- May a city or county charge more than 15 cents per page for color copies?
A city or county may charge no more than 15 cents a page unless it has determined the actual per page cost. If the city or county determines that the actual per page cost of a color copy is, say, 20 cents, it may charge that amount for color copies. RCW 42.56.120 provides in part as follows:
Agency charges for photocopies shall be imposed in accordance with the actual per page cost or other costs established and published by the agency. In no event may an agency charge a per page cost greater than the actual per page cost as established and published by the agency. To the extent the agency has not determined the actual per page cost for photocopies of public records, the agency may not charge in excess of fifteen cents per page.
For information on establishing per page charges, see WAC 44-14-07001 ("General rules for charging for copies"), one of the Attorney General's "Model Rules" for public records disclosure. Note that, at subsection (3) ("Charges for copies other than standard photocopies"), this regulation provides:
Nonstandard copies include color copies, engineering drawings, and photographs. An agency can charge its actual costs for nonstandard photocopies. RCW 42.56.120, formerly RCW 42.17.300.
So, as long as a city or county establishes the actual cost for color copies it may charge that cost.
- What is the retention period for a video recording made by a camera in a police car for routine traffic stops?
The retention period for such video recordings is 90 days. This is provided in the Records Management Guidelines and General Records Retention Schedules for Law Enforcement Agencies of Washington State, 2001, provides in the section on "Evidence" (page 53, Series No. 9) that video tapes or other recordings from mobile units, when the recording does not relate to a specific case investigation (e.g., a routine traffic stop), the retention period is 90 days. After 90 days, the tape can be reused.
- Do cities and counties have an obligation under public records law to provide records that will be filed with or created by the city or county in the future?
No. As stated in WAC 44-14-04004(4)(a), part of the attorney general's office's "Model Rules for Public Records,":
An agency must only provide access to public records in existence at the time of the request. An agency is not obligated to supplement responses. Therefore, if a public record is created or comes into the possession of the agency after the request is received by the agency, it is not responsive to the request and need not be provided. A requestor must make a new request to obtain subsequently created public records.
See also, Smith v. Okanogan County, 100 Wn. App. 7, 14 (2000), holding that "an agency is not required to create a record which is otherwise nonexistent."
- May a public records request be satisfied by directing the inquirer to a link on a web site?
The Model Rules for Public Records adopted by the Washington State Attorney General's Office (Ch. 44-14 WAC) state that an agency can provide access to public records by posting them on its web site. If the requestor does not have internet access, the agency may provide access to the record by allowing the requestor to view the record on a specific computer terminal at the agency open to the public. Despite the availability of the record on the agency web site, a requestor can still make a public records request and inspect the record or obtain a copy of it by paying the appropriate per-page copying charge.
- Must city and county governments disclose private e-mail addresses found in correspondence it receives, or may it redact such information?
In our opinion, they must disclose such information. While the public disclosure statutes exempt the disclosure of residential addresses, such as the residential addresses of an agency's employees and volunteers and those of utility customers, there is no general exemption for addresses and, in any case, an e-mail address is not a residential address. To conclude otherwise would require an expansive reading of the exemption for "residential addresses," contrary to statute which requires exemptions to be "narrowly construed."
- May cities and counties impose their regular photocopy charges when responding to a public disclosure request for copies of their civil service rules?
No. State law requires that cities and counties provide copies of police or fire civil service rules to the public for free. See RCW 41.08.040(1) and RCW 41.12.040(1), pertaining to fire and police civil service in cities, and RCW 41.14.060(1), pertaining to civil service for the sheriff's office in counties, which provide that the civil service rules and regulations "shall be printed, mimeographed or multigraphed for free public distribution."
For more information on this topic, see our "MRSC Inquiries - Public Records" and "Public Records Disclosure" Web pages.
- Must copies of public records be provided at no cost if requestor says he/she cannot afford the cost?
There is no provision in state public disclosure law that exempts indigent persons from having to pay for copies of public records pursuant to a public disclosure request. A public agency could adopt a policy to that effect; however, unless it puts an upper limit on that number, it would be opening itself up to providing to indigent persons any number of copies at no charge. Also, any such policy should require proof of indigent status, as that may be defined in the policy.
For more information on this topic, see MRSC's "Public Records Disclosure" Web page.
- Are building plans submitted by a developer for approval by the local government considered disclosable information?
Building plans submitted to a local government for approval are considered public records and copies should be given to individuals requesting them. There is no public disclosure exemption that applies to such plans. If a municipality has reason to believe that the developer may object to the disclosure of the plans, the municipality has the option of notifying the developer before disclosure so that the developer can attempt to obtain a court order prohibiting disclosure.
- Are police-prepared accident reports subject to public disclosure?
Traffic accident reports prepared by law enforcement officers and held by law enforcement agencies are subject to disclosure so long as the data was not compiled and collected in connection with application for federal highway funds pursuant to 23 U.S.C. §152. Those same reports, when collected and compiled by another local agency department to assist with application for §152 funds are privileged, pursuant to 23 U.S.C. §409. Pierce County v. Guillen, 537 U.S. 129 (2003) reversed Guillen v. Pierce County, 144 Wn.2d 696 (2001), and supercedes the advice in a 2001 Attorney General Opinion (2001 Att'y Gen. Op. No. 8).
