OPEN PUBLIC RECORDS

Washington State

Attorney General’s Office

March 2013

Timothy D. Ford

Open Government Ombudsman

Assistant Attorney General for Government Accountability

WHAT IS AN OPEN GOVERNMENT OMBUDSMAN?

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

2

TRAINING OBJECTIVES

Learn and Discuss the following:1. History & Purpose of the Public Records Act2. General Agency Obligations under the PRA3. Construing the PRA4. What is a “public record”? 5. Valid requests, Managing Resources, & Initial responses6. Exemptions and how they apply7. Legislative updates8. Electronic records and disclosure9. Fees an Agency may charge10. Agency and Employee Liability11. Attorney General’s model rules12. Case law updates13. Tips & Resources

3

HISTORY OF THE PUBLIC RECORDS ACT

Early 70’s spirit of government reform Government operating in secrecy Influence of money on campaigns and elected officials

Initiative 276 Sponsored by original “Coalition for Open Government” Passed by 72% vote in 1972 Contained 10 exemptions from disclosure

Codified as Public Disclosure Act, RCW 42.17 Campaign finance, lobbyist, and records disclosure Public Disclosure Commission for enforcement Public Records Act, RCW 42.56, spun off in 2006

Key to citizens holding government accountable

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.

5

GENERAL OBLIGATIONS UNDER THE PRA

Agencies shall appoint a public records officer. RCW 42.56.580

Duty to Publish – Name & contact info of public records officer. RCW

42.56.580. How to submit requests for information. RCW 42.56.040. Agency organization, rules, and procedures. RCW

42.56.040. Index of specified categories of records. RCW 42.56.070. Customary business hours posted on website. RCW

42.56.090.

Records shall be available for inspection and copying during customary business hours. RCW 42.56.090.

6

GENERAL OBLIGATIONS CONTINUED

Agencies shall adopt reasonable rules. RCW 42.56.100.

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)

7

WHAT IS A PUBLIC RECORD?

RCW 42.56.010(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).

8

“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.

9

SOCIAL MEDIA AND RECORDS

WHAT IS A VALID REQUEST?

Request must be for “identifiable” records Not a request for general information. There must be a

reasonable description of the record. 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)

A request must have sufficient clarity to give the agency “fair notice” that it has received a PRA request. Germeau v. Mason County.

An “identifiable record” is one that agency staff can reasonably locate. WAC 44-14-04002.

Agency forms should be encouraged, but are not required. “No official format for a valid request”. Hangartner v. City of Seattle, 151 Wn.2d 439 (2004).

Must not deny overbroad requests. RCW 42.56.080 . 11

WHEN CAN I GET MY RECORDS?!!

12

HOW SHOULD AN AGENCY INITIALLY RESPOND?

Within five (5) business days an agency must:

1. Provide the record(s)**, or

2. Acknowledge receipt and provide a reasonable estimate of response time, or

Reasonable estimate should be based on complexity and number of requests, agency resources, and other essential functions.

3. Deny the request and explain why, or

4. Seek clarification.

** You may also fulfill disclosure by providing an internet address and link to the agency website. RCW 42.56.520.

Failure to acknowledge a request in 5 days is a violation of the PRA. West v. DNR (filed August 2011).

13

WHAT IS A “REASONABLE” ESTIMATE?

The time required to fully respond. WAC 44-14-04003(6).

1. Assemble and review records “An agency must conduct an objectively reasonable search for

responsive records”. WAC 44-14-04003(9).

2. Notice to persons named in the record Notice should be provided early, only if arguably exempt, and specify a

date for disclosure. WAC 44-14-04003(11). The requester has an interest in any legal action to prevent disclosure

of the requested records. WAC 44-14-04003(11). The agency's notice should inform the third party that he or she should

name the requestor as a party to any action to enjoin disclosure. Burt v. Dept. of Corr., 168 Wn.2d 828 (2010)

3. 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).

4. Create a withholding index. WAC 44-14-04004(4)(b)(ii).14

“REASONABLE” ESTIMATES Based on complexity and number of requests, agency

resources, and other agency essential functions.

“An agency should not use the same estimate for every request”. WAC 44-14-04003(6).

“An agency should briefly explain to the requestor the basis for the estimate in the initial response”. WAC 44-14-04003(6).

“Extended estimates are appropriate when the circumstances have changed”. 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).

15

REASONABLE ESTIMATE CONTINUED

“Unjustified failure to provide the record by the expiration of the estimate is a denial of access to the record”. WAC 44-14-04003(10). But see Forbes v. City of Gold Bar, 171 Wn. App. 857 (2012).

Failure to acknowledge a request for records within five business days constitutes a violation of the PRA. West v. DNR, (filed August 2011).

