PUBLIC RECORDS ACT – GENERAL AND PROCEDURAL PROVISIONS
Chapter last revised: October 28, 2016
1.1 The Public Records Act (PRA) is Interpreted in Favor of Disclosure
The PRA was enacted by initiative to provide the people with broad rights of access to public records. The PRA declares that it must be "liberally construed" to promote the public policy of open government:
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 to promote this public policy and to assure that the public interest will be fully protected. In the event of a conflict between [the PRA] and any other act, the provisions of [the PRA] shall govern. 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).
Courts interpret the PRA liberally to promote the purpose of informing people about governmental decisions and promote government accountability. WAC 44-14-01003 (summarizing how PRA is interpreted by courts).
1.2 “Public Record” Is Defined Broadly
The definition of a public record (other than a record of the Legislature) contains three elements. RCW 42.56.010(3) and (4); WAC 44-14-03001. First, the record must be a "writing," which is broadly defined in RCW 42.56.010(4) to include any recording of any communication, image or sound. A writing includes not only conventional documents, but also videos, photos, and electronic records including emails 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. “Proprietary” refers to where an agency function is similar to a private business function or venture.
Third, the writing must be prepared, owned, used or retained by the agency. West v. Thurston County, (2012); Nissen v. Pierce County (2015). 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. Yacobellis v. City of Bellingham (1989); see also O’Neill v. City of Shoreline (2010) (agency must produce non-exempt metadata when it is requested). An agency need not possess a record for it to be a “public record.” Concerned Ratepayers v. Pub. Util. Dist. No. 1 (1999) (records held by out-of-state private vendor were “public records” because they were “used” by agency); see also Forbes v. City of Gold Bar (2012); O’Neill v. City of Shoreline (2010) (agency records on city officials’ personal computers subject to PRA); Nissen v. Pierce County (2015) (agency records on personal cell phones). Although this element is broad, it is not limitless. Compare 1983 Att’y Gen. Op. No. 9 (list of customers of public utility district is a public record) with 1989 Att’y Gen. Op. No. 11 (registry of municipal bondholders is not public record because it was compiled by trust company and never prepared, possessed or used by county).
The PRA applies only to "public records." Oliver v. Harborview Med. Ctr. (1980); Nissen v. Pierce County (2015). The definition of "public record" is to be liberally construed to promote full access to public records. Id.
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.). See Concerned Ratepayers v. PUD No. 1. (1999).
1.3 The PRA Applies to State and Local Agencies
As noted above, only the records of an "agency" are covered by the PRA. The PRA's definition of "agency" is broad and covers all state agencies and all local agencies. RCW 42.56.010(1); WAC 44-14-01001. Courts have interpreted that definition to include a city's design and development department (Overlake Fund v. City of Bellevue (1991)); a county prosecutor's office (Dawson v. Daly (1993)); a city's parks department (Yacobellis v. City of Bellingham (1989)); and a public hospital district (Cornu-Labat v. Hospital Dist. No. 2 of Grant County (2013)). Some non-government agencies (such as an association of counties) that perform governmental or quasi-governmental functions can be considered the functional equivalent of an “agency” if they meet certain criteria. 2002 Att’y Gen. Op. No. 2; Telford v. Thurston County Board of Commissioners (1999); Clarke v. Tri-Cities Animal Care Control Shelter (1999). If the non-governmental entity does not satisfy the criteria demonstrating it is the functional equivalent of a public agency, the entity is not subject to the PRA. Woodland Park Zoo v. Fortgang (2016). Under the exceptional circumstances of one case, certain records of a contractor acting as the functional equivalent of a public employee were subject to a PRA request. Cedar Grove Composting Incorporated v. City of Marysville (2015). Whether a group of public agencies operating together by agreement can be sued as separate legal entity under the PRA can be a mixed question of law and fact. Worthington v. WestNet (2014).
The PRA applies in a more limited form to the Washington State Legislature. Information about accessing legislative documents is available here.
