Corel Office Document

Public Records Act

for Washington Cities, Counties,

and Special Purpose Districts

R E P O R T N U M B E R 6 1 Revised June 2012 Municipal Research and Services Center

REPORT NUMBER 61 Revised June 2012

Public Records Act

for Washington Cities, Counties,

and Special Purpose Districts

permitted under the Copyright Act of 1976, no part of

this publication may be reproduced or distributed in any

form or by any means or stored in a database or retrieval

system without the prior written permission of the publisher;

however, governmental entities in the state of Washington

are granted permission to reproduce and distribute this

publication for official use.

Municipal Research and Services Center

2601 Fourth Avenue, Suite 800

Seattle, WA 98121-1280

www.mrsc.org

[email protected]

206.625.1300

Updates to our publications can be found on our web site at

http://www.mrsc.org/publications/mrscpubs.aspx.

Foreword

Washington’s public disclosure laws apply to all Washington governments, including counties, cities, towns,

and special purpose districts. We first produced this publication in 1996 due to the large volume of inquiries

that the Municipal Research and Services Center (MRSC) received over the years concerning public

disclosure. Since that time, numerous exemptions have been added to the public disclosure statutes and the

courts have issued many decisions which affect the application of the statutes. We updated this publication

in 2004 to reflect those changes.

Effective July 1, 2006 almost all of the public records disclosure statutes, now called the Public Records Act,

were recodified, necessitating another revision of this publication in 2006. The disclosure statutes used to be

codified in chapter 42.17 RCW, but were recodified to a new chapter 42.56 RCW. Conversion tables for the

statutes are in Appendix E of this publication and will help you understand references to the statutory

numbering you might come across in earlier court decisions and other documents discussing the public

records laws. Also included in the conversion tables, and in the main text of this publication, are citations to

the Public Records Act Model Rules (which now include rules specifically related to electronic records).

Those Model Rules are located in the Washington Administrative Code. The full text of the Model Rules is

also provided, as Appendix D.

This 2009 revision incorporates references to court decisions occurring since the 2006 revision, along with

some statutory changes. Additionally, this revision deals with the increasingly important topic of electronic

document disclosure and archiving.

This material is intended for use by local government employees and officials, and we have presented it in

a format that we hope will be easy to use and understand. For further research, we have provided the reader

with footnotes and appendices.

Because the legislature routinely updates the Public Records Act statutes, and because the courts issue many

decisions each year interpreting the statutes, MRSC has chosen to update this publication as needed. The

electronic version available here is our latest version. If you like to use a printed copy, we recommend that

you print a new copy periodically, so that you have the benefit of the most recent updates.

Special acknowledgment is given to Jim Doherty, Legal Consultant, who prepared the original publication

and oversaw this revision.

Contents

Chapter 1

Chapter 2

Chapter 3

Chapter 4

Chapter 5

Chapter 6

Chapter 7

Chapter 8

Chapter 9

Chapter 10

Appendix A

Appendix B

Appendix C

Appendix D

Appendix E

Appendix F

Introduction

In 1972 the voters in state of Washington adopted Initiative 276, which required that most records maintained

by state, county, and city governments be made available to members of the public. The public disclosure

statutes have been frequently revised over the past three decades. The latest revision of the disclosure statutes

are found in chapter 42.56 RCW, and are referred to as the Public Records Act.

Although the public

records disclosure statutes do not apply to judicial records (case files),

the legislature has specifically

extended their coverage to state legislative records.

In addition, the public records disclosure statutes apply

equally to “every county, city, town, municipal corporation, quasi-municipal corporation, or special purpose

district” or “any office, department, division, bureau, board, commission, or agency thereof, or other local

public agency.”

This publication will refer to these units of government collectively as “local government”

or “local agency.”

This publication discusses all of the statutory disclosure exemptions which are relevant to local governments,

as well as the mandatory procedures for responding to a public records disclosure request. Throughout the

text are questions and answers relating to diverse public disclosure issues; they reflect the broad range of

public disclosure questions answered by MRSC over the years. Because this publication is directed toward

a wide audience of local government officials and employees, many of the citations to legal authority are

located in the footnotes, rather than in the body of the text.

