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Washington’s Public Records Act

By on Feb 6, 2015 | 1 comment

Sunshine is said to be the best of disinfectants.” – Justice Louis Brandeis.Justice Brandeis’s famous quote was referring to transparency in banker compensation, specifically to avoid corrupt practices that were common at the time. That quote was later applied to government at large, with people believing a transparent, accountable government better serving the people. The Sunlight Foundation, a nonprofit dedicated to open government, was inspired by this quote.

Washington State, where I work and live, also believes in open government. Washington enacted the Public Records Act (PRA), which gives its residents the right to review almost all government records. It’s a great boon to the citizens of the state, and a very useful tool for me as an attorney. Today’s post is about the PRA’s powers and limitations, and how I use it in my practice.

The PRA is a powerful piece of legislation. Written into the PRA is a very strong presumption towards releasing records. The PRA includes this lovely paragraph:

“The people of this state do not yield their sovereignty to the agencies that serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may maintain control over the instruments that they have created. 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.”

And the courts have taken it to heart, often finding in favor of people who request records. This leads to another reason how the PRA is powerful: its enforcement. But we’ll get to that in a bit.

By its terms, the PRA applies to 1) public records, 2) prepared, used, or retained by an agency, 3) which is defined as any city, county, district, or other government organization.  Let’s break that down.

Public records are every government record that doesn’t have an exemption in the PRA. There are a fair number of exemptions, but if the record you seek is not listed in the exemption, it is available for review.

There is a general exemption on records that would impact an employee’s “right to privacy,” but this can be a muddled analysis. The purpose of the PRA is government accountability. Some personal information is exempt because of these privacy rights, but only if that record doesn’t assist in government accountability. For example, social security numbers and private addresses of employees are exempted from disclosure.

What about employee performance reviews? This can be a close case and it depends on the context. Seeking employee records to harass some file clerk that you have a personal beef with would likely not fly. But you are certainly allowed to request training and discipline records of a police officer, especially if that officer is going to be a witness in a case.

For criminal cases, the PRA does allow a requestor to get police reports, with witness and victim personal information redacted. But sometimes an active case, especially a serious one that is in the process of being investigated, will be withheld so as not to jeopardize the investigation. Again, the agency is allowed to withhold these records only because the PRA specifically allows it. There are too many exemptions to list here but if you’re interested in making a PRA request, you should look at provided exemptions. However, if the Agency declined a request because of an exemption they are obligated to tell you what exemption applies

One important aspect of the PRA is that an Agency is not required to create a record for you. If you make a request to the Department of Licensing asking for how many speeding tickets were issued on the third Tuesday of every month, they could decline your request because (probably) those kinds of records do not actually exist. But if they do have a particular record they are obligated to turn it over. And those records can be in almost any format, like paper, email, digital recordings, photographs, etc.

Relatedly, the PRA requires Agencies to give you access to records. That can be either by having you come to the Agency to view them, or having the Agency send you the requested records. There is no cost to going to view the records yourself but the Agency is within its rights to charge you a fee to send the records to you, such as the cost of making copies or burning the records on to a disc.

An Agency is a fairly broad term, encompassing almost any governmental office. These include municipal and county governments, schools, police departments, and state agencies. In fact, because of PRA enforcement issues, most agencies have a dedicated person assigned to PRA requests. This is important because the PRA requires that within five days of receiving a request, the Agency either provide the records or give an estimate on when the records will be available. And as I said, if an Agency is claiming exemptions to the requested records, it must specifically describe which exemption applies.

A side story. Seattle, where I live, just promulgated an ordinance that requires homes to compost their food trash. Recently my wife pointed out there was an apple core in the trash and that I should put it in a compost bin because it’s more environmental and also so we don’t get fined. I pointed out that the law wasn’t being enforced at all right now and even when it is, it seems very difficult for the City to check the food percentages of sealed trash bags. And since we rent in a multi-unit facility anyway, it was probably our landlord’s problem; how could they trace it to us? Then I took the apple core out of the trash and put it in the compost bin.