The PRA does not apply to court case files; but those files are available through common law rights of access and court rules. Nast v. Michels (1986); see also Cowles Publishing Co. v. Murphy (1981); Yakima County v. Yakima Herald-Republic (2011) and City of Federal Way v. Koenig (2009). 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 (2000). Records held by entities that are part of the judicial branch of government are also not subject to the PRA. West v. Washington State Association of District and Municipal Court Judges (2016). Records that are held by other agencies (non-judicial entities), even if they relate to court activities, are available under the PRA from those agencies unless they are subject to a protective order. See, e.g., Morgan v. Federal Way (2009) and Yakima County v. Yakima Herald-Republic (2011). As noted, court rules govern access to court case files and administrative records. The Washington State Courts website has more information. See General Rule (GR) 31 and General Rule (GR) 31.1 and these links on the court’s website.
1.4 An Agency’s PRA Processes Must Assist Requesters
The PRA requires agencies to implement several procedures for processing PRA requests. They include:
- Appointing a public records officer and making that information available to the public.RCW 42.56.580.
- Adopting procedures for handling PRA requests.RCW 42.56.040.
- Publishing a list of exemptions to and prohibitions from disclosure.RCW 42.56.070.
- Maintaining an index of records, with certain exceptions.RCW 42.56.070.
- Adopting a PRA copying fee schedule.RCW 42.56.070; RCW 42.56.120.
- Providing a review procedure for denial of records.RCW 42.56.520.
Agencies are to establish procedures to assist records requesters. RCW 42.56.040; RCW 42.56.580; RCW 42.56.070(1); RCW 42.56.100; Resident Action Council v. Seattle Housing Authority (2013). A state agency is required to adopt rules to assist the public in obtaining information about that agency, and local agencies must make that information available at the central office. RCW 42.56.040. See also WAC 44-14-01002. The Attorney General’s Office provides Model Rules for agencies to consider adopting for their procedures. See Ch. 44-14 WAC (last revised 2007).
These PRA rules must provide for the "fullest assistance to” requesters and the "most timely possible action" on requests. RCW 42.56.100; Resident Action Council v. Seattle Housing Authority (2013). An agency may not use its rules to create an exemption or other basis to withhold a record. Hearst Corp. v. Hoppe (1978). Agencies should have reasonable practices to allow them to promptly locate and produce requested documents if they are reasonably identifiable.
Agencies are required to appoint a public records officer and make the officer’s contact information publicly available. RCW 42.56.580. A list of state agency public records officers is available at the Office of the Code Reviser. WAC 44-14-020. The officer serves as the point of contact for a PRA request. The public records officer may have other persons assist in responding to requests. WAC 44-14-02002.
1.5 Agencies Must Retain Records Once Disclosure is Requested
Other state laws require state and local agencies to retain certain records for varying lengths of time depending on the content. See generally chapter 40.14 RCW, state and local government retention schedules, and WAC 44-14-03005. An agency is not liable under the PRA for not producing records that did not exist at the time of the request. Kozol v. Department of Corrections (2016). The PRA does not require production of records destroyed in accordance with state records retention schedules. Bldg. Indus. Ass’n of Wash v. McCarthy (2009). The fact that records do not exist because an agency inadvertently lost them before any request for their disclosure does not constitute a PRA violation. West v. Department of Natural Resources (2011). 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. RCW 42.56.010(3) (“public record” includes writing “retained” by agency).
RCW 42.56.100 also addresses the situation when a record scheduled for destruction is the subject of a pending request. The agency must suspend any planned destruction and retain requested records until the public records request is resolved. RCW 42.56.100 requires agencies to adopt and enforce reasonable rules to protect public records from damage or disorganization. Chapter 40.14 RCW governs records retention by public agencies.
1.6 The PRA Imposes Some Requirements on Requesters
The Attorney General’s Model Rules for public records provide detailed information on the public records request process. See chapter 44-14 WAC.
A person making a public records request is not required to give a reason for the request, unless the request is for lists of individuals. Dawson v. Daly (1993); Yacobellis v. City of Bellingham (1992). An agency may ask if a request for “lists of individuals” is “for commercial purposes." RCW 42.56.070(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,” and (3) disclosure is not “specifically authorized or directed by law.” The word "individuals" refers to "natural persons - as opposed to business entities, committees, or groups." 1975 Att’y Gen. Op. No. 15. 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 and includes a business activity by any form of business enterprise intended to generate profits, revenue or financial benefit. SEIU Healthcare 775NW v. State (2016) (interpreting what is a commercial purpose). An agency has an obligation to avoid disclosing lists of individuals for commercial purposes and may require a requester to sign a declaration describing the purpose of the request and stating that he or she will not use records listing individuals for a commercial purpose. Merely requiring the requester to affirm the request is not made for commercial purpose may not be enough depending on the circumstances and the agency may have an obligation to investigate depending on the nature of the request. Id; . see also 1988 Att’y Gen. Op. No. 12. An example of a disclosure “specifically authorized or directed by law” is RCW 84.40.020, which requires a county assessor’s real property tax rolls to be available for public inspection. 1980 Att’y Gen. Op. No. 1.
