1. Washington State Attorney General’s Office April 2010 Timothy D. Ford Open Government Ombudsman Assistant Attorney General for Government Accountability

2.  Ombudsman Position Created by AG Rob McKenna  Provides Assistance to the Public and Agencies  Training on Compliance with the Public Records Act and Open Public Meetings Act  Provides Informal Advice Letters interpreting those Laws  Advocates for Greater Transparency and Governmental Accountability  Promotes Legislative Reform & serves on the Sunshine Committee  Contact info: timf@atg.wa.gov or (360) 586-4802timf@atg.wa.gov 2

3. Learn and Discuss the following: 1. Purpose & history of the Public Records Act 2. What is a “public record”? 3. General agency obligations under the PRA 4. Valid requests and agency initial responses 5. Exemptions and how they apply 6. Managing disclosure, fees 7. Review of denials and agency liability 8. Attorney General’s model rules 9. Recent case law & legislative updates 10. Tips and Resources 3

4.  The People do not yield their sovereignty to the agencies which serve them.  They do not give public servants the right to decide what is good for the people to know and what is not good for them to know.  Remain informed so they may maintain control over the instruments they have created. 4

5.  Passed in 1972 as part of Public Disclosure Initiative (I-276) with a voter approval of 72%  All public records must be disclosed unless there is a statutory exemption  Only 10 exemptions in I-276; now over 300 exemptions exist throughout RCW’s 5

6. RCW 42.456.010(2): 1. Any writing 2. which contains information relating to the conduct of government or the performance of any governmental or propriety function 3. prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics. Concerned Ratepayers Ass’n v. PUD No. 1, 138 Wn.2d 950 (1999). 6

7.  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. 7

8.  Paper records, photos, videos, emails, other electronic records  O’Neill v. City of Shoreline, 145 Wn. App. 913 (2008). (accepted for review by Supremes)  Personal email account  “Metadata” specifically requested  Retention and a “thorough search”  Records have a “basic character”  AGO 1980 No. 1; See also, Lindeman v. Kelso School Dist. No. 458, 162 Wn.2d 196 (2007). 8

9.  Appoint a public records officer with responsibility to:  Be a point of contact for the public  Ensure an agency’s compliance with the PRA  May be a public records officer from another agency  Name and contact information must be published:  State agencies – in State Register with Code Reviser  Local agencies – in a way reasonably calculated to provide notice to the public (including place of business, internet, and other publications) 9

10.  Duty to Publish – RCW 42.56.040  Describe agency organization  Agency operations, procedures  Procedural and substantive rules  How to submit requests for information and copies  A person may not be “adversely affected” or required to resort to a matter (required to be published) that is not published 10

11.  Records must be available for inspection and copying during customary business hours  Agencies shall adopt reasonable rules to:  Provide full public access to public records  Protect public records from damage or disorganization  Prevent excessive interference with other essential functions  Provide fullest assistance to requester, and most timely possible action  Parmelee v. Clarke, 147 Wn. App. 1035 (2009) 11

12.  Provide an index of agency records  Final adjudication orders  Adopted policies and interpretations  Administrative manuals and instructions  Planning policies, goals, and decisions  Factual reports and studies  Agency determinations of rights and responsibilities  Local government may waive index requirement if unduly burdensome 12

13.  No official format for a valid request. Hangartner v. City of Seattle, 151 Wn.2d 439 (2004). Agency forms should be encouraged, but are not required.  Request must be for “identifiable” records  Not a request for general information. Bonamy v. City of Seattle, 92 Wn. App. 403, 410 (1998)  No duty to create records. Smith v. Okanogan County, 100 Wn. App. 7, 14 (2000)  AG’s Model Rules: Identifiable = “reasonably locate”. WAC 44-14-04002  Agencies may not distinguish between requesters, or require the purpose of a request  Exception: An agency is prohibited from disclosing lists of individuals for commercial purposes. See AGO 1975 No 15 13

14. Within five (5) business days an agency must: 1. Provide the record(s), or 2. Acknowledge receipt of request and provide reasonable estimate of response time, or 3. Deny the request and explain why, or 4. Seek clarification. 14

