portions of records should be disclosed.  If the judge orders any record or part of a record released, or determines that the time estimate was not “reasonable,” or that the agency has otherwise violated the Act by failing to provide a sufficient response of the agency’s “fullest assistance” (see Citizens for Fair Share v. Department of Corrections, 117 Wn. App. 411, 431, 72 P.3d 206 (2003)m and Doe I v. State Patrol, 80 Wn. App. 296, 908 P.2d 914 (1996)), the requestor is the “prevailing party” entitled to reasonable attorneys fees, costs, and penalties (discussed below).  When that occurs, the judge typically schedules another hearing to determine the amount of attorneys fees, costs, and penalties. Both sides may provide briefs and declarations on these issues before that hearing.  See WAC 44-14-08004(3).

Requestors must start these actions against agencies within a year of when it claims an exemption or when it last produces records under the request.  RCW 42.56.550(6).  This amendment effective in July 2005 clarified that the statute of limitations of five years under campaign disclosure and finance laws in Ch. 42.17 did not apply to public records lawsuits. 

E.  Attorneys' Fees, Costs, and Daily Penalty

Statutory Provision: Any person who prevails against an agency in any action in the courts seeking the right to inspect or copy any public record or the right to receive a response to a public record request within a reasonable amount of time shall be awarded all costs, including reasonable attorney fees, incurred in connection with such legal action. In addition, it shall be within the discretion of the court to award such person an amount not less than five dollars and not to exceed one hundred dollars for each day that he or she was denied the right to inspect or copy said public record. RCW 42.17.550(4)

A party who "prevails" against an agency in a lawsuit seeking either to disclose a record or to receive an appropriate response within a reasonable time may recover costs and reasonable attorneys' fees.  RCW 42.56.550(4).   In addition, the court must also award a statutory penalty of between $5 and $100 per day for each day that the agency denied the requestor the right to inspect or get a copy of a public record. Id. See also WAC 44-14-08004(7).

A requestor is the "prevailing party" if the final court hearing the matter determines that the record or portion of a record “should have been disclosed on request.”  Spokane Research & Defense Fund v. City of Spokane, 155 Wn.2d 89, 103, 117 P.3d 1117 (2005) (“Spokane Research IV”)) or that some other violation of the Act occurred.  Citizens for Fair Share v. Department of Corrections, 117 Wn. App. 411, 431, 72 P.3d 206 (2003), and Doe I v. State Patrol, 80 Wn. App. 296, 908 P.2d 914 (1996).  The requestor is also the “prevailing party” if the agency “voluntarily” provides the records after being sued.  Id. at 102-104. 

The award of reasonable attorneys' fees and the award of the statutory penalty are mandatory, although the amount is within the court's discretion. Progressive Animal Welfare Soc'y v. University of Wash., 114 Wn.2d 677, 683-84, 790 P.2d 604 (1990); Doe I v. Washington State Patrol, 80 Wn. App. 296, 302, 908 P.2d 914 (1996); Lindberg v. Kitsap Cy., 82 Wn. App. 566, 574, 919 P.2d 89 (1996); Amren v. City of Kalama, 131 Wn.2d 25, 36-37, 929 P.2d 389 (1997). The principal factor to be considered in setting the amount of the statutory daily penalty is whether the agency acted in bad faith, Amren, 131 Wn.2d at 37-38, Yacobellis v. City of Bellingham, 64 Wn. App. 295, 303, 825 P.2d 324 (1992), but bad faith is not required. The requester need not show actual loss. See Yacobellis, 64 Wn. App. at 303. The penalty is for each day the record was withheld and need not be per record, although a court has discretion to group records into categories and impose penalties per category.  Yousoufian v. Office of Ron Sims, 152 Wn.2d 421, 436, 98 P.3d 463 (2004).  The penalty runs “for the time between the request and the disclosure[.]” Spokane Research IV, 155 Wn.2d at 104. 



Attorney General’s Open Government Internet Deskbook (Public Records and Open Meetings)

Chapter 1: Public Records Act – General and Procedural Provisions
Chapter 2: Public Records Act – Exemptions from Disclosure (Laws Allowing Withholding of Records)
Chapter 3: Open Public Meetings Act – General and Procedural Provisions
Chapter 4: Open Public Meetings Act – Executive Sessions (Closed Sessions)

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