For additional analysis of this complex issue we recommend that you review "Pierce County v. Guillen: Practical Answers to Privileged Questions", Daniel R. Hamilton, Gonzaga Law Review, Vol. 39, No.2, 2003/04.
- Public Disclosure - Is the address of a former employee exempt from public disclosure after the employee has ceased to be employed by the city or county?
Yes. RCW 42.56.250(3) exempts from public disclosure an employee's residential address and telephone number. The state court of appeals in Seattle Fire Fighters Union v. Hollister, 48 Wn. App. 129 (1987), held that the public employee disclosure exemption continues even after the employee has retired. The court reasoned that the legislative intent of an exemption to protect the privacy rights of public employees logically leads to the conclusion that the exemption does not terminate upon retirement.
For more information on this topic, see our Public Records Disclosure Web page.
- Public Disclosure - Is a letter of reprimand in an employees personnel file a public record that must be disclosed?
Yes, if it relates to misconduct on the job. The test is whether the record would be highly offensive to a reasonable person and is not of legitimate concern to the public. Since it relates to misconduct, it is of legitimate concern to the public and must be released. See Dawson v. Daly, 120 Wn.2d 782 (1993) and Cox v. Roskelley, 359 F.3rd 1105 (9th Cir. 2004). In the latter case both parties agreed that a Notice of Termination letter placed in the employee's personnel file was not exempt from disclosure. On a related issue, the Cox court stated:
"We now hold explicitly that placement of the stigmatizing information in Cox’s personnel file, in the face of a state statute mandating release upon request, constituted publication sufficient to trigger Cox’s liberty interest under the Fourteenth Amendment. The lack of an opportunity for a name-clearing hearing violated his due process rights."
For more information on this topic, see our Public Records Disclosure page.
- Public Disclosure - Are the names of finalists for a city manager position open to public inspection?
No. RCW 42.56.250(2) exempts from public inspection and copying all applications for public employment, including the names of applicants, resumes, and other related materials.
For more information on this topic, see our Public Records Disclosure Web page.
- How long must a city or county retain the minutes of advisory boards, committees or commissions?
The Local Government Common Records Retention Schedule (CORE), December 2008, (
1.55 MB) indicates on p. 16 that such records shall be retained for 6 years, and have potential archival value, so your Regional Archivist should be contacted before disposing of the records.
For more information on this topic, see the following:
- Does the public disclosure exemption for names of persons who file complaints apply to a complaint filed with the planning department about a land use violation?
Yes, we believe it would apply to protect the name of the complainant from disclosure. RCW 42.56.240 exempts from disclosure information revealing the identity of persons who are witnesses to or victims of crimes or who file complaints with investigative, law enforcement, or penology agencies if disclosure would endanger any person's life, physical safety or property. If at the time the complaint is filed, the complainant indicates a desire for nondisclosure, such desire shall govern.
The issue is whether a complaint filed with a city planning department could qualify under this exemption, and specifically whether a planning department can constitute an "investigative agency." In this case, the planning department does have specific authority to investigate complaints and issue fines, seek abatement or seek criminal penalties, and, as such, we believe it would qualify as an investigative agency. The intent of the statute is to encourage citizens to file complaints as necessary and be assured that their safety will be protected. This intent is furthered by considering a planning department as being an investigative agency for purposes of the public disclosure law.
One case that supports this conclusion is Tacoma News v. County Health Department, 55 Wn. App. 515 (1989). In that case, the court specifically held that a health department is an investigative and law enforcement agency. This is not precisely analogous but it does indicate that investigative agencies are not limited to police departments or other strictly criminal justice agencies.
- Request for sample electronic records management policies.
Most Washington local government electronic records management policies are based on the Washington State Archives requirements and records retention schedules for local governments. The State Archives has issued several useful publications, including the guidelines for electronic mail policies and records management (see links below). While an electronic records management policy generally addresses the retention of all electronic records, in practice many of these policies deal primarily with E-mail. Sometimes local government network use and Internet use are covered as well.
The following are issues that are appropriately addressed in an electronic records management policy:
- Creation of records
- Proper and improper uses (especially related to E-mail and Internet use)
- Public disclosure, privacy/confidentiality, and other legal issues
- Records retention requirements
- Maintenance and management of records
- Retrieval of electronic records
- Monitoring of records and enforcement of policy (including city's right to access)
- Security.
Such policies typically include a purpose and definitions sections. Other specific topics may include use of electronic signatures, geographic information systems, and copyright.
Rules have been adopted regarding the preservation of electronic records - see chapter 434-662 WAC. The State Archivist Office has prepared a list of "Frequently Asked Questions for Digital WAC 434-662"; that document also answers questions regarding archiving of local government electronic records at the state digital archives.