Appendix A contains selected case law and research references which are intended to provide assistance when

more detailed information or research is needed. Appendix B has sample local government policies,

ordinances, and forms related to public disclosure. Appendix C is a list of state laws, other than those in

chapter 42.56 RCW, affecting confidentiality and disclosure of public records. Appendix D is the full text

of the Public Records Act Model Rules. Appendix E has the RCW conversion tables that will assist with the

2006 statutory renumbering (included with the conversion tables are citations to the corresponding sections

of the Public Records Act Model Rules).

Do not be surprised if you have a public disclosure question which is not discussed in this publication.

Disclosure issues are almost as numerous as the public records in your custody. If you need additional

assistance when analyzing disclosure questions, please contact your legal counsel or MRSC.

Concerning the Public Records Act Model Rules

In 2005, the state legislature directed the Attorney General to adopt advisory “model rules” for state and local

agencies.

These Model Rules are now published in the Washington Administrative Code at chapter 44-14.

Though the current version of the Model Rules deals mostly with disclosure procedures, there are instructive

comments regarding some specific disclosure exemptions, such as the right to privacy, the attorney-client

privilege, and the deliberative process exemption. The legislature granted the Attorney General the discretion

to periodically revise the Model Rules.

Cities and counties should review the Model Rules and determine whether they wish to incorporate some or

all of the Model Rules into their own local disclosure procedures or policies.

The WAC sections quoted below are taken from the “Introductory Comments” to the Model Rules, and

provide some explanation for their purpose and role.

WAC 44-14-00001 - Statutory Authority and purpose.

. . . The overall goal of the model rules is to establish a culture of compliance among agencies and

a culture of cooperation among requestors by standardizing best practices throughout the state. The

attorney general encourages state and local agencies to adopt the model rules (but not necessarily the

comments) by regulation or ordinance.

WAC 44-14-00002 - Format of model rules.

We are publishing the model rules with comments. The comments have five-digit WAC numbers

such as WAS 44-14-04001. The model rules themselves have three-digit WAC numbers such as 44-

14-040.

The comments are designed to explain the basis and rationale for the rules themselves as well as to

provide broader context and legal guidance. . . .

WAC 44-14-00003 - Model rules and comments are nonbinding.

The model rules, and the comments accompanying them, are advisory only and do not bind any

agency. Accordingly, many of the comments to the model rules use the word “should” or “may” to

describe what an agency or requestor is encouraged to do. The use of the words “should” or “may”

are permissive, not mandatory, and are not intended to create any legal duty.

While the model rules and comments are nonbinding, they should be carefully considered by

requestors and agencies. The model rules and comments were adopted after extensive statewide

hearings and voluminous comments from a wide variety of interested parties.

Public Records Exemption Accountability Committee

In 2007 the legislature created a public records exemption accountability committee. This broad-based

group is charged with reviewing the existing exemptions and annually submitting their recommendations to

the governor, attorney general, and to the appropriate committees of the house of representatives and the

senate.

Government Records –

Local Government’s Duty to Provide Access

Local government agencies are required, within five days of receiving a public disclosure request, to respond

by (1) providing the requested record; (2) providing an internet address and link on the agency’s web site to

the specific records requested, except that if the requestor notifies the agency that he or she cannot access the

records through the internet, then the agency must provide copies of the record or allow the requestor to view

copies using an agency computer; (3) acknowledging receipt of the request and providing a reasonable

estimate of the time required to fill the request; or (4) denying the request.

Given limited budgets and staff,

local agencies tend to have all available resources invested in day-to-day running of the agency. Requests

for disclosure of public records often occur at inconveniently busy times. Despite the extra burden that

disclosure requests place on busy agency staff, every government official and employee should be reminded

of the strongly-worded language that was incorporated into the public disclosure act:

The people of this state do not yield their sovereignty to the agencies that serve them. The people,

in delegating authority, do not give their public servants the right to decide what is good for the

people to know and what is not good for them to know. The people insist on remaining informed so

that they may maintain control over the instruments they have created. The public records

subdivision of this chapter shall be liberally construed and its exemptions narrowly construed to

promote this public policy.