What does all this mean, besides I’m kind of pedantic and I clearly hate the Earth? Well blame law school for that (Not the Earth part). I learned early on a law is only as powerful as its enforcement mechanism. In other words, for a law to have meaning, it needs to have teeth.

Luckily for Washingtonians, the PRA has teeth. If a citizen sues under the PRA, and they win, the Agency found at fault not only owes attorneys’ fees to the citizen, they also owe a penalty for not turning over the requested records. The penalty is a minimum of five dollars per day for the withheld records, all the way up to $100 a day for not turning things over. This can, and has, resulted in penalties of thousands of dollars to Agencies for failure to comply. Which again is why most public agencies have dedicated support for PRA requests.

All this is well and good, but what is the point of the PRA for you or me?

First of all, I agree with Justice Brandeis’s views and feel the government should be accountable. The PRA is a great tool for people who, like most of us, are not intimately involved in the business of governance.  I’m certain many people reading this would like to know, e.g. how the parks department spends their money, or the training of local police departments.

But from my professional position, of defending people charged with crimes, the PRA is amazingly useful.

PRA requests that I’ve made in the last few months include: requests for in-car video of a particular stop, audio recordings of Department of Licensing hearings, calibration records of a speedometer of a particular police officer’s car, DataMaster maintenance records, and camera repair records. Every single request I’ve made has been responded to and every time the records were helpful for me to better serve my clients.

You’ll see most of those requests are on police departments and there’s a good reason for that. My cases almost always involve police reports, which are reports written by an arresting officer. Those reports are sometimes written hours or days after the event, and they can be inaccurate or be missing information. But independent records, like speedometer calibration logs, are generally not written by the same officer and can be a useful place of comparison. You can imagine when a public record conflicts with an officer’s account, that’s good for my clients.

The PRA is a right granted to the citizens of this state. It can be interesting or informative in a general sense, and particularly useful in my line of work. If you or someone you know needs an attorney who will explore every avenue in order to achieve the best result, feel free to give me a call.

 

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  • barry

    At 10:00 a.m. Friday November 20, 2015, Thurston County Superior Court Judge, the Honorable Erik Price, heard the PRA case of Burke v. Montesano Department of Corrections, No. 14-2-01089-1.

    Plaintiff had requested all Department of Corrections records for a certain person. Defendant responded with several documents, but did not claim any exemptions and did not specify anything further.

    Plaintiff later found by happenstance that further responsive documents were known to DOC but not disclosed, and filed the lawsuit.

    Defendant moved for summary judgment on the ground that the one-year statute of limtations under the PRA had run, that is, the lawsuit was not filed until more than a year after DOC disclosed said documents.

    Plaintiff argued that the PRA must be liberally construed, and therefore, the statute of limitations therein can be tolled under Washington’s discovery rule, which normally applies in tort cases.

    Significant oral argument ensued since there was no Washington state authority explicitly applying the discovery rule to a PRA case.

    Judge Price ruled that under the limitation period required by the statute, the claim was untimely. But he denied summary judgment and found the claim timely anyway, on the grounds that Washington’s discovery rule, normally applicable in tort cases, also applied in the PRA case, and since Plaintiff filed the lawsuit within one year of his discovery that DOC improperly withheld by silence hundreds more documents responsive to his PRA request, the lawsuit was timely. The Court’s legal basis was citation to Reed v. City of Asotin, 917 F. Supp. 2d 1156 – Dist. Court, ED Washington 2013 as a persuasive case for the proposition that Plaintiff had no reason to know until after the statutory period originally expired, that DOC improperly withheld documents.

    After the ruling, Plaintiff argued that the court’s legal ruling foreclosed Defendant from arguing in the future for expiration of the statute of limitations. Defendant disagreed and said the record is not sufficiently ripe for deciding exactly why Defendant had failed to produce records. The Court set a date of December 11, 2015 for a status conference, allowing each party 5 pages each to present the issues they wished to discuss therein.

    Barry Jones
    barryjoneswhat@yahoo.com

The facts and circumstances of your case may differ from the matters in which results and testimonials have been provided. Every case is different, and each client’s case must be evaluated and handled on its own merits.