Also see the MRSC Research Brief, "Internet and E-Mail Policies" (1998).
Washington State and Local Government Information
General Articles
Policies from Other States
Other Information on Archival Standards
- How are the five business days calculated in RCW 42.56.520, which relates to responding to public record requests?
RCW 42.56.520 provides that a response to public records request must be made by the agency within five business days. The question is whether the day the request is received counts as one of the five days.
This office has taken the position that the day the request is received does not count as one of the five days. As additional support for that conclusion, RCW 1.12.040 provides:
The time within which an act is to be done, as herein provided, shall be computed by excluding the first day, and including the last, unless the last day is a holiday, Saturday, or Sunday, and then it is also excluded.
This statute appears to be of general application throughout the state statutes.
Additional indirect support exists in the case of Limstrom v. Ladenburg, 98 Wn. App. 612 (1999). That case involved a public records request. The request was received on Tuesday, February 3, 1998 and the county responded on Friday, February 6, 1998. The court indicated that the response was made on the third day within the five day time period, which means the court was not counting the day the request was received.
- In connection with a public records disclosure request, may a city or county charge for the cost of retrieving and re-filing public records that are archived in commercial facilities that charge for such costs?
No. Public agencies may not charge requestors for any costs incurred with locating records and making them available for inspection and/or copying. Copying charges may, of course, be imposed. See RCW 42.56.120
- If a city or county intends to rebid a public works project after all bids have been opened and rejected, must the previously rejected bid documents be disclosed in response to a request for public disclosure?
Yes. There is no exception to public disclosure that would exempt the bid documents from disclosure (except for proprietary information that might qualify under the RCW 42.56.270.
- Is a list of individual county or city employee e-mail addresses subject to public disclosure?
Yes, there is no statutory exemption from public disclosure that would apply here. Since these are workplace and not home e-mail addresses, there are no personal privacy implications. The e-mail list is really no different than a list of work telephone extension numbers.
- Is a local government agency required to respond to a public records disclosure request electronically? Specifically, if a requestor asks that copies of specific public records be faxed, e-mailed, or provided via diskette, must the city respond as requested?
If a person requests that electronic records be provided in electronic format, the city is required to provide the records in electronic format. O'Neill v. Shoreline, 145 Wa.App. 913 (2008). The PRA requires agency rules to "provide for the fullest assistance to inquirers". RCW 42.56.100.
If paper records are requested in electronic format, a local government agency is not required to transfer the printed records to electronic format. An agency is not obligated to create a new record to satisfy a records request. Smith v. Okanogan County, 100 Wn.App. 7, 13 (2000). See also WAC 44-14-04003(5). If it is easier for staff to respond electronically, that is certainly encouraged.
- How should a city respond to a general request for information or records on a particular subject?
Under state public disclosure law, public records are to be made available for inspection and copying upon a request for "identifiable public records." RCW 42.56.080 Thus, if an individual simply requests information on a particular subject or all records on a particular subject, such a request does not comply with the specificity required by the statute. For example, a city would not be required to comply with a request for all records relating to utility rates, but it would be required to comply with a request for all utility rate ordinances enacted between 1985 and 1990. To facilitate public access to public records, a city must maintain an index of its records, unless to do so would be unduly burdensome. RCW 42.56.070(3), (4). See also WAC 44-14-04002(2) which discusses "identifiable record".
- How soon must a city respond to a request for public records?
State law requires that responses to requests for public records be made "promptly." Specifically, cities and other governmental agencies must within five business days of receiving a request respond in writing by either (1) providing the record, (2) acknowledging receipt of the record and providing a reasonable estimate of the time in which a response will be made, or (3) denying the request. Additional response time beyond five days may be based upon a need to clarify the request, to locate and assemble the records requested, to notify people and agencies affected by the request, or to determine whether any of the requested records are exempt from disclosure. RCW 42.56.520. WAC 44-14-04003 discusses the required timely response and provides some commentary on providing a "resonable estimate" of the time necessary to respond and on asking for a clarification of the request.
- What can a city charge for providing copies of public records?
Cities are not allowed to charge for the staff time spent in locating a public record, or for making a record available for inspection. A city can however, charge for the actual costs connected with copying public records, including the staff time spent making the copies. A city cannot charge more than fifteen cents a page for photocopying unless the city has calculated its actual costs per page and determined that they are greater than fifteen cents. Actual costs for postage and delivery can be included, as well as the cost of any envelopes. If a city has to pay an outside source for making duplicates of records such as photographs, blueprints or tape recordings, the city can also pass those costs on to the requestor. RCW 42.56.070(7) & (8) and RCW 42.56.120. See also WAC 44-14-070 and the Comments to that WAC, beginning with WAC 44-14-07001.
- What constitutes a public record?
The state statutes broadly define public records. "`Public record' includes any writing containing information relating to the conduct of government or the performance of any governmental or proprietary function prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics." RCW 42.56.010(2).
The term "writing" encompasses a wide range of communication forms or representation. Writing includes, but is not limited to, any form of letters, words, pictures, sounds, or symbols and all papers, maps, tapes, films, prints, motion picture, film, and video recordings. RCW 42.56.010(3).
