1. Public Records Act Public Disclosure Training 1 2014 Presented by: Jerome Wilen Public Disclosure Manager 206-787-4141

2. What is Public Disclosure and How Does it Affect Me? 2 “What is public disclosure?”

3. Agenda 3 1.What is the Public Records Act? 2.What is a Public Record? 3.Public Records Request vs. Request for Information 4.Port Employees Legal Obligations and Duties 5.Penalties

4. Overview 4 The Public Records Act (PRA) is found under Chapter RCW 42.56 (Revised Code of Washington) - formally Chapter 42.17 – Amended July 1, 2006) The PRA was passed by initiative 276 on November 7, 1972 by 72 percent of the popular vote. All records of a government agency are presumed to be subject to disclosure. Government agencies MUST respond promptly and provide the FULLEST assistance to the requestor.

5. Overview (continued) 5 The Port receives an average of over 300 public disclosure requests per year Some of the most common requests are for environmental documents, lease agreements, staff email and Surveillance video involving incidents at Sea-Tac Airport. All records of a government agency are presumed to be subject to disclosure.

6. Purpose 6 Public Disclosure and Democracy The PRA rests on the important principle that open and transparent government is essential to representative democracy. The PRA states: “The people of this state do not yield their sovereignty to the agencies that serve them.” “The people insist on remaining informed.” “This chapter shall be liberally construed and its exemptions narrowly construed to promote this public policy and to assure that the public interest will be fully protected.” The intent of the law is to keep government accountable to the people it serves.

7. What is a Public Record? 7 RCW 42.56.010(2) Any “writing” relating to the conduct of government or the performance of any governmental or proprietary function that is prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics. (e.g., A personal email sent from your Port of Seattle email account may be subject to public disclosure.)

8. What is a Public Disclosure Request? 8 A Public Disclosure Request can come in any form: Through the Port of Seattle website Via email Through a letter Over the phone (The Port’s policy requires a request to be in writing) Fax The request should contain reasonable notice that it is a public disclosure request. Some common request terms that would provide reasonable notice: Public record Public disclosure FOIA or Freedom of Information Act Official request

9. Public Disclosure Request vs. Request for Information 9 Public Disclosure Requests must be for an identifiable record. A request for information in general is not a public disclosure request.

10. Public Disclosure Request vs. Request for Information 10 The Port is not required to conduct legal research for a requestor. There is no duty to create a record in order to respond to a request. The Port must only provide access to public records in existence at the time of the request. There is no duty to supplement responses with future created records. The Port cannot deny a request because it is “overly broad.” If a request is unclear, the Public Disclosure Office will seek clarification. *WAC44-14-04003 (Washington Administrative Code)…sometimes it is easier…to create a record responsive to the request …or find itself in a controversy about whether the request requires the creation of a new record. The decision to create a new record is left to the discretion of the agency.

11. Who Makes Requests? 11 ANYONE can request records under the PRA. Attorneys Inmates Media Port Employees Public Government agencies are not permitted to distinguish among requestors. Requestors do not have to explain or provide a reason for requesting records.

12. Legal Obligations 12 The Public Records Act Requires Broad Disclosure The PRA requires that agencies provide access to public records to the FULLEST extent possible. All public records are presumed disclosable. A government agency must have a specific legal exemption (RCW or Federal statute) in order to withhold any portion of a record.

13. Legal Obligations (continued) 13 Some of the most common redactions involve Attorney- Client Privilege, personnel and sensitive security information. “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)

14. Legal Obligations (continued) 14 Under the Public Records Act (Chapter RCW 42.56.520), the Port must respond within five business days by doing either of the following: 1.Acknowledge receipt of the request and provide a reasonable estimate for a further response; 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); or 4. Seek clarification; or, 5. Deny the request with an accompanying written statement of the specific reasons.