RCW 42.56.080 provides that agencies may not distinguish between requesters and must make records available to “any person.” However, the PRA recognizes that other statutes may limit which persons may receive records. RCW 42.56.080. For example, an agency may need to determine whether a particular requester is authorized to receive requested health care records pursuant to RCW 70.02.030. Also, a court order (including an injunction under RCW 42.56.565 or RCW 71.09.120(3) barring an inmate or sexually violent predator from receiving a record) may restrict an agency from releasing records to particular persons. RCW 42.56.080; WAC 44-14-04003(1). Or, an agency may need to know the identity of a requester asking for a list of individuals to verify the lack of a prohibited commercial purpose. RCW 42.56.070(9); RCW 42.56.080; SEIU Healthcare 775NW v. State (2016). For requests falling within the 2016 law, an agency may need to know the identity of a person requesting a body worn camera recording. RCW 42.56.080 (as amended in 2016); RCW 42.56.240 (as amended in 2016). Therefore, depending upon the records requested and the laws that govern those records, sometimes an agency may consider the identity of a requester or need more information from a requester.
No particular form of public records request is required by the PRA. See RCW 42.56.080; RCW 42.56.100; Hangartner v. City of Seattle (2004); WAC 44-14-03006. However, a request must provide “fair notice” to the agency that it is a PRA request. Wood v. Lowe (2000); Germeau v. Mason County (2012). It must provide notice that it is a request made under the PRA, although it need not cite the PRA statute. Hangartner v. City of Seattle (2004); see also WAC 44-14-04002(1). A party seeking public records under the PRA must, "at a minimum, provide notice that the request is made pursuant to the [PRA] and identify the documents with reasonable clarity to allow the agency to locate them." Wright v. State (2013). The PRA specifically allows persons to make requests by mail (RCW 42.56.100), which includes email under current technology and practices.
Oral requests are not prohibited by the PRA, but they can be problematic. A written request is advisable for several reasons. It confirms the date on which the record is requested. 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. See WAC 44-14-03006. For these reasons, if a requester makes an oral request, an agency may need to follow up to confirm the request in writing.
Many agencies use public records requests forms, and make those forms available on their websites or at their offices. These forms typically identify what information the agency needs in order to process a request and search for records at that agency and thus can help expedite the request process. An agency’s rules for submitting public records requests must be reasonable and provide the fullest assistance to a requester. RCW 42.56.100.
Some laws outside the PRA require written requests for certain types of records.
D. “Identifiable Records” Requirement
To obtain records under the PRA, a requester must ask for existing "identifiable public records." RCW 42.56.080; WAC 44-14-04002(2).
A record must exist at the time of a request to be subject to required disclosure. A requester cannot have a “standing” request for records that may be available in the future. Sargent v. Seattle Police Dep’t (2011). An agency is not required to create a record to respond to a PRA request. Smith v. Okanogan County (2000); Fisher Broadcasting v. Seattle (2014); Benton County v. Zink (2015). However, electronic databases may present unique issues. For example, there is not always a simple answer to when an agency is producing an existing document as compared to creating a new record. Fisher Broadcasting v. Seattle (2014). An agency needs to look at the specific facts of each case. Fisher Broadcasting v. Seattle (2014). An agency does not have broad duties to respond to questions, do research, or give information that is not an identifiable public record. Limstrom v. Ladenburg (2002).
A requester satisfies the "identifiable record" requirement when he or she provides a "reasonable description" of the record enabling the agency to locate the requested records. Bonamy v. City of Seattle (1998); Hangartner v. City of Seattle (2004); Wright v. State (2013); WAC 44-14-04002. The request must be for identifiable records or classes of records, so the agency can search for potentially responsive records. Fisher Broadcasting v. Seattle (2014). A public records request must identify the records sought with “reasonable clarity.” Wright v. State (2013).
However, the requester need not identify the record with precision. A requester is not required to use the exact name of the record in a PRA request.