- Does a councilmember have greater access to public records than the public?
As a general rule, a councilmember has greater access to public records than does the public. However, a councilmember's access should relate to the duties of that office.
- What public records are exempt from disclosure?
In general, public records that are exempt from public disclosure are those in the categories listed in RCW 42.56.210 through 42.56.480. Reference must be made to these statutes to determine on a case-by-case basis whether a particular record is exempt. (Examples of a few commonly encountered exemptions are discussed in questions below.) When a city denies a request for disclosure of a public record, it must identify the specific statutory exemption upon which the denial is based and it must provide a brief explanation of how that exemption applies. RCW 42.56.210(3).
It should be kept in mind, however, that certain statutes outside of the public records law also prohibit disclosure of particular records. For a complete listing of those statutes, see appendix C of MRSC's Public Records Act publication.
- Are employment applications exempt from disclosure?
Yes, applications for public employment, including the names of applicants, resumes, and other material related to the applications are exempt from disclosure. RCW 42.56.250. Although the statutory exemption does not specifically refer to applications for public appointive office, its legislative history indicates that it was intended to also apply to applicants for offices, such as the office of city manager or city clerk.
- Is personal information contained in employee personnel files exempt from disclosure?
It depends on the nature of the information in these records. Residential addresses, residential phone numbers, personal e-mail addresses, social security numbers, information regarding dependents, etc. are all exempt. See RCW 42.56.250(3).
RCW 42.56.230(2) exempts employee records records "to the extent disclosure would violate [the employee's] right to privacy." What constitutes a violation of a person's right to privacy is defined by statute to mean the disclosure of information that would be (1) "highly offensive to a reasonable person" and (2) "not of legitimate concern to the public." RCW 42.56.050. This is a stringent test, and it is unlikely that the disclosure of most records found in personnel files would violate an employee's right to privacy, as defined by this statute.
Medical records of employees are PROHIBITED from disclosure by the statutes in chapter 70.02 RCW.
- Must a city disclose records which reveal the salary and benefits that a particular employee or official receives?
Yes. There is no disclosure exemption that applies to such records. Employee voluntary deductions from salary are exempt. The public has no legitimate need to know, for example, how much an employee donates monthly to a United Way campaign, or how much an employee contributes voluntarily to a retirement plan or "cafeteria-type" program.
- Must a city disclose utility billing records?
Yes. No exemption applies. However, the city should not disclose the residential addresses and telephone numbers of utility customers that may be contained in such records. RCW 42.56.330.
- Must a city provide public records if they are being requested for commercial purposes?
In addition to the statutory exemptions from disclosure that a city must consider in responding to a particular request, a city is prohibited from providing or giving access to "lists of individuals" if requested for commercial purposes. RCW 42.56.070(9). The Attorney General's Office has interpreted this provision to refer only to lists of natural persons, rather than, for example, to lists of businesses. Public records other than "lists of individuals" requested for commercial purposes should be provided upon request if they are not statutorily exempt from disclosure.
- Must city provide names of city manager interviewees to requesting newspaper?
No. RCW 42.56.250(2) exempts "all applications for public employment, including the names of applicants, resumes, and other related materials submitted with respect to an applicant," from public disclosure and copying.
Although this section only makes reference to public employees, a review of its statutory history suggests that it also covers officials. Language included in a governor's veto of a related, referenced section, makes it clear that applications for appointment to an office, such as city manager, should likewise be exempt from inspection and copying.
- When should draft council minutes be made available to public?
Draft minutes should probably be made available to members of the public when completed, even though not yet approved by the council. It might be argued that RCW 42.56.280 exempts draft minutes; however, the draft minutes presumably do not include the clerk's "opinions" or proposed policies. Since the policy behind the public records act is that its terms are to be "liberally construed" to allow for complete access to public records, the safest approach is to allow the public access to the draft minutes. The minutes should be clearly marked as being "draft" and "without council review and approval."
- May town disclose record containing a list of town businesses if requested for a commercial purpose?
Yes. Based on an attorney general's opinion, the statutory prohibition on disclosing "lists of individuals" if requested for commercial purposes [see RCW 42.56.070(9)] applies only to lists of "natural persons," and thus, does not apply to lists of businesses.
- May some public records be stored in private buildings?
Yes. Public records are the property of the local government agency that created them, and should be stored in a secure and efficient way. Public records may be stored in any public building or even in a private, rented records storage facility. The security of the records must be maintained wherever they are stored. Becuase of the need to access records quickly when responding to a request for disclosure, it would be unwise to store public records in a location that makes access difficult or time consuming.
See WAC 434-615-020, which requires that records generally be stored in the public buildings of the agency where they were originally filed.
- Must a local government agency provide all public records requested within five days?
No. A local government agency is required to make a preliminary response within five business days. The response may be to provide the records, but may also be to indicate a time frame within which the city may reasonably fulfill the request. See RCW 42.56.520.
