Rob McKenna
Top 15 TIPS
FOR PUBLIC REcORDS COMPLIANCE
15. Almost everything a state or local government has (paper or electronic) is a
public record subject to disclosure.
14. Disclosure is the rule; withholding is the exception.
13. Sometimes a small part of a record (such as the name of a witness in an
investigative report) is exempt from disclosure. The agency must redact
(black out) the exempt portion and provide the remainder of the record.
12. An agency must invoke at least one of about 300 specific statutory
exemptions (such as records showing sales of a ginseng dealer
(RCW 42.56.380(6)). There are no general exemptions like \"privacy\" or
\"it's not in the public interest to provide that.\"
11. If challenged, the burden of proof is on the agency to show that a specific
statutory exemption applies to every record or portion of record withheld. In
a sense, an agency is \"guilty until proven innocent\" in a court action to
obtain the records.
1o. A requestor can go to court and force the agency to prove it was justified in
withholding a record or portion of the record.
9. A successful requestor in a Public Records Act enforcement action is
entitled to reasonable attorney's fees, all costs, and a daily penalty of
between $5 - $100.
8. Newspapers will often cover a story about an agency refusing to release
information. Agencies-and especially the elected officials who run them-
should be aware of the public relations results of a denial.
Revised 8/15/07

7. Training is critical. Good training can be the difference between a happy
requestor and an expensive law suit (and bad press coverage). Each agency
should have a trained public records officer. Other employees in the agency
should have basic public records training (such as knowing how to recognize
a public records request).
6. Never ignore a public records request. The agency has a legal obligation to
provide a response to the request in five business days. Failure to do so is a
per se violation of the Public Records Act entitling the requestor to
attorney's fees, costs, and penalties. Sometimes requestors insert a records
request in a long letter about something totally different. Read every letter
or email from a citizen carefully for possible records requests.
5. Agencies and their employees are immune from liability to third parties
when they release records in a good faith attempt to comply with the Public
Records Act. RCW 42.56.060.
4. The most important practical thing is to communicate with the requestor to
know what he or she is asking for-and not asking for-and let the requestor
know the agency is working on the request.
3. You have many resources at your disposal when it comes to the Public
Records Act. The AG's Office has adopted detailed model rules for public
records compliance. They are Washington Administrative Code chapter
44-14 and are on the AG's web site at
http://www.atg.wa.gov/OpenGovernment/default.aspx. Another helpful
resource is the Washington State Bar Association Deskbook on public
records. It has 21 chapters on things like \"Investigative Records,\" \"The
Attorney-Client Privilege Exemption,\" and \"Personnel Records.\" Every
agency should own a copy.
2. You can always call or email Timothy Ford, Assistant Attorney General for
Government Accountability, Open Government Ombudsman. His phone
number is (360) 586-4802 and his email is agoombudsman@atg.wa.gov. He
has experience with litigating public records issues as both a requestor and
an agency attorney.
1. \"When in doubt, give it out.\" Rob McKenna (2005). You can't go wrong.
Revised 8/15/07