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OPEN PUBLIC RECORDS

OPEN PUBLIC RECORDS. Washington State Attorney General’s Office February 2010 Timothy D. Ford Open Government Ombudsman Assistant Attorney General for Government Accountability. What is an Open Government Ombudsman?. Ombudsman Position Created by AG Rob McKenna

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OPEN PUBLIC RECORDS

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  1. OPEN PUBLIC RECORDS Washington State Attorney General’s Office February 2010 Timothy D. Ford Open Government Ombudsman Assistant Attorney General for Government Accountability

  2. What is an Open Government Ombudsman? • 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) 586-4802

  3. What are the Training Objectives? Learn and Discuss the following: • Purpose & history of the Public Records Act • What is a “public record” & electronic record? • General agency obligations under the PRA • How to initially respond to a records request • What are exemptions and how do they apply? • How to fulfill a records request & charge fees • Review of denials and agency liability • Attorney General’s model rules • Recent case law • Tips and Resources 3

  4. What’s the Purpose of the Public Records Act? • 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. What is the History of the Public Records Act? • 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. What is a public record? • “Any writing which contains information relating to the conduct of government or the performance of any governmental or propriety function” • “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. “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. 7

  8. “Public Records” include: • 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. What are an Agency’s General Obligations? • 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. General Obligations Continued • 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. General Obligations Continued • 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. General Obligations Continued • 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. What is a valid request for public records? • 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. How Should An Agency Initially Respond? Within five (5) business days an agency must: • Provide the record(s), or • Acknowledge receipt of request and provide reasonable estimate of response time, or • Deny the request and explain why, or • Seek clarification. 14

  15. What is a “Reasonable” Estimate? • Time to fully respond to request. • Assemble and review records • Notify Third Parties • AG’s Model Rules: Notice should be provided early, only if arguably exempt, and specify a date for disclosure. WAC 44-14-04003(11) • Redact exempt information • Create a withholding index • Never use a template. Based on complexity and number of requests, agency resources, and other agency essential functions. • AG’s Model Rules: 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) 15

  16. When Can Records Be Withheld? • 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 16

  17. What records are exempt? • 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.) 17

  18. Is There A “Privacy” Exemption? • 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 18

  19. What Is A Valid Exemption Log? • 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. • No log? – Statute of Limitation unenforceable • AG’s Model Rules are persuasive authority 19

  20. How To Fulfill A Records Request • 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 20

  21. How To Fulfill A Request For Electronic Records • Agencies should develop, store, manage, and make public records widely available electronically. RCW 43.105.250. • AG’s Model Rules: Agencies should provide electronic records in an electronic format when requested. Use a commercially available format or translatable format. WAC 44-14-05001 • 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 21

  22. What Fees May be Charged? • 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 22

  23. REVIEW OF DENIALS • 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 23

  24. AGENCY LIABILITY • 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 24

  25. CONSEQUENCES OF IMPROPER DENIAL • Public trust damaged • Lots more record requests are filed • Newspaper publishes critical article • Careers damaged • Taxpayers pay attorney fees, costs, and penalties 25

  26. Tips • 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 26

  27. RESOURCES • AG’s Open Government Ombudsman • timf@atg.wa.gov (360) 586-4802 • Municipal Research & Services Corp. • www.mrsc.org (206) 625-1300 • Model Rules on Public Disclosure • www.atg.wa.gov/ModelRules.aspx • Secretary of State (retention of records) • www.secstate.wa.gov/archives/RecordsManagement/ 27

  28. Questions? 28

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