- Must records of a local government agency be copied for free for nonprofit organizations?
No. The public records law allows a local government agency to recover a reasonable charge for providing copies of public records to any person. This applies to nonprofit corporations as well as private citizens or businesses. The charge may not exceed the amount necessary to reimburse the agency for its actual costs and may not include staff time needed to retrieve the documents.
- Are informal notes prepared and kept by mayor and councilmembers public records that are subject to disclosure?
Informal notes prepared for the use of the official for his or her own convenience, maintained in a way that indicates a private purpose, and not intended for circulation or distribution within the city, would most likely be considered personal and not public records. As such, they would not be subject to disclosure upon request by a member of the public. See Yacobellis v. Bellingham, 55 Wn. App. 712 (1989).
- May a local government agency disclose an employee's social security number that may be contained in the employee's personnel file?
No. This information is specifically exempted now by RCW 42.56.250(3).
- Should salaries of public employees be disclosed upon request?
Yes. Salaries (and the gross wages after deductions) of all public officials and public employees must be disclosed. Personal information regarding public employees, such as home address, phone number, social security number, etc., should not be disclosed. No exemption applies to salaries. The exemption for public employee personal information is RCW 42.56.250.
- Is a local government agency required to provide public records in electronic format?
If public, non-exempt records are held in electronic format, such as e-mails and other records stored on computers, and if the requestor requests those documents in electronic format, the records should be provided in electronic format, either on a disk or by electronically transmitting the files. In keeping with the spirit of the Public Records Act, to the extent possible and feasible, local government agencies should cooperate in providing the records in the format requested. A jurisdiction can charge for the additional costs incurred in doing customized formatting. See WAC 44-14-050 and the comments to that provision, starting with WAC 44-14-05001.
All metadata that is part of an electronic record should be transmitted with the record. See O’Neill v. Shoreline, 145 Wn. App. 913 (2008).
A city or county should have an ordinance in place that provides the per-hour cost for customized services provided by information technology staff.
- Must city agree to provide copies of "future records"?
In our opinion, no. The responsibility to provide inspection or copies of records is set out by RCW 42.56.070:
Each agency, in accordance with published rules, shall make available for public inspection and copying all public records, unless the record falls within the specific exemptions of subsection (6) of this section, this chapter, or other statute which exempts or prohibits disclosure of specific information or records.
The term "public record" means:
Public record includes any writing containing information relating to the conduct of government or the performance of any governmental or proprietary function prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics. [RCW 42.56.010(2)]
And "writing" is defined as:
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 . . .. [RCW 42.56.010(3)]
A future record, that is, one that does not exist today but may be created in the future, does not, it would seem, qualify as a "writing," as there is not, as yet, any communication or representation that can be recorded. If there is no "writing," there can be no "public record" and, accordingly, there can be no requirement to allow inspection or copying as result of a current request. (Obviously, if a future request is made and the record then exists, the request will need to be considered.)
It also does not make sense to commit to providing possible future documents. When would the clock start running for providing access? Five days after creation of the document? Would the city have a continuing obligation to provide the document or tell why it is exempt forever?
In our opinion, the city's obligation is confined to existing records.
- Are cities and counties required to create a document when responding to a specific request for public disclosure?
A Court of Appeals decision has addressed this issue directly: Smith v. Okanogan County, decided 2/8/00:
No Washington case has decided whether a duty to create an otherwise non-existent document exists under RCW 42.56. But there is federal law on this issue. . . . Under the Freedom of Information Act, an agency is not required to create a record which is otherwise non-existent. See National Labor Relations Bd. v. Sears, Roebuck & Co., 421 U.S. 132, 161-62, 95 S. Ct. 1504, 44 L. Ed.2d 29 (1975). We agree and determine there is also no such duty under the State Act.
Also see WAC 44-14-04003.
- Must the city disclose the name of the complainant on a nuisance complaint?
Maybe. If the requesting party is requesting the information under the Public Disclosure Act, the name can be withheld in some circumstances. RCW 42.56.240(2) provides an exemption for:
(2) Information revealing the identity of persons who are witnesses to or victims of crime or who file complaints with investigative, law enforcement, or penology agencies, other than the public disclosure commission, if disclosure would endanger any person's life, physical safety, or property. If at the time a complaint is filed the complainant, victim or witness indicates a desire for disclosure or nondisclosure, such desire shall govern. . .
If the disclosure "would endanger" the person's life, safety, or property, or if the complainant requested nondisclosure, the record (or, at least, the identifying information) need not be disclosed.
However, if the requesting party has been charged with a crime, he or she is entitled to the information through the discovery process. The city should warn complainants that if the criminal process is invoked, their name will almost certainly have to be released. CrRLJ 4.7 provides:
(a) Prosecuting Authority's Obligations.
(1) Except as otherwise provided by protective orders or as to matters not subject to disclosure, the prosecuting authority shall, upon written demand, disclose to the defendant the following material and information within his or her possession or control concerning:
(i) the names and addresses of persons whom the prosecuting authority intends to call as witnesses at the hearing or trial, together with any written or recorded statements and the substance of any oral statements of such witnesses, ...