An agency has a duty that its procedures provide the “fullest assistance” to inquirers, RCW 42.56.100, which may include assisting persons to fairly identify the documents requested. Agencies can ask a requester to clarify an unclear request. RCW 42.56.520.
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 is 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; therefore, the agency is not obligated to respond to the first request under the Public Records Act.
Requesters should send their PRA requests to the agency that has the records they seek. An agency can adopt rules explaining that requests are to be directed to a specific person (such as the public records officer) or to a specific address, provided that the requester has notice of the requirement. See RCW 42.56.040; RCW 42.56.070(1); RCW 42.56.100; Parmelee v. Clarke (2008). This process ensures that the request is received in a manner that enables the agency to timely respond and to give the fullest assistance to a requester.
A requester should review the agency’s procedures to see what agency address to use to submit the request. The request should be submitted to the agency’s public records officer to promote the promptest response.
1.7 Agencies Have 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. Initial Response Within Five Business Days
An agency must respond to a request for public records within five business days of receipt of the request. RCW 42.56.520. Under RCW 1.12.040, the time allowed excludes the day of receipt from the computation. The initial response to the request must do at least one of the following: (1) produce the requested records by making them available for inspection at agency offices or by mailing or emailing copies to the requester; (2) provide an Internet address and link on the agency’s website to the requested records; (3) acknowledge receipt of the request and give a reasonable estimate of the time needed; or, 4) deny all or part of the request in writing. RCW 42.56.520. Each type of initial response is discussed below.
A request for voluminous records does not excuse an agency’s initial response within five business days, even if it may take longer to produce the records. Zink v. City of Mesa (2007) (requiring strict compliance). See discussion in Chapter 1.7D below regarding estimates of time for further response. While the PRA requires a written response only for denials of records (see also RCW 42.56.210(3)), agencies should nevertheless respond (or confirm a verbal response) in writing (by email or letter) in order to have a contemporaneous record of the response in case of a dispute. Also, if an agency does not find responsive records, it should explain, in at least general terms, the places searched. Neighborhood Alliance v. Spokane County (2011); see also Fisher Broadcasting v. Seattle (2014) (agency should show it attempted to be helpful).
Under case law, the failure to respond within the five business days is a violation of the PRA and entitles the requester to seek an award of attorneys' fees and statutory penalties. West v. Department of Natural Resources (2011).
An agency must conduct an adequate search for requested records. Neighborhood Alliance v. Spokane County (2011); Fisher Broadcasting v. Seattle (2014); Block v. City of Gold Bar (2015); Kozol v. Department of Corrections (2016). The search must be reasonably calculated to uncover all relevant documents. Id. See also Nissen v. Pierce County (2015) (searches for agency employees’ relevant records on non-agency devices).
An agency is not required to go outside its own records in its search. Limstrom v. Ladenburg (2002); Bldg. Indus. Ass’n of Wash .v. McCarthy (2009). As noted, a requester must identify the documents with sufficient clarity to allow the agency to locate them. Hangartner v. City of Seattle (2004); Hobbs v. State (2014). An agency can ask a requester to clarify the request to assist in the search.
The PRA states broadly that an agency shall make available for inspection and copying all public records, unless a specific exemption or other statute applies. RCW 42.56.070(1). (The exemptions from disclosure are discussed below in Chapter 2). A requester has a right to inspect and copy records, but is not required to do both. WAC 44-14-07001(4). For example, a person may choose to inspect all public records on a certain subject but ask for a copy of only some of the records inspected. Also, a requester may ask for copies of records without first inspecting the records at agency offices.
Agencies can produce records in installments over time. RCW 42.56.550(6). However, even though some of the records requested may be readily available, the agency is not required to respond to a request in piecemeal fashion. Ockerman v. King County Dept. of Dev. & Envtl. Servs. (2000).
- Internet Link
Records can be made available for inspection and copying by providing a link to the records on the agency’s website although, if the requester cannot access records through the Internet, the agency must provide either copies or access to the records from an agency computer. RCW 42.56.520. ("When an agency has made records available on its website, members of the public with computer access should be encouraged to preserve taxpayer resources by accessing those records online.") Agencies are encouraged to make commonly requested records available on agency websites. Laws of 2010 c. 69 (see notes following RCW 42.56.520).
