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May an agency disclose electronic records in an electronic format of their choice?

May an agency disclose electronic records in an electronic format of their choice?

(Public Records Act, Electronic Records) Permanent link

The Public Records Act doesn’t explicitly address disclosure of public records in an electronic format.

The Attorney General’s Model Rules provide non-binding advice on disclosure of electronic records in an electronic format.  Based on the Attorney General’s Model Rules, an agency “should” disclose reasonably locatable electronic records in an electronic format when requested.  WAC 44-14-050. The electronic format should be a commercially available format used by the agency, or an agency may also provide electronic records in an electronic format that is reasonably translatable from a different format used by the agency.

An agency may choose to translate electronic records from a native format to a more commercially available format (such as a PDF file).  (See comments to the model rules at WAC 44-14-05001.)  The translated records would be more accessible to the public.  An agency is also required by law to adopt rules that “protect public records from damage or disorganization, and to prevent excessive interference with other essential functions of the agency”.  RCW 42.56.100.  Providing public records in a PDF format may allow public examination while permitting an agency to protect its public records from intentional alteration and damage.  (It is a felony to willfully alter a record filed in a public office pursuant to RCW 40.16.010.)

Unlike the state Public Record Act, federal law (Electronic Freedom of Information Act Amendments of 1996) explicitly requires federal agencies to provide a record in the format requested if the record is readily reproducible in that format. 5 U.S.C. §552(a)(3)(B).  Washington State courts have looked to or adopted FOIA standards in some PRA cases.  See, e.g., Bonamy v. City of Seattle, 92 Wn. App. 403, 410 (1999) (“identifiable records” requirement for a request).  Bonamy states: “In interpreting the FOIA, federal courts have held that this requirement of identification is satisfied when there is ‘a reasonable description enabling the government employee to locate the requested records.’”  However, no state court has considered the adoption of federal law on disclosure of electronic records.

The Attorney General’s Model Rules provide the best practices for responding to records requests.  The Attorney General’s Model Rules are non-binding advice for compliance with the Public Records Act.  Courts have cited the Attorney General’s Model Rules in three published cases.  Soter v. Cowles Pub. Co., 162 Wn.2d 716, 753 (2007); Rental Housing A’ssn of Puget Sound v. City of Des Moines, 165 Wn.2d 525, 539 (2009); Beal v. City of Seattle, 209 P.3d 872, 876 (2009) (holding that the Attorney General’s non-binding rules contain “persuasive reasoning”).

Posted by Open Government Ombudsman at 08/13/2009 01:54:51 PM 

DISCLAIMER: The "Unredacted" webpage and its content is not intended or offered to provide legal advice or legal representation by the Office of the Attorney General. The attorney general's office provides information, technical assistance, and training on the provisions of the Open Public Meetings Act pursuant to RCW 42.30.210 and provides information to records requestors and state and local agencies about "best practices" for complying with the Public Records Act consistent with the adoption of model rules pursuant to RCW 42.56.570. Send Feedback
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