15. Duties Under the Public Records Act 15 What are my obligations? Under the Ethics in Public Service Act “no state officer or state employee may intentionally conceal a record if the officer or employee knew the record was required to be released” – RCW 42.52.050. “Every officer who shall mutilate, destroy, conceal, erase, obliterate, or falsify any record or paper appertaining to the officer's office…is guilty of a class B felony and shall be punished by imprisonment in a state correctional facility for not more than ten years, or by a fine of not more than five thousand dollars, or by both.” – RCW 40.16.020

16. Duties Under the Public Records Act 16 August 2012: Selah City Supervisor Frank Sweet arrested on theft charges. Photo courtesy of KIMATV.com

17. Duties Under the Public Records Act 17 Update: Frank Sweet is Now A Convicted Felon! Sweet plead guilty in Yakima County Court on January 27, 2014 to damaging public records…his felony conviction now prevents him from working as a city manager ever again. The court ordered Sweet to pay $65,474 in restitution.

18. Your Duties (Port employee) Under the PRA 18 All Port of Seattle employees are expected to fully comply with the Public Records Act. Employees must search for and provide public records when requested. The Port of Seattle could receive a request asking for records regarding or involving you! It is important for you to understand what information must be released and can be withheld. What are my obligations as a Port of Seattle Employee?

19. Penalties 19 Common reasons penalties are awarded. Inadequate search resulting in records not being produced. Improper claim of exemption for the legal basis a record was redacted or withheld. Inadequate explanation of the legal basis for redaction or withholding of a record. Missed deadlines.

20. Penalties (continued) 20 RCW 42.56.550 Under the PRA, agencies have the burden to prove compliance. If an agency is found to have violated the Act, penalties, attorney fees, and costs can be mandatory. The PRA demands strict compliance! Even accidental or good faith mistakes can cost the Port of Seattle (and taxpayers) money in penalties, fees, and awards. Penalty amounts are assessed at the Court’s discretion in any amount, up to $100 per day, for each day the requestor was denied their right to a record. The penalty period can include lengthy time spent in the court process and can be awarded for each record or, in some cases, each page of a record that was not provided.

21. Penalties (continued) 21 September 11, 2013: University of Washington hit with $723,000 fine for withholding records in a bias case – largest public records fine is state of Washington History.  A King County Superior Court judge ruled the 12,000 pages of public records might have helped the case of a female professor who sued after being denied tenure. September 4, 2014: Snohomish County to pay $575,000 in public-records lawsuit.  The county did not admit fault, but finalized an agreement with the requestor which sued in March 2013 alleging the county violated the state Public Records Act by failing to respond to four of its records requests in a timely manner. County prosecutors say the group had submitted more than 275 records requests.

22. Receiving Requests 22 Public Disclosure Requests should be submitted directly to the Public Disclosure Office. Email:public-disclosure@portseattle.org Phone:(206) 787-4141 If you receive a public disclosure request, you should immediately send it to the Public Disclosure Office.

23. Public Disclosure Process 23 There are several steps in the public disclosure process. The entire process is outlined in our policy and procedures documents. EX-19 Policy Access to Port Public Records Requests for Port Records – Procedures

24. Public Disclosure Process 24 Your role in responding to public disclosure requests. Ensure you understand what is being asked for. If you don’t understand, get clarification from the Public Disclosure Office. Carefully read the email you receive regarding what records are being requested. Pay attention to the date range of the records being requested. Don’t be afraid to ask questions! Comply with deadlines. If you are unable to do so, communicate with the Public Disclosure Office to determine a reasonable response time.

25. Public Disclosure Process 25 Search ALL locations. Failure to conduct an adequate search violates the PRA and subjects the Port of Seattle to potential penalties. If the Port of Seattle is sued over a response, you may be called on to account for the thoroughness of your search. Provide a copy of all responsive records to the Public Disclosure Office in the format requested. If you are in doubt, turn it over anyway. Share any concerns you may have about the release of the records with the Public Disclosure Office. Even if the record will be withheld based on a legal authority, the record must be identified to the requester and the basis for exemption must be explained.