- Inspection at Agency Offices
Public records must be made available for inspection and copying at agency offices during the normal business hours of the agency for at least 30 hours per week (except in weeks that include state legal holidays) unless the requester and the agency agree on a different time. RCW 42.56.090. The agency’s customary business hours must be posted on the agency’s website and also made known to the public by other means. Id.
There is no charge for inspecting records at an agency office. RCW 42.56.070; WAC 44-14-07001(1). Requesters who choose to inspect records at agency offices 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 if copies are requested during an inspection, an agency promptly processes the request for copies and notifies the requester when the documents are ready. If the amount of requested documents is not voluminous, and if staff resources permit, the agency often may copy the documents while the requester waits. Use of an agency’s copying facilities should not "unreasonably disrupt the operations of the agency." RCW 42.56.080.
- Charging for Records
Under the PRA, no one may be charged a fee for the inspection of public records. RCW 42.56.070; WAC 44-14-07001(1). Consequently, no agency may charge a person for the time to search for records for inspection.
A requester can ask the agency to make copies of requested records and the agency can charge for the copies. The PRA sets out the parameters for agency copying charges at RCW 42.56.120, RCW 42.56.070 and RCW 42.56.130. Effective June 9, 2016, charges for the costs involved in producing and redacting copies of certain body worn camera recordings are governed by RCW 42.56.240. See further details of such recordings in Chapter 2.2D5. Other laws outside the PRA may set copying charges that supersede those in the PRA. RCW 42.56.130.
While the PRA does not require an agency to make a copy of a record available electronically when an electronic copy is requested, the agency is to consider if it is reasonable and feasible to do so as part of providing the fullest assistance to requesters. Mitchell v. Department of Corrections (2011). An agency is not required to scan a paper copy into an electronic copy. Mechling v. Monroe (2009); Benton County v. Zink (2016).
Expenses for copying records must be limited to "actual" costs of copying as set by the agency. RCW 42.56.070(7) allows for costs to include actual per page costs or “other costs” directly incident to copying records. RCW 42.56.120 provides that a reasonable charge may be assessed for providing copies of public records and use of agency equipment, not to exceed the amount necessary to reimburse the agency. These costs may include the paper, ink, storage media (such as a CD) and cost per page for the use of copying equipment, together with staff salary expense incurred in copying. The costs may include scanning fees. WAC 44-14-05002, WAC 44-14-07003. 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. RCW 42.56.120; WAC 44-14-07001(2). An agency can use an outside vendor to make the copies and assess those copying costs to the requester. Benton County v. Zink (2016); WAC 44-14-07001(5). 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.
An agency may require a deposit of up to 10 percent of the estimated cost before copying records. RCW 42.56.120. Records may be provided in installments, and an agency may assess copying charges per installment. RCW 42.56.120. If an installment of records is not paid for or inspected, the agency need not continue its response to the request. RCW 42.56.120.
Agency charges for copies and other costs are to be published by the agency, and those are often in a “fee schedule”. RCW 42.56.070(7).
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 and redacting records to make them available for inspection. An agency may charge for copies in accordance with its fee schedule, and the fees are limited to staff costs incurred in making copies, plus mailing/delivery costs.
The PRA recognizes that an agency may need more than five business days to complete a request. Forbes v. City of Gold Bar (2012); Hobbs v. State (2014). In those situations, the agency must estimate the additional time needed to respond based upon time needed to: (1) clarify a request; (2) “locate and assemble” records to respond to the request; (3) contact a third party affected by the request; 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. Each basis for needing additional time is discussed below.
The PRA does not require an agency to provide a written explanation of its time estimate. Ockerman v. King County Dept. of Dev. & Envtl. Servs (2000). An agency may extend its initial estimate of time when more time is needed than first anticipated. Andrews v. Wash. State Patrol (2014). The “operative” word for the estimate of time is “reasonable.” Forbes v. City of Gold Bar (2012).
To provide a "reasonable" estimate, an agency should not use the same estimate for every request. WAC 44-14-04003. An agency should roughly calculate the time it will take to respond to the request and send estimates of varying lengths, as appropriate for different requests. Id. There is no standard amount of time for fulfilling a request so reasonable estimates should vary. Id.
The PRA authorizes lawsuits challenging the reasonableness of an agency’s time estimate. RCW 42.56.550(2). The burden of proof is on the agency to show that its estimate was reasonable. Id. When a person prevails against an agency in an action seeking the right to receive a response to a public records request within a reasonable time, that person is entitled to an award of attorney fees and costs incurred in the action. RCW 42.56.550(4).