When passed in 1972, Initiative 276 contained a similar public policy statement:

It is hereby declared by the sovereign people to be the public policy of the state of Washington: . .

. (11) That, mindful of the right of individuals to privacy and of the desirability of the efficient

administration of government, full access to information concerning the conduct of government on

every level must be assured as a fundamental and necessary precondition to the sound governance

of a free society.

Both the state legislature and the voters of Washington are clear about their position on public disclosure:

the citizens of this state have a right to know almost all of the details of how local and state governments are

run. The courts have enforced this policy by liberally construing the Act’s disclosure provisions and narrowly

construing its exemptions.

Working for local government is like working inside a goldfish bowl. Almost everything is open to public

scrutiny. It is the duty of agency staff to respond to public disclosure requests efficiently and graciously since

the public is not only your client, but also your employer. Although agency staff may become annoyed at

a disclosure request because of the time it takes to locate records, or because the records may disclose a

mistake or improper action, the following statutory provision should serve as a reminder of the importance

of open government:

Courts shall take into account the policy of this chapter that free and open examination of public

records is in the public interest, even though such examination may cause inconvenience or

embarrassment to public officials and others.

From a practical standpoint, dealing with requests in a responsive and courteous manner minimizes public

distrust of government, thus preventing a public disclosure request from escalating into an expensive and time

consuming legal event.

Acting in Good Faith – Disclosing a Record in Error

All requests for public records must be examined carefully, and all requested records must be provided except

for those records which are clearly exempt from disclosure. A court will look favorably on a good faith

attempt to comply with the public disclosure act if an employee discloses a public record, and later analysis

or court decision shows it should not have been disclosed. In such a circumstance, a local government may

be immune from liability:

No public agency, public official, public employee, or custodian shall be liable, nor shall a cause of

action exist, for any loss or damage based upon the release of a public record if the public agency,

public official, public employee, or custodian acted in good faith in attempting to comply with the

provisions of this chapter.

In order to act in good faith, local government employees and officials making disclosure decisions must be

familiar with the public disclosure requirements and the many exemptions contained in the statutes.

Acting in Good Faith – Penalties, Attorney’s Fees, and Costs

Acting in “good faith” will not absolve an agency from the imposition of court costs, attorney fees, and

potential penalties for erroneously withholding public records, but can be taken into consideration by a judge

when determining the amount of penalties. RCW 42.56.550(4) provides:

Any person who prevails against an agency in any action in the courts seeking the right to inspect

or copy any public record or the right to receive a response to a public record request within a

reasonable amount of time shall be awarded all costs, including reasonable attorney fees, incurred

in connection with such legal action. In addition, it shall be within the discretion of the court to award

such person an amount not to exceed one hundred dollars for each day that he or she was denied the

right to inspect or copy said public record.

Note that prior to July of 2011 the above statute required that the minimum penalty for wrongfully

withholding a record was $5 per day. Many of the court decisions dealing with penalties stressed that

mandatory provision. Keep that statutory amendment in mind if you review prior court decisions or articles

dealing with PRA penalties.

Legal advice should be sought in situations where statutory requirements seem unclear. Fortunately, court

decisions and attorney general opinions are available for guidance in this complex field. The Public Records

Act statutes, along with the Open Public Meetings Act,18 provide the foundation for open government. Such

openness encourages public participation and awareness, and helps dispel fears that local governments are

not responsible or responsive to the people.

What Are Public Records?

A “public record” is defined to include,

. . . 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.

“Writing” is also defined in the disclosure statutes:

“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.

Whether private business records can relate to “conduct of government” has not been addressed by

Washington courts.

However, the Washington Supreme Court has held that where “records relate to the

conduct of . . . [a public agency] . . . and to its governmental function. . . . [T]he records are ‘public records’

within the scope of the public records act.”

Local governments are not required to create documents in order to comply with a request for specific

information.