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

FREQUENT FLYERS

17

MANAGING RESOURCES

Zink v. City of Mesa, 140 Wn. App. 328 (2007) City of Mesa – Population of 440 172 requests over 2.5 years; City limits access to

inspect public records to one hour per day; claims harassment

“Administrative difficulty does not excuse strict compliance.”

Copies may be provided in batches 10% Deposit may be charged for copy costs

No insurance coverage – municipal bankruptcy??

18

ADEQUATE SEARCHES Neighborhood Alliance of Spokane County

v. Spokane County (filed September 29, 2011) reasonably calculated to uncover all relevant

documents depends on the facts of each case An “adequate search” is separate from whether

additional responsive documents exist but are not found

Must make more than a perfunctory search Follow obvious leads as they are uncovered The search should not be limited to one or more

places if there are additional sources Not every possible place a record may conceivably be

stored, but only those places where it is reasonably likely to be found

19

DOCUMENTING ADEQUATE SEARCHES

Each request is unique. Meet w/ personnel, ask questions, document the logic of a search. Reasonableness is the standard. Seek clarification & educate the requester. Implement records management, search, and retrieval systems. Checklist items:

1. What divisions or offices conducted a search for public records?

2. Which employees within those divisions responded?

3. What specific guidance was provided to interpret the request?

4. What software was used to conduct the search?

5. Document employee training on the use of the software.

6. Was the search specific to a particular file type, or any file type?

7. What search terms are used by each responding employee? (good search software will save the search terms with the responsive electronic records)

8. Responsive records should be saved. (electronic storage is cheap and saving your results helps to show your search was adequate) 20

EXEMPTIONS FROM DISCLOSURE

Personal Privacy

School RecordsEmployee Files

Tax Filings

Credit Card Numbers

Police InvestigationsSex Offender Reports

License Applications

Test Questions

Employment Applications

Unfair Practice Questions

Real Estate AppraisalsFormulas

DesignsComputer Source Code

Ferry Bid Financial InfoLoan Applications

Business Plans

Valuable Trade Info

Public Stadium Leases

Casino Audits

Alcohol Sales

Business Methods

Life Sciences Discovery Fund

Trade Secrets

Farm Plans

Production Plans

Grant Applications

Drafts

NotesOpinions

Attorney-Client Communications

Archaeological Maps

Watershed AnalysisHistorical Sites

Artifact LocationsReligious Sites

Library Records

Vocation Schools Tuition Units

College Gifts

Utility Records

Telephone Records

Vanpool Members

Carpool Members

Paratransit Users

Transit Pass UsersTruck equipment

Toll Transponders

Timeshare Members

Homeowner Association Members

Condominium Members

Social Security Numbers

Health care providers

Pharmacy RecordsQuality Improvement

Committees

Antitrust Exemptions

Domestic Violence Programs

Rape Crisis Centers

Livestock Ginseng Growers

Animal IdentificationHomeless Shelters

Transitional Housing

Viators

Bank Examinations

Unemployment

SecurityEmergency Response

Endangered Species Radio frequencies

Veteran Discharge Papers

Fireworks ReportsCorrectional Industries

Over 500 Exemptions!

COMMON EXEMPTIONS 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). See Mechling v. Monroe, 152 Wn. App. 830 (2009)

Investigative files of law enforcement. RCW 42.56.240. See Koenig v. Thurston County Prosecutor (September 27, 2012)

Preliminary drafts or recommendations in which opinions are expressed or policies formulated. RCW 42.56.280. See PAWS v. UW, 125 Wn.2d 243, 256 (1995).

Attorney advice or work. RCW 5.60.060(2)(a); RCW 42.56.290.

Other exemptions in law (FERPA, Trade Secrets Act, HIPAA & health care information, etc.)

22

PRIVACY

23

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!

24

EXEMPTION LOG REQUIREMENT

Log required when an agency redacts or denies public records.

Identify the type of record, date, pages, author, recipients, statutory exemption and a brief explanation. WAC 44-14-04004(4)(b)(ii).

Rental Housing Association of Puget Sound v. City of Des Moines, 165 Wn.2d 525 (2009). City adopted a “Crime free rental housing program” with a $105 fee

per rental unit. RHA requested records and the City Attorney’s cover letter generally characterized withheld documents without providing individual descriptions.

No log? – Statute of Limitations unenforceable.

Sanders v. State Attorney General, 169 Wn.2d 827 (2010). Mere “category” of info fails to provide the required explanation. Increases penalty amounts where a violation is found.

25

SAMPLE EXEMPTION LOGBroad Subject Matter v. Brief Explanation

Page No.

Date Doc. Type

Author Recipient

Basis of exemption

13 4/1/11 Email Tim Ford

Joe Smith Controversy – RCW 42.56.290

44 4/1/11 Memo

Tim Ford

Sue Brown

Atty/Client Priv. – RCW 42.56.070(1) and RCW 5.60.060(2)(a)

26

PageNo.