- Requesting Clarification
An agency may need additional time to clarify the request if the request cannot be understood or does not ask for identifiable records. An agency may also need time to clarify by confirming the identity of a requester or to obtain other information from the requester in order to comply with laws or court orders governing access to the requested records. Clarification of the intent of the request may be needed if the request is for a prohibited commercial purpose. SEIU Healthcare 775NW v. State (2016).
The purpose of the PRA is best served by communications between agencies and requesters. Hobbs v. State (2014); WAC 44-14-04003(3). A requester’s failure to clarify a request excuses the agency from responding to the unclarified request. RCW 42.56.520; see also White v. Skagit County and Island County (2015).
- Locating and Assembling Records
An agency may need additional time to locate and assemble records. And, the PRA recognizes that agencies have essential functions in addition to providing public records. RCW 42.56.100; WAC 44-14-04001; Zink v. City of Mesa (2007). The Model Rules comment at WAC 44-14-04001 (cited in Forbes v. City of Gold Bar (2012)) describes in part:
Requesters should keep in mind that all agencies have essential functions in addition to providing public records. Agencies also have greatly differing resources. The act recognizes that agency public records procedures should prevent "excessive interference" with the other "essential functions" of the agency. [RCW 42.56.100]. Therefore, while providing public records is an essential function of an agency, it is not required to abandon its other, nonpublic records functions. Agencies without a full-time public records officer may assign staff part-time to fulfill records requests, provided the agency is providing the "fullest assistance" and the "most timely possible" action on the request. The proper level of staffing for public records requests will vary among agencies, considering the complexity and number of requests to that agency, agency resources, and the agency's other functions.
A court reviewing an agency’s estimate of time for assembling records may consider “the circumstances” related to the request. Bartz v. Department of Corrections (2013). For example, the Bartz court considered the volume of potentially responsive records that needed to be reviewed, the agency’s need to seek clarification, the agency’s reasonable explanation for the timeframe, and the fact the agency provided records in installments. The court in Ockerman v. King County Dept. of Dev. & Envtl. Servs. (2000) considered that the records were in multiple locations and were being used by the prosecutor’s office in litigation. The court in Forbes v. City of Gold Bar (2012) described the city’s response as “reasonable in light of the difficulty the city had in retrieving the information and the efforts it expended to recover the information,” and referenced the Model Rules. The court in West v. Department of Licensing (2014) considered that the request was “complex and broad.” And the court in Andrews v. Wash. State Patrol (2014) said an agency may extend its time estimate if locating records takes more time than initially anticipated. However, while an agency may provide a reasonable estimate of time to produce requested records, an agency cannot use the estimated date as an excuse to withhold records that are no longer exempt (for example, when investigations are completed earlier than estimated). Wade’s Eastside Gun Shop v. Department of Labor and Industries (2016).
- Contacting Third Parties
An agency may need additional time to contact third parties. The PRA permits agencies to notify third parties about a PRA request in order to allow them to seek a court order restricting disclosure of the requested records. RCW 42.56.540; Doe v. Washington State Patrol (2016). RCW 42.56.540 gives agencies the “option” of notifying persons named in a record or to whom a record pertains, that the record has been requested, unless the law requires such notice. An agency may give such persons a “reasonable” amount of time (a “realistic opportunity”) to obtain an injunction against producing records before complying with a request for non-exempt records. Wade’s Eastside Gun Shop v. Department of Labor and Industries (2016). An agency should notify affected third parties promptly after identifying that they may have an interest in the disclosure of requested records so the agency does not create unnecessary delay. Wade’s Eastside Gun Shop v. Department of Labor and Industries (2016); see also WAC 44-14-04003(11) (describing that the practice of many agencies is to give a 10-day deadline for a person to obtain an injunction restricting disclosure). If no court order is obtained during the allotted time, the agency must produce the records.
- Reviewing for Exempt Content
An agency may need additional time to review records for exempt content. Agencies are not relieved of their duties to respond to requests for public records because an exemption applies. RCW 42.56.210. An agency must determine if all or only part of a record is exempt. If only part of a record is exempt, an agency must withhold or redact only the exempt information and disclose the rest of the document. Hearst Corp. v. Hoppe (1978); see also WAC 44-14-04004(4)(b)(i). If an entire document is exempt or if redaction is not required under RCW 42.56.210(1) or other laws, an agency must still provide the requester the basis for the exemption. (See more detailed discussion of exemptions in Chapter 2).