(iii) any reports or statements of experts made in connection with the particular case, including results of physical or mental examinations and scientific tests, experiments, or comparisons, ...
- How are the five business days calculated in RCW 42.56.520, which relates to responding to public record requests?
RCW 42.56.520 provides that a response to public records request must be made by the agency within five business days. The question is whether the day the request is received counts as one of the five days.
This office has taken the position that the day the request is received does not count as one of the five days.
As additional support for that conclusion, RCW 1.12.040 provides:
The time within which an act is to be done, as herein provided, shall be computed by excluding the first day, and including the last, unless the last day is a holiday, Saturday, or Sunday, and then it is also excluded.
The general statute appears to be of general application throughout the state statutes.
Additional indirect support exists in the case of Limstrom v. Ladenburg, 98 Wn. App. 612 (1999). That case involved a public records request. The request was received on Tuesday, February 3, 1998 and the county responded on Friday, February 6, 1998. The court indicated that the response was made on the third day within the five-day time period, which means the court was not counting the day the request was received.
- Does a local government agency have an ongoing duty to provide documents relevant to a public disclosure request?
No. If documents that a city or county would have disclosed in response to a public disclosure request are received or created after the city or county has responded to a request, it does not have a duty to provide those documents. It would be incumbent upon the requester to make a subsequent request. If a city does not have or has not yet created a record when the request is made, it is not covered by the request.
For more information on this topic, see our Public Records Disclosure page.
- What is the records retention schedule?
The general records retention schedule is issued by the Local Records Committee to serve as the retention schedule and disposition authority for records commonly held by local government agencies. The Local Records Committee is a committee which includes the State Archivist, a representative from the Office of the Attorney General, and a representative from the Office of the State Auditor.
The general records retention schedules may be applied directly by agencies as authority to destroy the records listed after the expiration of their approved retention periods. It requires no further authorization or approval.
The most recent versions of the Records Management Guidelines and General Records Retention Schedules are available on the State Archivist website. Those documents are updated periodically.
In addition to the general records retention schedule applicable to local government agencies, there are retention schedules for some specific departments of county government. Review the Stae Archivist website for further information.
- Must a local board of commissioners or council make an audio tape recording of its official proceedings and, if an audio tape is made, are written minutes still required?
There does not appear to be any legal requirement for local legislative bodies to make audio tape recordings of general public meetings of the legislative body. Written minutes are still required as a permanent record of legislative proceedings. Many local legislative bodies make a tape recording of the proceedings to assist the clerk in preparing the required summary or minutes of the official proceedings for approval by the council or board. If such a tape is made, it must now be retained for the new six year period even if the purpose for tape recording is simply to assist the clerk in preparing minutes. Even though the tape must now be retained for six years, written meeting minutes are still required for every regular and special meetings, except executive sessions (RCW 42.32.030 ).
Different rules apply to quasi-judicial adjudicative proceedings and to public hearings where specific findings are required and a record may need to be made for judicial review. Washington courts have held that a verbatim record is required and even a close paraphrase of the proceedings is not sufficient where it becomes necessary to prepare an adequate record for review. Although other methods of reporting are possible to obtain a verbatim transcript, the potential need for a verbatim transcript essentially means an audio recording is required for any hearing involving testimony upon which the legislative body will base its decision and which will become part of the record in the event of judicial review. If a verbatim transcript of the tapes is prepared and certified, the required retention period for the audio tapes may be reduced. If there is any question over whether a tape needs to be made, consideration might be given to making a tape recording simply to avoid a court subsequently vacating the action due to lack of an adequate record for review. In addition, the courts have upheld actions even where the formal written findings were found inadequate to support the decision, where the decision was supported by oral findings contained in the tapes of the proceeding. If you have any questions on whether audio tapes need to be made of particular hearings or proceedings, you should discuss the issue with your county prosecutor or city attorney.
- If our legislative body wants to discontinue the practice of taping official proceedings as an aid to the preparation of official minutes, is any action necessary?
Probably. If the board or council have established a regular practice of taping official proceedings, even if the purpose of the tape is merely to assist the clerk in preparing the official minutes, they would need to take formal action to discontinue the practice of taping meetings.
- If the council or commission makes tapes of its meetings solely as an aid to preparation of the official minutes and the official minutes of a particular meeting have been prepared, approved, and made available for public review, is the county still required to make the tapes available to the public?
Yes. The audio tapes are still "public records" which must be made available for review under the state public records disclosure laws. For more information about Washington's public records disclosure laws, see MRSC publication Public Records Act for Washington Cities and Counties, Report No. 61, May 2007.
- Which record controls, the audio tape or the official summary of proceedings or minutes?
The official record would be the formal minutes which are reviewed and approved by the legislative body in accordance with their adopted rules of procedure. In the event of a conflict between the officially adopted minutes and the audio tape, several legal issues are raised and the situation would need to be evaluated on a case-by-case basis. The official minutes will likely control. The rules of procedure for the legislative body should address correction of official minutes in the event the tape reveals an obvious mistake.
