MRSC has joined with Ramsey Ramerman, Assistant City Attorney, City of Everett, to bring you the "Open Government Advisor." The Open Government Advisor will feature periodic articles focusing on open government issues, including issues related to the Public Records Act, Open Public Meetings Act and Public Disclosure Act.*

Supreme Court Underscores the Requirement to Produce an Exemption Log under the Public Records Act

February 2009

By Ramsey Ramerman, Assistant City Attorney, City of Everett

In its most recent public records act decision, Rental Housing Authority v. City of Des Moines, 2009 WL 146541 (Jan. 22, 2009), the Supreme Court ruled that the City of Des Moines did not trigger the one-year statute of limitations for Public Records Act claims until after the City had produced its “PAWS II” exemption log.¹ The Court held that an earlier letter listing specific categories of withheld records was insufficient. In light of this opinion, local governments should be sure to include a complete exemption log whenever they withhold exempt records.

A few facts are necessary to understand this holding. On August 17, 2005, the City produced almost 600 pages of records to RHA and included a letter that contained a description of categories of records it was withholding and the legal bases for withholding these records. It did not, however, list each individual record. Eight months later, on April 14, 2006, the City produced an exemption log that detailed each record the City had withheld. The requester filed suit January 16, 2007, more than one year after the City’s first letter, but within one year of the complete exemption log.

The statute of limitations provision in the PRA provides, “Actions under this section must be filed within one year of the agency’s claim of exemption or the last production of a record on a partial or installment basis.” RCW 42.56.550(6). In 2005, the Legislature shortened the period from five years in response to a case where a requester waited for several years to make a claim, which increased the mandatory daily penalties. The issue in the case was whether the statute of limitations began to run from the City’s claim in the August 17, 2005 letter that the records were exempt or the April 14, 2006 exemption log that detailed those records.

The PRA requires that agencies provide “a statement of the specific exemption authorizing the withholding of the record (or part) and a brief explanation of how the exemption applies to the record withheld.” RCW 42.56.210(3). In PAWS II, the Supreme Court determined that this explanation should include “[1] the type of record, [2] its date and [3] number of pages, and, unless otherwise protected, [4] the author and [5] recipient, or if protected, other means of sufficiently identifying particular records without disclosing protected content.”

In RHA, the Supreme Court held that because the City’s August 17 letter did not comply with the requirements of PAWS II, the August 17 letter was not a “claim of exemption” sufficient to trigger the statute of limitations. Instead, the statute of limitations was triggered by the production of the April 14 PAWS II exemption log. The lawsuit was filed within one year of April 14, and thus the suit was timely.

Exemption log requirements

There is a clear lesson from this opinion – local governments should always produce an exemption log that complies with PAWS II. At a minimum, the log should contain the following six pieces of information:

1. Type of document/description of document
2. Date
3. Author/Sender
4. Recipient (including CCs) if applicable
5. Statutory exemption and brief explanation for withholding (see note below)
6. Number of pages

Here is a sample log. Note: the “brief explanation for withholding” requires local governments to provide enough facts to allow the requester to understand how the statutory exemption applies to the withheld record. If it is a correspondence with an attorney, then not much is required. But other exemptions may require a more extensive “brief explanation.”

Ramsey Ramerman, is an assistant city attorney with the City of Everett, where he assists the City with open government issues and appeals. In addition to his work at the City, Ramsey regularly provides open government training for local governments and presents at conferences on open government issues. Ramsey is also one of the founders of the recently formed Washington Association of Public Records Officers. Finally, Ramsey serves as the local government representative on the State Sunshine Committee, currently reviewing the over 300 exemptions to the Public Records Act. Prior to joining the City of Everett, Ramsey practiced at Foster Pepper PLLC as part of the firm's Municipal Group.

*The Articles appearing in the "Open Government" column represent the opinions of the authors and do not necessarily reflect those of the Municipal Research & Services Center.