Rather, they must produce existing records for review and copying. Also, local governments

are not obligated to compile information from various records so that information is in a form that is more

useful to the requestor. For example, if someone wants records concerning the time it took the city fire

department to respond to residential fires occurring between midnight and 6:00 a.m. over a two-year period,

the city only needs to provide copies of existing records.

City employees are not required to do research

for private individuals.

Electronic Data and Records

Increasing amounts of public information are now contained in electronic format, rather than on paper. Public

disclosure laws apply to electronic data.

The state legislature formed a Public Information Access Policy

Task Force in 1994 to examine the issue of providing broad public access to government records by electronic

means. After reviewing the recommendations of the task force, the legislature passed legislation strongly

encouraging expansion of electronic access to public records:

Broad public access to state and local government records and information has potential for

expanding citizen access to that information and for improving government services. Electronic

methods for locating and transferring information can improve linkages between and among citizens,

organizations, businesses, and governments. Information must be managed with great care to meet

the objectives of citizens and their governments.

It is the intent of the legislature to encourage state and local governments to develop, store, and

manage their public records and information in electronic formats to meet their missions and

objectives. Further, it is the intent of the legislature for state and local governments to set priorities

for making public records widely available electronically to the public.

E-mail in particular has been the topic of many questions regarding public records. According to the State

Archivist, who is responsible for creating public record retention guidelines,

Individual E-mail messages may be public records with legally mandated retention requirements, or

may be information with no retention value. E-mail messages are public records when they are

created or received in the transaction of public business and retained as evidence of official policies,

actions, decisions, or transactions. Such messages must be identified, filed, and retained just like

records in other formats.

For guidance, the State Archivist lists the following e-mail messages that are usually public records and must

be retained:

• Policy and procedure directives.

• Correspondence or memoranda related to official public business.

• Agendas and minutes of meetings.

• Documents relating to legal or audit issues.

• Messages which document agency actions, decisions, operations and responsibilities.

• Documents that initiate, authorize or complete a business transaction.

• Drafts of documents that are circulated for comment or approval.

• Final reports or recommendations.

• Appointment calendars.

• E-mail distribution lists.

• Routine information requests.

• Other messages sent or received that relate to the transaction of local government business.

Conversely, the State Archivist lists the following e-mail messages which are usually administrative materials

with no retention value:

• Information-only copies, or extracts of documents distributed for reference or convenience, such as

announcements or bulletins.

• Phone message slips that do not contain information that may constitute a public record.

• Copies of published materials.

• Informational copies.

• Preliminary drafts.

• Routing slips.

Additional information and guidance for determining whether e-mail is a public record can be found in

Records Management Guidelines for All Local Government Agencies, a publication by the State Archives

Division of the Washington Secretary of State, and available online at

http://www.secstate.wa.gov/archives/gs.aspx.

The Model Rules have been amended to include a section on electronic records. See WAC 44-14-050, and

the comments to that provision found at WAC 44-14-05001 through C 44-14-05005. The full text of the

Model Rules is included in appendix D of this publication. We recommend that you read those provisions

carefully. The same basic requirements for responding to paper records also apply to electronic records.

Determining What Must Be Disclosed

Under the Public Records Act

There are three questions a local agency must consider when responding to a request for disclosure. First,

are the requested records exempt from disclosure or prohibited from being disclosed? Second, if they are

exempt, can information be deleted from the record so it might still be released? Third, if the records are not

exempt, should information be deleted that would constitute an unreasonable invasion of privacy if disclosed?

Specific Exemptions and Prohibitions

All agency records are available for review by the public unless they are specifically exempted or prohibited

from disclosure by the statutes. If no statutory exemption or prohibition covers the requested record, it must

be disclosed.

This section discusses exemptions listed in RCW 42.56.230 through 42.56.480. However,

there are numerous other exemptions and disclosure prohibitions located elsewhere in the statutes that are

relevant for local governments. Appendix C of this publication contains a listing of the many disclosure

exemptions and prohibitions that are not located in the Public Records Act (chapter 42.56 RCW). Some of

those additional exemptions and prohibitions are discussed in chapter 5 of this publication.