When denying access to records in whole or in part, agencies must do so in writing and specify the reasons for the denial. RCW 42.56.520; RCW 42.56.210(3). The written response must identify the specific statutes relied upon by the agency to withhold the record or part of a record from production and must briefly explain how the exemptions apply to the records requested. RCW 42.56.210(3); City of Lakewood v. Koenig (2014); see also White v. Skagit County and Island County (2015).
In order to comply with the PRA and to create an adequate record for a reviewing court, the agency's denial must identify any individual records withheld in their entirety. Progressive Animal Welfare Soc'y v. University of Wash. (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 and it may argue additional reasons for nondisclosure on judicial review. PAWS II.
F. No Liability for Good Faith Response
A good faith decision by a public agency to comply with the PRA and release a public record relieves the agency or any public official or employee from liability arising from the disclosure. RCW 42.56.060. 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 successfully sue a public agency under the PRA for a good faith release of that record on the basis that the disclosure violated the subject's privacy. There may be rights to sue under other statutes which may impose confidentiality requirements for certain types of records. The protection from liability by RCW 42.56.060 does not apply to the failure to disclose information that should have been disclosed. In that situation, 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. Amren v. City of Kalama (1997).
1.8 Agency Decisions May Be Reviewed Internally and In Court
A. Review by Agency of Its Own Denial
Agencies must establish procedures to promptly review decisions denying access to records in whole or in part. RCW 42.56.520. Final agency action that grants a requester the right to seek judicial review is deemed complete at the end of the second business day after an agency’s denial of the right to inspect any portion of a record. This means that a requester may file a court case two business days after the initial denial regardless of whether the agency has completed its internal review. WAC 44-14-08001; WAC 44-14-08004. A requester should consult an agency’s rules or procedures describing its internal reviews. And, a requester and an agency can agree to extend the time to permit an internal review. Note that an agency may cure a PRA violation by voluntarily remedying an alleged problem while the request remains open and the agency is actively engaging in efforts to fully respond to the request, so it is in the requester’s interest to promptly communicate concerns about an agency’s response. Hobbs v. State (2014).
B. Attorney General Review of Denial by State Agency
A requester may ask the Attorney General to review a state agency’s claim that a record is exempt from disclosure. RCW 42.56.530. 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 respond to the request. RCW 42.56.530 does not allow the Attorney General to formally review denials of requests by local agencies; however, the Attorney General’s Office may provide information and technical assistance under RCW 42.56.155. The review is nonbinding and a requester is not required to seek review before going to court.
C. Third-Party Action to Prevent Disclosure
A third party who is named in a record, or who is the subject of a record, may seek an injunction to prevent the production of a record. RCW 42.56.540; Doe v. Washington State Patrol (2016). An agency may also seek a judicial determination on whether a record should be disclosed. Soter v. Cowles Publishing Co. (2007). The action to prevent disclosure may be filed in the superior court where that party resides or where the record is kept. Id. The requester is a necessary (required) party. Burt v. Department of Corrections (2010).
The burden of proof is on the party seeking to block disclosure. Confederated Tribes of the Chehalis Reservation v. Johnson (1998). An injunction requires proving both that a PRA exemption applies and that disclosure “would clearly not be in the public interest and would substantially and irreparably damage any person, or ... vital governmental functions.” Morgan v. City of Federal Way (2009). See also Progressive Animal Welfare Soc'y v. University of Wash. (1994) (PAWS II).
Additional procedures may apply to injunctions regarding public records requests from inmates or sexually violent predators. RCW 42.56.565; RCW 71.09.120(3).
D. Filing Suit to Enforce the PRA
A records requester 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. RCW 42.56.550; see generally WAC 44-14-04004(4) and -08004(5). Note that an agency may cure a PRA violation by voluntarily remedying an alleged problem while the request remains open and the agency is actively engaging in efforts to fully respond to the request. Therefore, prior to going to court it is in the requester’s interest to promptly communicate with an agency if a requester has concerns about the agency’s action or inaction. Hobbs v. State (2014).