15.  Time to fully respond to request.  Assemble and review records An agency must conduct an objectively reasonable search for responsive records. WAC 44-14-04003(9)  Notify Third Parties Notice should be provided early, only if arguably exempt, and specify a date for disclosure. WAC 44-14-04003(11)  Redact exempt information For electronic records such as data bases, an agency can sometimes redact a field of exempt information by excluding it from the set of fields to be copied. WAC 44-14-04004(4)(b)(i)  Create a withholding index. WAC 44-14-04004(4)(b)(ii)  “An agency should not use the same estimate for every request”. WAC 44-14-04003(6)  Based on complexity and number of requests, agency resources, and other agency essential functions. 15

16.  “[A]n agency should briefly explain to the requestor the basis for the estimate in the initial response”. WAC 44-14- 04003(6).  Explain the need to revise an estimate. Routine extensions with little or no action show that previous estimates probably were not “reasonable”. WAC 44-14-04003(6)  Violante v. King County Fire Dist. No 20, 114 Wn. App. 565 (2002). Request for a copy of 2001 budget.  1st request (4/18/2001) - ignored.  2nd request (4/27/2001) - 14 day estimate for production.  3rd request (5/18/2001) - $$ amount provided, no budget.  4th request (5/25/2001) - No response.  Lawsuit filed (6/21/2001) - Disclosure (8/3/2001) Viewed objectively the lawsuit was necessary to obtain records. Plaintiff awarded costs and penalties for delay. 16

17.  Based on a statutory exemption. Agencies must provide a withholding log  Construe exemptions narrowly  Redact exempt information and disclose non- exempt information  Exemptions exist in the PRA and other laws  If a conflict exists between the PRA and any other law, the PRA shall govern 17

18.  Personal information in files maintained for clients of public institutions. RCW 42.56.230(1).  Personal information in files maintained for employees, if private. RCW 42.56.230(2).  Preliminary drafts or recommendations in which opinions are expressed or policies formulated  Attorney advice or work. (Peanut allergy case)  Other exemptions in law (FERPA, Trade Secrets Act, HIPAA & health care information, etc.) 18

19.  No general privacy exemption. See AGO 1988 No 12  Privacy must be incorporated into an element of a specific exemption. For example: Personal information in files maintained for employees, if private. RCW 42.56.230(2).  Privacy is invaded if disclosure is 1) Highly offensive to a reasonable person; AND 2) not of legitimate concern to the public. RCW 42.56.255.  Tiberino v. Spokane County, 103 Wn. App. 680 (2000)  Excessive personal emails - employee discharged  Emails an exhibit for legal defense in lawsuit  Email usage a public record but exempt (violates privacy)  Check your agency computer/email policy!  Dawson v. Daly, 120 Wn.2d 782 (1993) Performance evaluations, with no misconduct, are private 19

20.  Rental Housing Association of Puget Sound v. City of Des Moines, 165 Wn.2d 525 (2009).  Log allows requester to make a “threshold determination” of whether the claimed exemption is proper  Log should identify: type of record, date, pages, author, recipients, statutory exemption and brief explanation. WAC 44-14-04004(4)(b)(ii)  No log? – Statute of Limitation unenforceable 20

21.  Records must be available during customary business hours  Zink v. City of Mesa, 140 Wn. App. 328 (2007)  City of Mesa – Population of 440  172 requests over 2.5 years; City limited its hours  Administrative difficulty does not excuse strict compliance  Copies may be provided in batches  10% Deposit may be charged for copy costs  AG’s Model Rules:  Document compliance in a closing letter and retain copies provided. WAC 44-14-04006 21

22.  Agencies should develop, store, manage, and make public records widely available electronically. RCW 43.105.250.  Agencies should provide electronic records in an electronic format when requested. Use a commercially available format or translatable format. WAC 44-14-05001; Mechling v. City of Monroe, 152 Wn. App. 830, 849 (2009).  An agency may charge for electronic copies but costs are de-minimus. Actual staff time for scanning may be charged if determined pursuant to RCW 42.56.070(7).  Agencies are encouraged to send a scanning/copying project to an outside vendor if quicker and less expensive. WAC 44-14-07001(5)  Moore v. DOC 22