The public disclosure act provides that exemptions are to be narrowly construed; consequently, the courts

have consistently ruled that only information specifically exempted can be withheld from public disclosure.

The italicized statutory sections below are taken directly from the statutes and pertain to local governments.

The records designated below are exempt from disclosure.

RCW 42.56.230 Personal information.

The following personal information is exempt from public inspection and copying under this chapter:

(1) Personal information in any files maintained for students in public schools, patients or

clients of public institutions or public health agencies, or welfare recipients.

(2) Personal information, including but not limited to, addresses, telephone numbers, personal

electronic mail addresses, social security numbers, emergency contact and date of birth information

for a participant in a public or nonprofit program serving or pertaining to children, adolescents, or

students, including but not limited to early learning or child care services, parks and recreation

programs, youth development programs, and after-school programs. Emergency contact information

may be provided to appropriate authorities and medical personnel for the purpose of treating the

individual during an emergency situation;

This exemption, which became effective in January 2012, applies to contact information for minors who may

be participating in programs offered by local government agencies. In the past such information (except for

social security numbers) had to be disclosed.

(3) Personal information in files maintained for employees, appointees, or elected officials of

any public agency to the extent that disclosure would violate their right to privacy.

This “personal information” exemption concerns personnel files. Since some of the information in employee

personnel files may be protected by the employee’s right to privacy, careful scrutiny should precede any

decision to disclose those records. Files of retired employees are also covered by this provision.

Additional

analysis of personnel records disclosure and right to privacy issues are found later in this chapter and in

chapter 7.

(4) Information required of any taxpayer in connection with the assessment or collection of any

tax if the disclosure of the information to other persons would (i) be prohibited to such persons by

RCW 84.08.210, 82.32.330, 84.40.020, or 84.40.340 or (ii) violate the taxpayer’s right to privacy

or result in unfair competitive disadvantage to the taxpayer.

Agencies should be very cautious about the release of any taxpayer information. This exemption does not

prohibit disclosure of basic tax information such as the totals of various tax revenues; it only prohibits

disclosure of information which can be identified with a particular taxpayer.

(5) Credit card numbers, debit card numbers, electronic check numbers, card expiration dates,

or bank or other financial account numbers, except when disclosure is expressly required by

government or other law.

RCW 42.56.240 Investigative, law enforcement, and crime victims.

The following investigative, law enforcement, and crime victim information is exempt from public disclosure

and copying under this chapter:

(1) Specific intelligence information and specific investigative records compiled by investigative,

law enforcement, and penology agencies, and state agencies vested with the responsibility to

discipline members of any profession, the nondisclosure of which is essential to effective law

enforcement or for the protection of any person’s right to privacy;

The Washington Supreme Court has held that an active police investigation file, in its entirety, is exempt from

disclosure under the Act’s “effective law enforcement” exemption, unless the law enforcement agency

decides that specific information is not essential to solving the case.

The court will not second guess a law

enforcement agency’s decision not to disclose information contained in an open investigation file. This

effectively bars challenges to law enforcement agency disclosure determinations with respect to such

materials. Some factors the prosecutor should consider include whether disclosure might inadvertently

compromise apprehension of a suspect, divulge sophisticated police investigative techniques, or disrupt the

sharing of information between law enforcement agencies.

However, if a suspect has already been arrested and the matter referred to the prosecutor for a charging

decision, information contained in the investigative file is disclosable unless disclosure would impede

effective law enforcement. Under these circumstances, the court is more willing to look at what should be

disclosed to the public.

As with any disclosable record, information concerning sexual offenses, some health matters, and certain

other private details can be deleted when disclosing police investigation reports in order to protect a person’s

right to privacy. See the information concerning redaction later in this chapter.

(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. However, all complaints filed with the public disclosure

commission about any elected official or candidate for public office must be made in writing and

signed by the complainant under oath;

The exemption listed here, allows agencies to delete details from police investigation reports which identify

witnesses or victims of crimes, but only if disclosure would endanger any person’s life, physical safety, or

property.