A person who has been finally denied the opportunity to inspect or copy a record requested under the PRA may file a lawsuit 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 (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” (language now codified at 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 “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 42.56.550(3).
The procedure for judicial review is set forth in RCW 42.56.550. Procedures may include a “show cause” hearing, but cases under the PRA may also be resolved through summary judgment. Spokane Research and Defense Fund v. City of Spokane (“Spokane Research IV”) (2005). The court’s rules will also govern the proceedings. More information about PRA court procedures is in RCW 42.56.550 and the Model Rules at WAC 44-14-08004. Court procedures are also described in the court’s Civil Rules. Some courts have adopted local rules for PRA proceedings. See, e.g., Thurston County Local Rule 16. And, a brochure on the courts’ website explains civil proceedings in superior court for parties unrepresented by attorneys (self-represented persons or “pro se” parties).
Requesters must start these PRA actions against agencies within a year of when the agency claims an exemption or when it last produces records on an installment basis. RCW 42.56.550(6). Under Belenski v. Jefferson County (2016), the one-year statute of limitations begins on an agency's final, definitive response to a public records request and applies to all possible agency responses under the PRA. See also Rental Housing Association of Puget Sound v. City of Des Moines (2009); Klinkert v. Washington State Criminal Justice Commission (2015); and, White v. City of Lakewood (2016). In Belenski the State Supreme Court also described that the one-year statute of limitations could be “equitably tolled” (not run) if the facts show there was a dishonest response by an agency that intentionally withholds presumably disclosable records.
An agency may file a lawsuit to seek a court determination of its obligations under the PRA. Benton County v. Zink (2016).
E. Attorneys' Fees, Costs, and Daily Penalty
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 is entitled to recover costs and reasonable attorneys' fees (with the exception of actions involving disclosure of body worn camera recordings governed by the procedures in RCW 42.56.240 as amended in 2016). RCW 42.56.550(4). In addition, the court may award a statutory penalty of up to $100 for each day that the agency denied the requester the right to inspect or get a copy of a public record (with the exception of actions involving disclosure of body worn camera recordings governed by the procedures in RCW 42.56.240 as amended in 2016). Id. The daily penalty range is $0 to $100. See also WAC 44-14-08004(7). Penalties may not be awarded to an inmate unless the court finds the agency acted in bad faith. RCW 42.56.565.
A requester 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 (“Spokane Research IV”) (2005), or that some other violation of the PRA occurred. Doe I v. Washington State Patrol (1996). The requester also prevails if the agency “voluntarily” provides the records improperly withheld after being sued. The award of reasonable attorneys' fees incurred to a prevailing party is mandatory (with the exception of actions involving disclosure of body worn camera recordings governed by the procedures in RCW 42.56.240 as amended in 2016), although the amount is within the court's discretion. Progressive Animal Welfare Soc'y v. University of Wash. (1994); Doe I v. Washington State Patrol (1996); Lindberg v. Kitsap Cy. (1996); Amren v. City of Kalama (1997). A pro se party (a non-attorney representing himself or herself) is not entitled to an award of attorneys’ fees. Mitchell v. Department of Corrections (2011).
Penalties are not mandatory and can be awarded and computed within the court’s discretion. RCW 42.56.550(4); Wade’s Eastside Gun Shop v. Department of Labor and Industries (2016). A court is to consider a nonexclusive list of factors when assessing a penalty. Yousoufian v. Office of Ron Sims (2004); Neighborhood Alliance v. Spokane County (2011). There are factors that can increase (aggravate) a penalty and factors that can decrease (mitigate) a penalty.
Other provisions of the PRA include:
- Training. Public records officers and elected local and elected statewide officials must receive PRA training within 90 days of assuming their duties, and must receive refresher training no later than four years later. RCW 42.56.152. The Attorney General’s Office has an Open Government Training Web page with more resources and information.
- Exemptions. Chapter 2 of this manual describes public records exemptions. An agency must publish and maintain a list of exemptions applicable to its records. RCW 42.56.070(2).
- Indexing. There are certain records indexing requirements, and the requirements depend upon whether the agency is a state or local agency. RCW 42.56.070. 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. 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.
- Data Breaches. RCW 42.56.590 provides procedures for notice of security breaches of data with personal information.
- Attorney General’s Office Assistance. The Attorney General’s Office may provide Model Rules, as well as other information, technical assistance, and training. RCW 42.56.155; RCW 42.56.570.