26. Tips to Assist in PRA Compliance 26 Keep Port of Seattle business on Port-issued computers and devices. Keep personal matters on personal computers and personal devices. Always keep your communications respectful and professional. If you do not want to read it in the news, do not put it in writing! As public employees, public disclosure is part of our jobs. Follow records retention guidelines. Eliminating unnecessary records enables you to locate responsive records more quickly. HOWEVER, once a public records request is received, records cannot be destroyed, even if the retention period has expired. Ask the Public Disclosure Office if you have any questions about the PRA or the public disclosure process.

27. Review Time! 27 If you don’t understand what records you are being asked to search for you should:  Try your best  Hand over everything  Ask for clarification  Ignore the request

28. Correct! 28 Correct!

29. Review Time! 29 The Port only has liability under the Public Records Act when:  Deadlines are missed  A responsive record was not provided  An inadequate search was performed  All of the above

30. Correct! 30 Correct!

31. Review Time! 31 In response to a public disclosure request I must search:  My email  My computer  Everywhere responsive records may be located  My hard copy files

32. Correct! 32 Correct!

33. Review Time! 33 The Port of Seattle can withhold records from a requestor when:  The records are embarrassing in nature  A specific legal exemption applies  We don’t want to release them  They are damaging to our reputation

34. Correct! 34 Correct!

35. Review Time! 35 The Public Records Act was created to:  Distract us from our “real work”  Keep government accountable  Harass public employees  Make lawyers happy

36. Correct! 36 Correct!

37. Review Time! 37 When asked to search for records you should tell the Public Disclosure Office when:  You have no responsive records  You have located responsive records  You think someone else may have records  All of the above

38. Correct! 38 Correct!

39. Review Time! 39 Which of the following is not a public record:  An email from your personal email to a co-worker’s Port of Seattle email with a copy of a presentation for an upcoming meeting.  An email from your personal email to a friend’s personal email about the birthday party you are planning.  An email from your Port of Seattle email to your spouse asking what’s for dinner.  An email from your Port of Seattle email to another Port of Seattle email discussing a project.

40. Correct! 40 Correct!

41. Review Time! 41 When you receive an email from the Public Disclosure Office requesting records you should:  Ignore it.  Reply that you’re sure you don’t have records even though you haven’t searched.  Start deleting embarrassing email.  Thoroughly search for and provide the records to the Public Disclosure Office by the due date given.

42. Correct! 42 Correct!

43. Review Time! 43 Which of the following is not a public disclosure request:  An email asking why the Port of Seattle has so many different programs.  A letter asking for a copy of the Port of Seattle’s Public Disclosure Policy.  A phone call asking for all Port of Seattle email from 2012 that mentions the color blue.  An email asking for a copy of a contract.

44. Correct! 44 Correct!

45. Review Time! 45 If you receive a public disclosure request directly you should:  Respond to the request immediately.  Contact the Public Disclosure Office immediately.  Ignore it.  Let the Public Disclosure Office know within the next week or two.

46. Correct! 46 Correct!

47. Review Time! 47 If the Port is found to have violated the PRA it can lead to:  Penalties, attorney’s fees and court costs.  A damaged reputation and loss of public trust.  An increase in public disclosure requests.  All of the above.

48. Correct! 48 Correct!

49. Review Time! 49 When searching for records you should always rely on:  Your memory, which is like a steel trap.  Outlook’s search functions.  Searching all locations (hard drives, flash drives, files, etc.)  The contents of your recycle bin.

50. Correct! 50 Correct!

51. 2014 Resources Chapter RCW 42.56 Attorney General Model Rules EX-19 Policy Port Pubic Disclosure Procedure Prepared by: Jerome Wilen Public Disclosure Manager 206-787-4141 Thank you! 51

52. 52 Sorry. Try Again!