(3) Any records of investigative reports prepared by any state, county, municipal, or other law

enforcement agency pertaining to sex offenses contained in chapter 9A.44 RCW or sexually violent

offenses as defined in RCW 71.09.020, which have been transferred to the Washington association

of sheriffs and police chiefs for permanent electronic retention and retrieval pursuant to

RCW 40.14.070(2)(b);

(4) License applications under RCW 9.41.070; copies of license applications or information on

the applications may be released to law enforcement or corrections agencies, and

The above exemption refers to concealed pistol licenses.

(5) Information revealing the identity of child victims of sexual assault who are under the age

of eighteen. Identifying information means the child victim’s name, address, location, photograph,

and in cases in which the child victim is a relative or stepchild of the alleged perpetrator,

identification of the relationship between the child and the alleged perpetrator.

The intent of this exemption is to allow witnesses and victims of crimes to make statements to police officers

without fear that their identity will be made available to the public. A related statute, RCW 10.97.130,

prohibits the release of the names of juveniles who are victims of sex crimes.

RCW 42.56.250 Employment and licensing.

The following employment and licensing information is exempt from public inspection and copying under this

chapter:

(1) Test questions, scoring keys, and other examination data used to administer a license,

employment, or academic examination;

This exemption enables local governments to keep private their employment testing materials, questions and

answers. This is crucial for local governments which use standardized tests for civil service or other city

recruitment.

(2) All applications for public employment, including the names of applicants, resumes, and

other related materials submitted with respect to an applicant;

This exemption enables individuals to apply for local government employment without worrying about

disclosure of their application, or of the fact that they are seeking employment. This exemption applies to

all non-elective local government positions, including administrative positions, such as city manager, or

professional positions, such as city attorney or city engineer.

The broad wording of this exemption appears to cover not only resumes or application materials of current

job applicants, but also such materials submitted to the local government in connection with current or past

local government employees. There is no case law confirming whether the exemption should be interpreted

so expansively. If the resume and other materials are in a current employee’s personnel file,

RCW 42.56.230(2) would also apply. However, it would be rare that the “right to privacy” protection of that

subsection would apply to the types of information typically contained in resumes and related documents.

This statutory section also protects from disclosure employment application records which contain

information submitted to a local government by prior employers in response to requests for information about

an applicant.

(3) The residential addresses, residential telephone numbers, personal wireless telephone

numbers, personal electronic mail addresses, social security numbers, and emergency contact

information of employees or volunteers of a public agency, and the names, dates of birth, residential

addresses, residential telephone numbers, personal wireless telephone numbers, personal electronic

mail addresses, social security numbers, and emergency contact information of dependents of

employees or volunteers of a public agency that are held by any public agency in personnel records,

public employment related records, or volunteer rosters, or are included in any mailing list of

employees or volunteers of any public agency. For purposes of this subsection, "employees" includes

independent provider home care workers as defined in RCW 74.39A.240;

This is the only disclosure exemption specifically referring to individuals who are working with the local

government in a volunteer capacity. It is conceivable that a court interpreting other disclosure statutes, that

are applicable to records relating to employees, might apply those statutes to volunteers.

(4) Information which identifies a person who, while an agency employee: (i) Seeks advice,

under an informal process established by the employing agency, in order to ascertain his or her

rights in connection with a possible unfair practice under chapter 49.60 RCW against the person;

and (ii) requests his or her identity or any identifying information not be disclosed;

(5) Investigative records compiled by an employing agency conducting a current investigation

of a possible unfair practice under chapter 49.60 RCW or of a possible violation of other federal,

state, or local laws prohibiting discrimination in employment; and

(6) [This subsection is not relevant for local government agencies.]

RCW 42.56.260 Real estate appraisals.

Except as is 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 relates is sold, are exempt from disclosure under this chapter. In no event shall disclosure be

denied for more than three years after the appraisal.

This exemption allows local governments to keep appraisal information away from p

ublic scrutiny while

negotiating a potential purchase or sale. Local government legislative bodies may review and discuss

confidential appraisal information in an executive session,

and the councilmembers or commissioners are

prohibited from disclosing that information.

