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

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
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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.
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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

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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).
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“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. 6

“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”
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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)
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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 required to resort
to a matter (required to be published)
that is not published
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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)

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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

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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
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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.
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“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
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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
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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)
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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
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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

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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.)
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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
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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
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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
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CONSEQUENCES OF
IMPROPER DENIAL
Public trust damaged

Lots more record requests are filed

Newspaper publishes critical article

Careers damaged

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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.
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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
WA School Directors Assoc. www.wssda.org

Secretary of State (retention of records)

www.secstate.wa.gov/archives/RecordsManagement/
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Questions?
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