OPEN PUBLIC RECORDS

1. OPEN PUBLIC RECORDS ~ Washington State Attorney General’s Office May 2009 Timothy D. Ford Open Government Ombudsman

2. Open Government Ombudsman • Ombudsman Position Created by 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 Laws • Advocates for Greater Transparency and Governmental Accountability • Promotes Legislative Reform & serves on the Sunshine Committee

3. PUBLIC RECORDS ACT It’s Purpose: • 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. OPEN PUBLIC RECORDS LAW • Passed in 1972 as part of Public Disclosure Initiative (I-276) • 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 • Codified in Ch 42.56 RCW

5. 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. “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. “Public Records” include: • Paper records, photos, videos, emails, other electronic records • Meta-data: “data about data” O’Neill v. City of Shoreline, 145 Wn. App. 913 (2008) • 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. AGENCY 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. AGENCY OBLIGATIONS • 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. AGENCY OBLIGATIONS • 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. AGENCY OBLIGATIONS • Provide an index of agency records • 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 • Index may be waived if unduly burdensome

12. REQUESTS FOR RECORDS • No official format for a valid request. Use of agency forms should be encouraged, but are not required. • Records requested must be “identifiable” • 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. PROMPT RESPONSE • Within five (5) business days an agency must: • Provide the record, or • Acknowledge receipt of request and provide reasonable estimate of response time, or • Seek clarification, or • Deny the request and explain why.

14. “REASONABLE” ESTIMATE • Based on complexity and number of requests, agency resources, and other agency essential functions • Revise an estimate when necessary, but repeated revisions may be “unreasonable” • Never use a template for estimates • Third party notice – Undue delay

15. COPYING FEES • No inspection fee • No search fee • 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

16. INSPECTION & COPIES • 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 inspections • Administrative difficulty does not excuse strict compliance • Copies may be provided in batches • 10% Deposit • Electronic copies (Moore v. DOC)

17. DENIALS AND REDACTIONS • Must be based on a statutory exemption • Construe exemptions narrowly • Exemptions of other statutes are incorporated into the PRA • If a conflict exists between the PRA and any other law, the PRA shall govern • Delete exempt information and disclose non-exempt information

18. 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 • Attorney General’s Model Rules are persuasive authority

19. 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.)

20. PRIVACY • No general privacy exemption. Privacy is invaded if disclosure is 1) Highly offensive to a reasonable person; AND 2) is not of legitimate concern to the public. • Tiberino v. Spokane County, 103 Wn. App. 680 (2000) • Personal emails - employee discharge & subsequent litigation • Emails an exhibit for legal defense • Email usage is a public record but exempt (would violate privacy) • Check your agency computer/email policy! • Dawson v. Daly, 120 Wn.2d 782 (1993) • Disclosure of performance evaluations, with no instances of misconduct, violates privacy

21. REVIEW OF DENIALS • Retain records until request is resolved. RCW 42.56.100 • Agencies shall review denials. 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

22. 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) • Factors determining 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

23. CONSEQUENCES OF IMPROPER DENIAL • Public trust damaged • Lots more record requests are filed • Newspaper publishes critical article • Careers damaged

24. Inadvertent Disclosure of Exempt Materials • Sitterson v. Evergreen School Dist. No. 114, 147 Wn. App. 576 (2008) • Attorney disclosed advice letters with 439 documents in discovery. Letters used 3 years later as exhibit for trial. • District objected to admission of letters; Claimed attorney client privilege. • Attorney client privilege may be waived (usually by client). • Five Part test for waiver: 1) precautions taken to prevent disclosure; 2) time taken to remedy error; 3) scope of discovery; 4) extent of disclosure; and 5) fairness. • Lindeman case: Parents permitted to view video prior to District’s claim of exemption

25. Tips • Training  (Not required, but a good idea) • Agencies may waive certain exemptions • No liability for “good faith” disclosures • “Fullest assistance” reduces hostility • Newspapers buy ink by the barrel • Ask the Ombudsman • The people are sovereign and agencies are the servants. Accountability goes up and the “blame” flows down.

26. 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. Questions?