- Must the city disclose a police report containing the details of an alleged criminal offense by a juvenile to the father of the crime victim?
Yes. RCW 13.50.050(9) contains an exception to the general rule (see RCW 13.50.050(3)) that records regarding juvenile criminal offenses are confidential, except for the official court file:
(9) Upon request of the victim of a crime or the victim's immediate family, the identity of an alleged or proven juvenile offender alleged or found to have committed a crime against the victim and the identity of the alleged or proven juvenile offender's parent, guardian, or custodian and the circumstance of the alleged or proven crime shall be released to the victim of the crime or the victim's immediate family.
Under this exception, any member of the crime victim's immediate family could request and must be provided with this information.
- Could a city or county allow an insurance company to obtain copies of an arson investigation report while the investigation is on-going but deny its release to others?
Investigative reports are exempt from disclosure requirements during the course of an investigation. It is, though, an exemption, rather than a prohibition [see WAC 44-14-06002]. So, a city or county could, in its discretion, release such a report to an insurance company, which obviously has an interest in the subject. The record remains exempt, though, and so, release to the insurance company would not require that the report be released to everyone. Obviously, once the investigation is concluded, the exemption would be lost, and the report would be available for review and copying by others.
- Is a real estate appraisal subject to public disclosure?
RCW 42.56.260 provides:
Except as provided by chapter 8.26 RCW, the contents of real estate appraisals, made for or by any agency relative to the acquisition or sale of property, until the project or prospective sale is abandoned or until such time as all of the property has been acquired or the property to which the sale appraisal relates is sold, are exempt from disclosure under this chapter. In no event may disclosure be denied for more than three years after the appraisal.
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So, real estate appraisals are protected from disclosure while the sale or purchase is pending. Once the sale is complete, or the sale is abandoned, the appraisal must be disclosed upon request. In no case is it protected for more than three years after the appraisal.
- How long are job interview notes to be retained?
According to the local government common records retention schedule, section 4.10.11 (p. 155 of 2008 version) published by the Office of the Secretary of State, Division of Archives and Records Management, the following should be retained for three years:
RECRUITMENT FILES - Documents recruitment and selection process for each advertised position, including newspaper announcement, job description, working papers/notes, applicant list, interview questions and notes, selection documents, and employee applications.
The three-year requirement is consistent with the limitation of action for EEO discrimination complaints which is set at 3 years. See RCW 4.16.080(2). Test results are also to be retained for three years.
- May the names of police officers be redacted from an investigatory report conducted by the police department into allegations of misconduct?
Yes, even if the investigation concludes that there was misconduct. This is the conclusion in Cowles Publishing Company v. State Patrol, 109 Wn.2d 712 (1988), and that case has not been overturned. In that case, a newspaper had requested a copy of an internal investigation report, which was released with the names of the complaining parties, witnesses, and the police officers investigated redacted. The court analyzed the exemption for specific investigative reports compiled by law enforcement agencies, the nondisclosure of which is essential to effective law enforcement or for the protection of any person's right to privacy. The court found that disclosure of the names of complainants, witnesses, and the police officers investigated did not violate any right to privacy, but it concluded that nondisclosure was essential to effective law enforcement. So, the court upheld the redaction of those names from the investigative report.
This conclusion only applies in the law enforcement field and is not applicable to all personnel investigations conducted by a city or county.
- Is a public records request satisfied if the city or county directs the inquirer to a link on its web site?
The Washington Attorney General's Public Records Act - Model Rules provide that an agency may provide access to a public record by posting it on its web site. If the requestor does not have internet access, the agency may provide access to the record by allowing the requestor to view the record on a specific computer terminal at the agency open to the public.
Despite the availability of the record on the agency web site, a requestor can still make a public records request and inspect the record or obtain a paper copy of it by paying the appropriate per-page copying charge.
See WAC 44-14-03004 for more information on this issue.
- Are the addresses and phone numbers of planning commission members exempt from disclosure?
A citizen has objected to the city’s disclosure of the addresses and phone numbers of planning commission members, citing as authority RCW 42.56.250(3), which exempts from disclosure the addresses and phone numbers of volunteers and employees of an agency.
It's our opinion that the language "employees or volunteers of a public agency" in that exemption covers officers of a public agency, which would include planning commission members. Arguably, they could also be considered to be volunteers, since they typically work without pay and they volunteer to be appointed. We don't think the statute requires that an agency employ some sort of test to determine if a position is that of an employee or officer to determine if the exemption applies.
Of course, the existence of the exemption does not mean that the city is prohibited from disclosure; it just means that it can refuse to disclose.
- Which RCWs or WACs provide that an e-mail is a public record?
For purposes of the Public Disclosure Act, the term "public record" is very broadly defined in RCW 42.56.010(2) and includes:
any writing containing information relating to the conduct of government or the performance of any governmental or proprietary function prepared, owned, used, or retained by any . . . local agency regardless of physical form or characteristics.