RCW 42.56.270 Financial, commercial, and proprietary information.

The following financial, commercial, and proprietary information is exempt from disclosure under this

chapter:

(1) Valuable formulae, designs, drawings, computer source code or object code, and research

data obtained by any agency within five years of the request for disclosure when disclosure would

produce private gain and public loss;

Several cases have interpreted this exemption. In one, the Washington Supreme Court found that the cash

flow analysis of port properties prepared for a port’s sole use in negotiations with prospective joint venture

partners was within the research data exemption.

In another case, the court found that a university’s

research data relating to intellectual property was exempt from disclosure.

In both decisions, the requesting

party was denied his public disclosure request, because he would have profited and the government would

have incurred a loss.

By contrast, in a court of appeals decision the court found that documents used by professors and accountants

hired by the city, to perform credit and financial analysis for the city’s loan guarantee for private shopping

center development, were not exempt.

The city was unable to show a public loss resulting from the

disclosure of the requested research.

MRSC has been asked whether this exemption applies to blueprints or other architectural drawings submitted

to a city’s building department for review. It is doubtful that the exemption would often apply, because

disclosure would not necessarily cause both “private gain and public loss.” Also, even though the person who

submitted the materials has a copyright interest in the documents, disclosure is not automatically prohibited.

A court has held that an individual with a copyright interest in public records is not an indispensable party

in an action to compel disclosure, and those requesting copies of the materials may be entitled to the records

if the facts meet the “fair use doctrine.”

Consequently, MRSC has recommended that when there is a

disclosure request for these types of materials, the agency should immediately notify the person who

submitted the documents or architectural drawings to allow the person with a copyright interest the option

of seeking a court order prohibiting disclosure.

In connection with the public bidding process, local governments often obtain information which bidders

would not voluntarily divulge to their competitors. Such information may be exempt, if the “public loss”

factor can be met.

In any event, it would be wise to promptly notify a bidder if the city receives a request

for such records.

[The exemptions listed in subsections 2 through 11 of RCW 42.56.270 have limited applicability to local

government records.]

RCW 42.56.280 Preliminary drafts, notes, recommendations, intra-agency memorandums.

Preliminary drafts, notes, recommendations, and intra-agency memorandums in which opinions are

expressed or policies formulated or recommended are exempt under this chapter, except that a

specific record shall not be exempt when publicly cited by an agency in connection with any given

action.

This exemption applies to records connected with the deliberative process. Only records containing opinions

or recommendations are exempt. Factual materials which are being considered as background material on

a particular issue or problem are not exempt. For example, if a city treasurer or finance officer prepares a

financial report for the mayor detailing the status of the city’s expenditures for the current budget year, that

document is not exempt from disclosure. Conversely, if that report contains recommendations for fiscal

policy changes, any portions containing the recommendations would be exempt from disclosure. Also,

memos concerning possible fiscal policy changes written between a mayor, finance officer, or department

heads are exempt. This exemption does not apply after the policies or recommendations set forth in the

requested document(s) have been implemented.

The Washington Supreme Court has determined that before an agency is entitled to rely on this exemption,

it must show (1) that the records contain pre-decisional opinions or recommendations of subordinates

expressed as part of a deliberative process; (2) that disclosure would be injurious to the deliberative or

consultative function of the process; (3) that disclosure would inhibit the flow of recommendations,

observations, and opinions; and (4) that the materials covered by the exemption reflect policy

recommendations and opinions and not the raw factual data on which a decision is based.

A subsequently decided case has discussed how this “deliberative process” exemption would apply to a

preliminary list of issues to be addressed in collective bargaining negotiations.

RCW 42.56.290 Agency party to controversy.

Records which are relevant to a controversy to which an agency is a party but which records would

not be available to another party under the rules of pretrial discovery for causes pending in the

superior court are exempt from disclosure under this chapter.

This exemption concerns attorney work product. The term “controversy” refers to pending litigation,

threatened litigation, and completed litigation.