23.  No inspection or search fees  Copying fees may not exceed 15 cents per page unless an agency determines its actual costs. Actual costs are directly related to copying and shipping and may include staff time  Electronic copies cost practically nothing  Scanning paper copies into electronic copies is an actual cost to an agency for its staff time  AG’s Model Rules: Agencies are encouraged to compare their scanning and other copying charges to the rates of outside vendors. WAC 44-14-07003 23

24.  Retain records until request is resolved. RCW 42.56.100  Agencies shall review denials, and review is deemed complete after two business days. RCW 42.56.520  Attorney General shall provide opinion of state agency denials when requested. RCW 42.56.530  AG Open Government Ombudsman provides technical assistance to public for access to public records and meetings  Citizen lawsuit may be filed in court within 1 year of denial or last production. RCW 42.56.550 24

25.  Agency has the burden of proof. Payment of court costs and attorney fees. RCW 42.56.550.  Payment of mandatory penalties:  $5 to $100 a day for each day the record inspection was delayed or denied  Yousoufian v. King County, 165 Wn.2d 439 (2009) (withdrawn)  Factors which “may” determine penalty range include:  Clarity of request and an agency follow-up  Training and supervisions of personnel  Agency systems to track and retrieve records  Strict compliance with PRA procedural requirements  Reasonableness of explanation 25

26.  Mechling v. City of Monroe, 152 Wn. App. 830, 849 (2009). “Consistent with the statutory duty to provide the fullest assistance and the model rules...”. Remand to determine if it is reasonable and feasible to provide copies in an electronic format. WAC 44-14-05001.  Koenig v. Pierce County, 151 Wn. App. 221, 223 (2009). Model rules are nonbinding, and the PRA does not require an agency to coordinate across departmental lines. WAC 44-14-01001.  Beal v. City of Seattle, 150 Wn. App. 865, 874-875 (2009) AG’s rules are non-binding but contain persuasive reasoning. WAC 44-14-03006 (Requestors are strongly encouraged to make written requests). 26

27.  Rental Housing Association of Puget Sound v. City of Des Moines, 165 Wn.2d 525, 539 (2009) (Attorney General’s model rules require an agency to create a withholding index or privilege log when claiming an exemption from disclosure. WAC 44-14-04004(4)(b)(ii).)  Soter v. Cowles, 162 Wn.2d 716, 753-754 (2007) (The Attorney General's model rules on public disclosure explain that agencies can seek injunctive relief. WAC 44-14- 08004(5)(c).) 27

28.  RCW 42.56.565 (Inmate requests)  made to harass or intimidate the agency or its employees;  likely threaten the security of correctional facilities;  likely threaten the safety or security of staff, inmates, family members of staff, family members of other inmates, or any other person; OR  may assist criminal activity.  HB 1317 (Exempting photos and dates of birth for criminal justice agency workers)  SB 6367 (Disclosure by link to agency website)  SB 5295 (Sunshine committee recommendations)  HB 2736 (Establishing an Office of Open Records) 28

29.  Public trust damaged; more requests are filed  Newspaper publishes critical article  Careers damaged  Taxpayers pay attorney fees, costs, and penalties  Municipal bankruptcy? 29

30.  Annual training for personnel with public records related job duties (Not required, but a good idea)  Right Attitude:  The people are sovereign and agencies are the servants.  “Fullest assistance” reduces hostility  When in doubt – Disclose!  Agencies may waive certain exemptions  No liability for “good faith” disclosures  Beware – Newspapers buy ink by the barrel  Ask the Ombudsman 30

31.  AG’s Open Government Ombudsman  timf@atg.wa.gov (360) 586-4802 timf@atg.wa.gov  Municipal Research & Services Corp.  www.mrsc.org (206) 625-1300 www.mrsc.org  Model Rules on Public Disclosure  www.atg.wa.gov/ModelRules.aspx www.atg.wa.gov/ModelRules.aspx  Secretary of State (retention of records)  www.secstate.wa.gov/archives/RecordsManagement / www.secstate.wa.gov/archives/RecordsManagement / 31

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