Date Doc. Type

Auth

Recip Exemption Brief Explanatory Description

13 4/1/11

Email

Tim Ford

Joe Smith

Attorney Work Product Privilege – RCW 42.56.290

Drafts, notes, memoranda, or research reflecting the opinions or mental impressions of an attorney or attorney's agent prepared, collected, or assembled in litigation or in anticipation of litigation

44 4/1/11

Memo

Tim Ford

Sue Brown

Atty-Client Priv. RCW 5.60.060(2)(a);RCW 42.56.070(1)

Communication between attorneys that reflect attorney-client communications regarding litigation

NEW LEGISLATIVE ENACTMENTS RCW 42.56.565 - Enjoining harassing inmate requests

(2009) made to harass or threaten safety and security

RCW 42.56.250(8) - Exempting photos and dates of birth for criminal justice agency workers (2010)

RCW 42.56.520 – Allowing disclosure by providing an internet address on the agency’s website for the public record (2010)

New changes effective on July 22, 2011: SHB 1899 – Changing penalty amounts for PRA violations

Penalty range of $5 - $100 per day; now $0 - $100 SSB 5025 – Requests by inmates ineligible for penalties.

Except for bad faith violations ESSB 5098 – Exempting personal info of minors in

programs. Includes programs such as early learning, child care,

parks & recreation, youth development, after-school.

27

FAILED LEGISLATIVE BILLS

HB 1300 – Recovering personnel costs Provides a requester five free hours per month of

agency personnel time to search and copy records. HB 1316 – Enjoining any harassing request

Defines harassment to include requests which intend to interrupt or impair government services, or intend to annoy, torment, or terrorize agency employees.

HB 6351 – Amending RCW 42.56.565 The criminal injunction statute would apply to all

harassing requests. HB 6146 – Charging for commercial requests SB 6576 – Allowing school districts to charge for staff

time related to fulfilling public records requests

28

ELECTRONIC RECORDS & METADATA

29

ELECTRONIC RECORDS & DISCLOSURE

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;

Moore v. DOC (June 2006) State worker seeking information on “how the Department

implements state law governing public employees’ eligibility for health insurance.”

DOC refused to give info on a CD (estimated cost of $1.04). $5,700 for some 38,000 pages of documents. http://www.theolympian.com/2006/06/09/44754/what-is-this-pap

er.html#ixzz13P1kM2bt30

EMAILS Mechling v. City of Monroe, 152 Wn. App. 830

(2009).

• Requester wanted emails of councilmember in electronic format. Some emails were exempt and required redaction.

• No provision of the PRA expressly requires a governmental agency to provide records in electronic form.

• Consistent with “fullest assistance” requirement (RCW 42.56.100) and the model rules, on remand the trial court shall determine whether it is reasonable and feasible for the City to do so.

• City need not scan printed emails redacted by hand. Total charges paid for redacted paper copies was $76.20 at 15 cents/page.

• On remand, the city paid $157,000 to settle the case and disclosed all records in an electronic form.

31

META-DATA O’Neill v. City of Shoreline, 170 Wn.2d 138

(2010).

Oral public records request for copy of email related to a zoning matter. Email was on a personal account on a personal laptop – Public record?

Case of first impression – is meta-data a public record? Meta-data is “data about data” or hidden information about

electronic doc’s created by software programs. Meta-data “embedded” in a public record must be disclosed but

only when specifically requested.

An agency must conduct an objectively reasonable search for responsive records. WAC 44-14-04003(9). Cost of purchasing software to search MAC laptop = $500 to

$1,000.32

META-DATA O’Neill continued

Records retention implications: Use agency email servers!! Emails of elected official are

subject to retention and disclosure. WAC 434-662-150. How do you retain meta-data without destroying it?

Electronic records must be retained in electronic format and remain usable, searchable, retrievable and authentic for the length of the designated retention period. WAC 434-662-040. Paper is not a substitute unless approved. Retain all web content. WAC 434-662-040. An agency is responsible for a security backup of active

records.

33

ELECTRONIC REDACTION = SAVINGS

1. Copy costs – Inspection is free. Agencies lose money for redacted paper copies that are only inspected.

2. Storage – Electronic storage costs are less than paper.

3. Staff time – Simplicity of electronic redaction process will reduce redaction time and errors. Scanning paper back into electronic form reduces productivity.

4. Security – Inspection of paper copies at agency offices may require supervision. Electronically redacted records may be mailed for inspection.

5. Lawsuit – Metadata isn’t preserved in a redacted paper format. Do you really want to be sitting in court thinking how it would have been much cheaper just to buy the software for electronic redaction?

34

WHAT FEES MAY BE CHARGED?