RCW 42.56.010(3) contains an equally-broad definition of a "writing":
"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.
Finally, WAC 44-14-03001(1) states directly that “[a]n e-mail is a ‘writing’.”
For more information on this topic, see MRSC’s Public Records Disclosure Web page.
- Are there any requirements that town records be "maintained" on the town premises? For example, since the mayor is the person who deals with personnel issues, can he maintain the personnel files in a location separate from town hall due to the need to access them during non-business hours and for privacy reasons?
Our position is that the records must remain in the office where they are filed, except for limited circumstances or on a temporary basis. WAC 434-615-020 supports this conclusion; it provides in part:
Unless otherwise provided by law, public records must remain in the legal custody of the office in which they were originally filed, which shall be considered the office of record, or shall be destroyed or transferred pursuant to instructions from the state or local records committee as required by Ch. 40.14 RCW. They shall not be placed in the legal or physical custody of any other person or agency, public or private, or released to individuals, except for disposition pursuant to law or unless otherwise expressly provided by law or by these regulations.
This regulation makes it clear that original records should not be allowed to be taken from the office in which they were originally filed, except under certain specific circumstances.
- May the county charge the 15 cents a page copying cost as authorized in state law and also add a charge for staff time spent making copies?
No. RCW 42.56.120 provides that an agency may charge fifteen cents a page for photocopies of public records. This 15 cents already includes the staff time to make the copies.
However, the county is authorized to charge more than fifteen cents a page if it can demonstrate that the actual costs for copying exceed 15 cents. Theoretically, there is no upper limit on this charge except that it can only be based on actual costs. There is more guidance in RCW 42.56.070(7) on what may be included in the actual per page cost. The county may include all costs directly incident to copying, including the actual cost of the paper and the per page cost for use of county copying equipment. The county may include all costs incident to shipping such public records. The county may not include staff salaries, benefits or other administrative or overhead charges, unless those costs are directly related to the actual cost of copying the public records. Staff time to copy and mail the records may be included in an agency's costs. The actual costs cannot, however, include staff time to locate and produce the records for inspection.
Also see WAC 44-14-070 and the comments to WAC 44-14-070.
- Can a city, county or special district print out e-mail records that need to be maintained, and then just delete the actual e-mails?
No. Electronic records, such as e-mails, need to be maintained in the original format. When e-mails are printed metadata is lost. See WAC 44-14-05001.
- Must a city provide the city e-mail addresses of city employees?
Yes, in our opinion, these would have to be provided in response to a public disclosure request. RCW 42.56.250(3) specifically exempts from public disclosure the “personal electronic mail addresses” of public employees, but it does not exempt the work e-mail addresses of public employees. Without an applicable exemption, these e-mail addresses must be disclosed.
- Must a local government provide a list of its employees with position titles and salaries if it is not to be used for commercial purposes?
Yes, local governments are required to provide records containing that information, as it is not exempt from disclosure. The issue of using the information for commercial purposes does not apply to a listing of local government employees, where no home addresses or telephone numbers are provided (as those are exempt from disclosure). The prohibition on providing "lists of individuals" for commercial purposes in RCW 42.56.070(9) is directed at the potential problem of the recipient of the list commercially soliciting from the list - contacting the individuals at their residences. As stated in AGO 1975 No. 15, the intent of this statutory prohibition is:
to prohibit an agency covered by the law from supplying the names of natural persons in list form when the person requesting such information from the public records of the agency intends to use it to contact or in some way personally affect the individuals identified on the list and when the purpose of the contact would be to facilitate that person's commercial activities.
Any such commercial incentive would not be facilitated by providing a list of employees, position titles, and salaries. So, the local government should not ask whether the requester here intends to use the list for commercial purposes.
- Are city and county governments required to appoint a Public Records Officer?
Yes. This requirement is contained in RCW 42.56.580:
(1) Each state and local agency shall appoint and publicly identify a public records officer whose responsibility is to serve as a point of contact for members of the public in requesting disclosure of public records and to oversee the agency's compliance with the public records disclosure requirements of this chapter. A state or local agency's public records officer may appoint an employee or official of another agency as its public records officer.
(2) For state agencies, the name and contact information of the agency's public records officer to whom members of the public may direct requests for disclosure of public records and who will oversee the agency's compliance with the public records disclosure requirements of this chapter shall be published in the state register at the time of designation and maintained thereafter on the code reviser web site for the duration of the designation.
(3) For local agencies, the name and contact information of the agency's public records officer to whom members of the public may direct requests for disclosure of public records and who will oversee the agency's compliance within the public records disclosure requirements of this chapter shall be made in a way reasonably calculated to provide notice to the public, including posting at the local agency's place of business, posting on its internet site, or including in its publications.
So your agency should appoint some person on the staff to serve permanently as public records officer. Of course, this person can and usually does have other responsibilities but they are a contact person for the public in regard to public records requests. This person also has responsibility to insure your agency is following the public records law requirements. The agency also should provide the name and contact information for this person to the public by posting on the agency website or some other place likely to serve as notice.