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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.*
Court Holds Agencies Can Enforce Their Public Records Act Policies
March 2009
By Ramsey Ramerman, Assistant City Attorney, City of Everett
In a recently published opinion, Parmelee v. Clarke, -- Wn. App. --, 2008 WL 5657802 (publication ordered Feb. 2009), Division II of the Court of Appeals gave teeth to the Department of Corrections Public Records Act procedures. The Department's procedures specifically identify the Public Records Officer and provide that all requests should be sent to that officer. The Court held that, because the requester had actual knowledge of those procedures, the requester was required to follow those procedures and make public records requests to the identified officer. Thus, the court dismissed the requester's claims that were based on requests made to other persons.
The opinion is rooted in the statutory language of the Public Records Act. The Act requires agencies to publish their procedures for how they will handle public records requests. RCW 42.56.040. The procedures should help agencies (1) provide full access to records, (2) protect public records from damage, (3) prevent excessive interference with other essential functions, and (4) provide requesters the fullest assistance. RCW 42.56.100.
The Act then provides:
Except to the extent that he has actual and timely notice of the terms thereof, a person may not in any manner be required to resort to, or be adversely affected by, a matter required to be published or displayed and not so published or displayed. RCW 42.56.040(2).
In Parmelee v. Clarke, the Court recognized that, based on the language of section .040(2), if a requester has actual knowledge, then the procedures are enforceable. In other words, and to paraphrase the statute, to the extent a requester has actual and timely notice of the terms of an agency's procedures, the person may be required to follow those procedures.
Practice Tip 1: Include a copy of your agency's Public Records Act policy or the essential information from that policy in every 5-day response.
The crux of Division II's decision was the requester's actual knowledge of the policy and its requirements. To rely on this opinion, an agency should take all reasonable steps to inform the public about its policy. Beyond the obvious practice of making sure the agency policy is easy to find on the website, consider sending a PDF copy of the policy as part of your 5-day response, if you send the response by email. If you send a paper letter, include essential information regarding the policy, such as (1) who the Public Records Officer is, and (2) where your policy requires requests to be sent. This will inform the public and, if necessary, allow you to prove the requester has actual knowledge of your policy.
Practice Tip 2: Make sure your agency's policy is up-to-date.
If an agency's policy contains inaccurate information, the agency cannot enforce its policy. In 2005, the Legislature added new requirements for PRA policies. So, if you haven't updated your PRA policy since then, now is the time.
Practice Tip 3: Make sure your agency is not using its policy to create road blocks for requesters.
Agencies must be cautious not to read too much into Parmelee. Your agency's Public Records Act policy should be used as a funnel to try to guide requesters into using the procedures that will best insure all responsive records are provided in a timely fashion. Agencies should not start ignoring requests every time a requester fails to comply with a particular provision in the agency's policy. Agencies still need to provide the fullest assistance and cannot use their procedures to create road blocks to public disclosure.
Moreover, Parmelee is only a Court of Appeals' opinion (a petition for review has been filed) and only addresses one distinct question - whether an agency can require requesters to send requests to a designated person. Agencies should only consider invoking the Parmelee holding in situations similar to those in Parmelee. If a repeat requester refuses to make requests to the person designated in your policy, then at some point, the agency may want to inform the requester that only requests sent to the designated person will be honored. There may also be other situations where a requester is violating an agency's policy in a way that interferes with the agency's other essential functions, when the agency may also insist on following its known procedures. But any such action should be guided by legal counsel.
Finally, remember that these are public records and any actions that appear obstructionist, even if legally defensive, will make your agency look less open and create distrust.
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.