Public Records Disclosure

[The citations in this article have been changed to match the recodification done through the 2006 Public Records Act.]

Recent newspaper articles have raised issues concerning the adequacy of local government responses to requests for disclosure of public records. The public records disclosure statutes are confusing at times, but some basic principles can be distilled:

1. Most of the city and county records are public records, including things written on paper or recorded electronically, photographs, audio recordings, survey documents, construction plans, etc. [See the definitions of "public record" and "writing" in RCW 42.17.020.]
2. A city or county agency is required to respond in writing within five days to any public records disclosure request. The response can either (1) provide for inspection and/or copying of the records; (2) acknowledge receipt of the request and provide an estimate of the time needed to produce the records; or (3) deny the request. [See RCW 42.56.520.] The statute also lists the permissible reasons for taking more than five days to actually produce the documents.
3. City and county agencies cannot charge for the time required to locate a public record, but they can charge for the reasonable costs if a person requests copies of public records. The maximum per page cost for photocopies can only exceed fifteen cents if the agency has determined that its actual costs exceed fifteen cents per page. [See RCW 42.56.070(7) & (8) & 42.56.120.]
4. Some public records are prohibited from being disclosed (most personal tax records, medical records, etc.) and some are exempted from disclosure (certain active criminal investigation files, preliminary drafts of agency policies, etc). The primary exemptions are listed in RCW 42.56.230 through 42.56.480, but the disclosure prohibitions are located at numerous places throughout the state statutes.
5. If a portion of a public record is exempt from disclosure or prohibited from being disclosed, the portion that is exempt or prohibited should be redacted (whited-out or some other such technique) and the rest of the document disclosed.
6. Whenever a city or county agency refuses to disclose a record or a portion of a record, the agency must provide a statement of the specific exemption relied upon and a brief explanation of how the exemption applies to the record withheld. [See RCW 42.56.210(2).]
7. Local governments may not ask the reason for the disclosure request, except that when the request is for a list of persons, the agency should ask whether it is to be used for a commercial purpose. If such a list is to be used for a commercial purpose, disclosure should be denied. [See RCW 42.56.080.]
8. Local governments must respond to requests for disclosure received by mail. [See RCW 42.56.080.]
9. Local governments are not required to create documents in order to respond to a request for certain information. Rather, they must produce existing documents for review and copying.
10. Local governments are not required to compile information from various documents so that information is in a form that is more useful to a requestor.
11. There is statutory immunity from suit for city and county officials or employees for any loss or damage based upon the release of a public record if the official or employee acted in good faith in attempting to comply with the state public record disclosure act. [See RCW 42.56.060.]

Electronic records and databases create a variety of unique disclosure problems. For example, many agencies now maintain various electronic mailing lists. There is a specific prohibition on disclosure of lists of individuals that are requested for commercial purposes. [See RCW 42.56.070(9).]

Recommendations:

1. Check to make sure that your city or county has adopted procedures for handling public records disclosure requests. City and county departments that operate with some degree of autonomy should make sure that their department's procedures are consistent with the overall county policies and procedures. City and county procedures should include a statement of the charges for the copying of public records. [See RCW 42.56.120.] See item #3, above.
2. Local governments are required to either maintain an index of their public records or publish a formal order explaining why maintaining such an index would be unduly burdensome. [See RCW 42.56.070(3) & (4).] Has your agency complied?
3. Local governments are required to maintain a list of the exemptions (other than those listed in Chapter 42.56 RCW) relied upon by the agency to deny disclosure of public records maintained by the agency. [See RCW 42.567.070(2).] Has your agency complied?
4. Local governments should periodically train employees who handle requests for disclosure of public records.
5. Whenever you are unsure about whether a record should be disclosed, review the issue with your supervisor, city attorney, or in the case of a county, your county prosecutor's office. There are substantial financial penalties for not responding in a timely or complete manner to requests for public disclosure. [See RCW 42.56.550(4).]

Resources:

1. Advice from your city attorney or county prosecutor's office!
2. The Attorney General's "Open Government" website is an excellent resource. Of particular interest is the Public Records and Open Public Meetings page.
3. MRSC has a publication titled "Public Records Act for Washington Cities and Counties." The appendices of the publication provide sample procedures and forms. This publication is viewable in Adobe Acrobat (1.10 MB).
4. The MRSC web site has a section devoted to public records disclosure issues. The information on the web site is periodically updated. The web site includes sample disclosure policies, summaries of relevant recent court cases, and links to additional resources. The public disclosure laws apply equally to counties, cities and towns, so most of the sample policies will be useful for all jurisdictions.
5. Call one of the MRSC legal consultants for advice or submit your question online.