Open Public Records Act RCW ______________________________

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3 Open Government Laws are often called “Transparency Laws” or “Sunshine Laws” This is because they “shine light” on government. U.S. Supreme Court Justice Louis Brandeis once famously said, “Sunlight is the best disinfectant.” ___________________________________________________ Transparency builds public confidence in government.

Washington - Two Different Statutes Open Public Records RCW Public Records Act (PRA) Open Public Meetings RCW Open Public Meetings Act (OPMA) 4

Intent Open Public Records “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.” The “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.” Open Public Meetings “ The people of this state do not yield their sovereignty to the agencies which 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 retain control over the instruments they have created.” 5

History Open Public Records PRA passed via Initiative 276 in Formerly in RCW – now RCW Applies to all public agencies, state and local. Does not apply to courts. Limited application to Legislature. Applies to “public records” which are defined to include “writings.” Records are open unless there is an exemption authorized by law. Open Public Meetings OPMA passed in RCW Minutes requirement in another law - RCW Applies to all multimember public agency boards and commission governing bodies, and their committees. Does not apply to courts. Does not apply to Legislature. Requires meetings of governing body to be open gavel-to-gavel, unless there is an exception authorized by law. 6

Touchstone: Open Public Records Records of public agencies are presumed open. PRA is to be liberally construed. Records or information in records can be withheld only by law (e.g. exemption in law). Applies to Functional Equivalent Open Public Meetings Meetings of agencies subject to the OPMA are presumed open. OPMA is to be liberally construed. Meetings or parts of meetings can be closed only by law (e.g. executive sessions). Applies to Boards and Committees of Boards 7

Public Record Public record is very broadly defined: 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.” ~ RCW Prepared by Washington State Attorney General’s Office 8

Writing The term “Writing” includes “handwriting, typewriting, printing, photostating, photographing, and every other means of recording any form of communication or representation including, but not limited to... [just about everything you can think of.] No distinction between hard copy and electronic data – metadata must be disclosed when requested 9

Note: Public Records can also include records of agency business when they are created or retained by agency employees or officials on home computers or in non- agency accounts or on private communication devices. 10

11 The senior US Senator from Illinois privately ed University of Illinois at Urbana-Champaign Chancellor Phyllis Wise to offer his backing as she faced a storm of protest over the firing of Steven Salaita.University of Illinois at Urbana-ChampaignPhyllis WiseSteven Salaita The Electronic Intifada obtained Senator Richard Durbin’s 18 September from the university under the Freedom of Information Act (see below for full ). “Phyllis, I want you to know that I totally understood the difficult decision you faced in the recent tenure dispute and never doubted that you acted in a good faith effort to serve the University and its values,” Durbin wrote. As minority whip, Durbin holds the second most senior position in the Democratic leadership in the US Senate.

12 What Illinois Kept Secret University admits some officials used personal accounts to inappropriately withhold information sought in FOIA requests on Salaita and other controversies. Here's what the chancellor and others didn't want known.

Requests for Public Records Persons may request identifiable public records: Requesters may request to inspect public records. Requestors may request copies of pubic records. Agencies may adopt procedures explaining where requests must be submitted and other procedures. The public records act does not apply to requests solely for information For the University’s procedures see: WAC and APS

Responses to Requests The University must respond within five business days to a PRA request by: 1.Acknowledge receipt of the request and provide a reasonable estimate of time for further response (time for response can be extended); or 2.Fulfill the request; or 3.Provide an internet address and link to the records on the agency’s website (which fulfills part or all of the request) an example might be the university’s financial report or 4.Seek clarification; or, 5.Deny the request with an accompanying written statement of the specific reasons. Commonly requested documents could be placed on a website 14

Searches An agency must conduct an adequate search for responsive records. Must be reasonably calculated to uncover responsive records. Must follow obvious leads to possible locations where records are likely to be found. More than one location is often the case. Best Practice: DOCUMENT search efforts – record the locations, search terms used and other information to prove an adequate search was made NOTE: The agency bears the burden of proof to show the adequacy of the search. 15

Contacting Third Parties RCW gives the University the “option” to notify persons named in a record or to whom a record pertains, that the record has been requested. The University may give such person a reasonable amount of time to seek an injunction against disclosure before complying with a request for non- exempt records 16

Responding: Exemptions By law, agency records are presumed to be public. General Rule: Agency may withhold only the portion of a record that is clearly exempt. Exemptions must be authorized in law. Examples – student records, health care records, attorney client communications Exemptions are narrowly construed. Agency must provide brief explanation for each exemption. May not deny request simply because it is overly broad Responses must include reason for exemption and how it applies 117

Privacy No general “privacy” exemption. If privacy is an express element of another exemption, privacy is invaded only if disclosure about the person would be: 1.“Highly offensive to the reasonable person” and 2.“Not of legitimate concern to the public.” Information that does not satisfy both these factors cannot be withheld as “private” information Adapted from training prepared by Washington State Attorney General’s Office 18

Common Exemptions Personal information – very narrow. The statute says: (3) Personal information in files maintained for employees, appointees, or elected officials of any public agency to the extent that disclosure would violate their right to privacy; Investigative Files –law enforcement Education Records- FERPA Attorney/Client privileged information Protected health care information – Federal and state law 19

Other particular statutes to point out RCW Employment and licensing. … (3) The following information held by any public agency in personnel records, public employment related records, volunteer rosters, or included in any mailing list of employees or volunteers of any public agency: Residential addresses, residential telephone numbers, personal wireless telephone numbers, personal electronic mail addresses, social security numbers, driver's license numbers, identicard numbers, and emergency contact information of employees or volunteers of a public agency, and the names, dates of birth, residential addresses, residential telephone numbers, personal wireless telephone numbers, personal electronic mail addresses, social security numbers, and emergency contact information of dependents of employees or volunteers of a public agency. For purposes of this subsection, "employees" includes independent provider home care workers as defined in RCW 74.39A.240; 74.39A.240 … (5) Investigative records compiled by an employing agency conducting an active and ongoing investigation of a possible unfair practice under chapter RCW or of a possible violation of other federal, state, or local laws prohibiting discrimination in employment;

Enforcement & Penalties PRA enforced by courts. Up to $100 for each day at least one record was withheld A court can impose civil penalties. A court will award requester’s attorneys fees and costs. The agency has the burden of proof to demonstrate to a court that public records were lawfully denied 21

University resources /admin/rules/policies/APS/ html /admin/rules/policies/APS/ html m/recmgt/retentionschedul es/gs/general m/recmgt/retentionschedul es/gs/general /default.aspx?cite= &full=truehttp://apps.leg.wa.gov/WAC /default.aspx?cite= &full=true 22

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