1. Introduction to the Public Records Act
Or… A 20,000 View of a Landscape that is Constantly Evolving….

2. RCW 42.56 1972 Initiative for Open Government We the People…
Do not yield our sovereignty to the agencies that serve us
Do not give our public servants the right to decide what is good for the people to know and what is not good for us to know
Insist on remaining informed
“[F]ree 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.”

3. What are Public Records
RCW (3) - any writing that is prepared, owned, used, or retained by any government agency, and which contains information that relates to the conduct of government, or the performance of any governmental or proprietary function.
“Writing” is broadly - includes not only traditional written records, but also photos, maps, videos, voic s, s, text messages and tweets (RCW (4)).

4. Warning – Narrow Road Ahead!
Exemptions and prohibitions are narrowly construed
provide the only basis for withholding public records.
Agencies cannot withhold records simply because release = embarrassment
generally cannot withhold records based solely upon the identity of the requester (RCW and RCW (3)).
Other laws may govern certain records or information - Progressive Animal Welfare Soc’y v. Univ. of Wash., 125 Wn.2d 243, 252, 884 P.2d 592 (1994)

5. Responding and Processing
Acknowledgement
Additional Time
Adequate Searches

6. General Considerations
Identity of requestor is irrelevant
Unless requestor is an inmate
PRA does not allow requestor to “indiscriminately sift” through agency’s files
Limstrom v. Ladenburg (Limstrom II), 136 Wn.2d 595, 963 P.2d 896 (1998)
Must give fair notice that it’s a request
Wood v. Lowe, 102 Wn. App. 7, 994 P.2d 857 (2000); Germeau v. Mason County, 166 Wn. App. 789, 271 P.2d 932 (2012).

7. General Considerations
No obligation to respond to a “request for information”
Bonamy v. City of Seattle, 92 Wn. App. 403, 960 P.2d 447 (1998); Beal v. City of Seattle, 150 Wn. App. 865, 209 P.3d 872 (2009); Hangartner v. City of Seattle, 151 Wn.2d 439, 90 P.3d 26 (2004) (must be a request for “identifiable” records);
No duty to create a record
Smith v. Okanogan County, 100 Wn. App. 7, 994 P.2d 857 (2000);

8. Acknowledgement Within 5 business days of receipt:
Allow inspection and/or copying;
Provide an internet address and link to the specific records requested on the agency’s website
If the individual does not have internet access, the agency must provide copies or allow the requester to view the records using an agency computer;
Acknowledge receipt and providing a reasonable estimate of the time necessary to respond; or
Deny the request; a written statement must set out the specific reasons for the denial.

9. Additional Time May be based upon the need to: Clarify the intent;
Locate and assemble the information requested;
Notify third parties or agencies affected by the request; or
Determine whether any of the information is exempt and whether a denial should be made as to all, or part, of the request.

10. Adequate Searches Must be:
Reasonably calculated to uncover all relevant documents
“reasonableness” dependent upon individual facts
No obligation to go outside agency’s own records
Except if public employees/officials use personal devices
Partially responsive documents are responsive
Adequacy and Reasonableness = determining factors for good v. bad faith

11. Redaction Logs Disclosure Exemptions Exemption Logs/Indexes
Brief Explanations

12. Disclosure Sanders v. State, 169 Wn.2d 827, 240 P.3d 120 (2010)
Records are either "disclosed" or "not disclosed.“
“Disclosed” - existence is revealed to the requester, regardless of whether it is produced
Disclosed records are either "produced" (made available for inspection and copying) or "withheld" (not produced).
Withholding a nonexempt document is "wrongful withholding" and violates the PRA
Document is never exempt from disclosure - only exempt from production. Agency must claim a "specific exemption," i.e., which exemption covers the document

13. Exemptions Categorical Conditional
Withheld in its entirety, e.g., active police investigation reports
Sargent v. Seattle Police Department, 179 Wn.2d 376, 314 P.3d 1093 (2013)
Conditional
Portions of the document withheld, i.e., redacted
Police investigation referred to prosecutor’s office

14. Exemption Logs/Indexes
Withholding record (in whole or part) requires
Citing to the specific exemption
Brief explanation as to how the exemption applies
1-year statute of limitations does not start until
Last production of records
Receipt of the exemption log

15. Exemption Logs/Indexes
PAWS v. University of Washington, 125 Wn.2d 243, 884 P.2d 592 (1994)
Response must include “specific means of identifying individual records.”
the type of record,
its date,
number of pages,
and unless otherwise protected, the author and recipient,
or if protected, other means of sufficient disclosure identification without disclosing protected content

16. Brief Explanation
Identifying the redacted information and citing to authority is insufficient
City of Lakewood v. Koenig, 176 Wn. App. 397 (2013)
“Driver's License number has been redacted pursuant to RCW and RCW ”
“plain language” of the statute “mandated” awarding costs/attorneys fees

17. Emerging Issues
Public Records on Personal Devices
Penalties

18. Personal Devices
O’Neill v. City of Shoreline, 170 Wn.2d 138, 240 P.3d 1149 (2010)
agency s on personal computers must be produced
Tiberino v. Spokane County, Office of the Prosecuting Attorney, 103 Wn. App. 680, 13 P.3d 1104 (2000)
“purely personal” s not relating to the conduct of government need not be produced
However, “header” must be produced

19. Personal Devices
Nissen v. Pierce County, 183 Wn.2d 863, 343 P.3d 759 (2015)
“[T]ext messages sent and received by a public employee in the employee's official capacity are public records of the employer, even if the employee uses a private cell phone…”
Employee responsible for searching devices and providing “nonconclusory, reasonably detailed affidavits” attesting nature/extent of the search

20. Penalties
RCW (4)
In addition to costs/attorneys fees – court discretion to impose penalties up to $100/day denied right to record
Yousoufian v. Office of Ron Sims, 168 Wn.2d 444 (2010)
Aggravating/Mitigating Factors, e.g.,
Employee training
Strict compliance with statute
Response time
Actual losses by requestor
Reasonableness of explanations

21. Penalties
Wade’s Eastside Gun Shop v. Dep’t of Labor and Industries, 185 Wn.2d 270, 372 P.3d 97 (2016)
L&I wrongfully withheld investigation documents, trial court imposed per page penalty
Held: Trial court did not abuse discretion
Somewhat of a departure from past practice
E.g., Sanders – penalties based upon “grouped” documents

22. Final Thoughts Large, convoluted request increases complexity
Frequent requestors
Spam/Junk Mail – Autobot requests
State legislature/court exempt from PRA
PRA “biased” against government

23. Thank You! Kristina Nelson-Gross City of Sequim, City Attorney