Any person may inspect public records for free. No charge to search, review, or redact public

records. Copying fees may not exceed 15 cents per page

unless an agency determines its actual per page costs.

Actual costs may include staff time if directly related to copying and shipping (including scanning).

Electronic copies cost practically nothing. Agencies may send a scanning/copying project

to an outside vendor if quicker and less expensive. WAC 44-14-07001(5).

35

AGENCY LIABILITY Citizen lawsuit may be filed in court within 1 year

of claim of exemption or last production on an installment basis. RCW 42.56.550

Agency has the burden of proof. Payment of court costs and attorney fees. RCW 42.56.550.

Payment of mandatory penalties: $0 to $100 per day for unlawful delay or denial (SHB 1899)

Inmates are not entitled to penalties unless agency acts in bad faith. (SSB 5205).

36

“KING” OF ALL PUBLIC RECORDS CASES

Armen Yousoufian’s request in 1997. King County delayed release nearly four years. Litigation took over 11 years with 3 supreme court

rulings. Yousoufian v. King County, 168 Wn.2d 444 (2010) Seven mitigating factors:

1. Unclear request,

2. Prompt response, or legitimate clarification inquiry,

3. Good faith**, honest, timely, and strict compliance with all PRA procedural requirements and exceptions,

4. Proper training and supervision of the agency's personnel,

5. Reasonableness of any explanation for noncompliance,

6. Helpfulness** of the agency to the requestor,

7. Existence of agency systems to track and retrieve.37

YOUSOUFIAN CONTINUED Nine aggravating factors:

1. Delayed response (especially where time is of the essence**),

2. Lack of strict compliance by the agency with all the PRA procedural requirements and exceptions,

3. Lack of proper training and supervision of the agency's personnel,

4. Unreasonableness of any explanation for noncompliance by the agency,

5. Negligent, reckless, wanton, bad faith, or intentional noncompliance with the PRA by the agency,

6. Agency dishonesty,

7. Public importance of the issue related to the request (where forseeable to the agency**)

8. Actual personal economic loss to the requestor resulting from the agency's misconduct, where the loss was foreseeable to the agency

9. Amount necessary to deter future misconduct by the agency considering the size of the agency and the facts of the case.

Yousoufian award = $45/day for 8,252 days totals $371,340

38

“SHOW ME THE MONEY"

39

EMPLOYEE CIVIL LIABILITY

Violation of the Ethics in Public Service Act, RCW 42.52.050(4) Intentionally conceal a public record; Required to be released under the Public Records Act; and Employee was under a personal obligation to release the

record. Applies primarily to state employees.

Enforcement by state ethics board for state employees Up to $5,000 per violation Payment of damages sustained by the state Payment of costs, including investigation

40

SHREDDING YOUR JOB

41

EMPLOYEE CRIMINAL LIABILITY

RCW 40.16.020 – Injury to and misappropriation of record.

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.

State v. Norgard, 183 Wash. 208 (1935) (upholding 17 criminal convictions of Mr. Norgard, Snohomish County Clerk for falsifying public receipts and converting public money for personal use.)

State v. Korba, 66 Wn. App. 666 (1992) (employee guilty on 5 counts of injury or misappropriation of a public record for discarding applications for copies of birth certificates and keeping the copying fee).

42

Former National Security Adviser Sandy Berger

Community service and probation, fined $50,000 for removing andDestroying highly classified documents from the National Archives.

Former Skamania CountyAuditor - J. Michael Garvison

Both have upcoming trials andface felony charges including misappropriation of a Public Document DestructionEmbezzelment

Former Lewis CountyMuseum Director -Debbie Knapp

ATTORNEY GENERAL’S MODEL RULES

Provides “best practices” for compliance

Any part of the model rules may be adopted

Rules contain advisory comments

Rules are non-binding, but they are based on extensive outreach and court decisions

A resource for training

Ch 44-14 WAC

44

CASES CITING THE AG’S MODEL RULES

Forbes v. City of Gold Bar, 171 Wn. App. 857 (2012). An agency has a right to extend a reasonable estimate based on specified criteria.

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 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).

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).)

45

CASES CITING THE AG’S MODEL RULES

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).)

Burt v. Dept. of Corr., 168 Wn.2d 828 (2010) (“[i]f an injunctive action is filed, the third party or agency should name the requestor as a party or, at a minimum, must inform the requestor of the action to allow the requestor to intervene.” WAC 44-14-04003(11))

Sargent v. Seattle Police Dept., (filed Sept 19, 2011) (“An agency is not obligated to supplement responses.”) WAC 44-14-04004(4)(a).

Mitchell v. WA State DOC, (filed Sept 7, 2011) (“rules are not binding but provide useful guidance to agencies . . . Agencies need not provide records electronically if it is not technically feasible to do so.”) WAC 44-14-05001.

46

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/

47

QUESTIONS?

48