Whenever a local government is involved in a current or

potential legal controversy, disclosure of any related documents should be discussed and reviewed carefully

with the local government attorney.

The Attorney General has posted a “guidance document” concerning the attorney-client privilege and the

work product doctrine on the Attorney General’s web page dealing with the Model Rules – see

www.atg.wa.gov/records/modelrules.

RCW 42.56.300 Archeological sites.

Records, maps or other information identifying the location of archaeological sites in order to avoid

the looting or depredation of such sites are exempt from disclosure under this chapter.

RCW 42.56.310 Library records.

Any library record, the primary purpose of which is to maintain control of library materials, or to

gain access to information, that discloses or could be used to disclose the identity of a library user

is exempt from disclosure under this chapter.

RCW 42.56.320 Educational information. [Not relevant for cities and counties.]

RCW 42.56.330 Public utilities and transportation.

The following information relating to public utilities and transportation is exempt from disclosure under this

chapter: [Subsection (1) is not relevant for local government agencies.]

(2) The residential addresses and residential telephone numbers of the customers of a public

utility contained in the records or lists held by the public utility of which they are customers, except

that this information may be released to the division of child support or the agency or firm providing

child support enforcement for another state under Title IV-D of the federal social security act, for

the establishment, enforcement, or modification of a support order.

(3) The names, residential addresses, residential telephone numbers, and other individually

identifiable records held by an agency in relation to a vanpool, carpool, or other ride-sharing

program or services; however, these records may be disclosed to other persons who apply for ride-

matching services and who need that information in order to identify potential riders or drivers with

whom to share rides;

(4) The personally identifying information or current or former participants or applicants in a

paratransit or other transit service operated for the benefit of persons with disabilities or elderly

persons;

(5) The personally identifying information of persons who acquire and use transit passes ….;

(6) [Deals with motor carrier intelligent transportation system information - not relevant for local

government agencies.]

(7) The personally identifying information of persons who acquire and use transponders or other

technology to facilitate payment of tolls ....

RCW 42.56.335 Public utility districts and municipally owned utilities – Restrictions on access by law

enforcement authorities.

The above subsection concerns police agencies’ inspection of electrical consumption records that might

indicate a drug growing operation in a particular residence or structure.

RCW 42.56.340 Timeshare, condominium, etc. owner lists.

This exemption relates to information held by the state department of licensing.

RCW 42.56.350 Health professionals.

This exemption deals with information about health care professionals held by the state department of health.

RCW 42.56.360 Health care.

(1) The following health care information is exempt from disclosure under this chapter:

[Subsections (a) through (e) and (g) deal with information held by the state board of health or state board

of pharmacy, and are not relevant for local governments.]

(f) Except for published statistical compilations and reports relating to infant mortality review studies

that do not identify individual cases and sources of information, any records or documents obtained,

prepared, or maintained by the local health department for the purposes of an infant mortality review

conducted by the department of health under RCW 70.05.170. . . .

(2) Chapter 70.02 RCW applies to public inspection and copying of health care information of patients.

RCW 42.56.370 Domestic Violence Program, rape crisis center clients.

Client records maintained by an agency that is a domestic violence program as defined in RCW 70.123.020

or 70.123.075 or a rape crisis center as defined in RCW 70.125.030 are exempt from disclosure under this

chapter.

RCW 42.56.380 Agriculture and livestock.

This exemption deals with information held by state agencies, not local governments.

RCW 42.56.390 Emergency or transitional housing.

Names of individuals residing in emergency or transitional housing that are furnished to the department of

revenue or a county assessor to substantiate a claim for property tax exemption under RCW 84.36.043 are

exempt from disclosure under this chapter.

RCW 42.56.400 Insurance and financial institutions.

This exemption concerns records held by state agencies, not local governments.

RCW 42.56.410 Employment security department records.

Records maintained by the employment security department and subject to chapter 50.13 RCW if provided

to another individual or organization for operational, research, or evaluation purposes are exempt from

disclosure under this chapter.

RCW 42.56.420 Security.

The following information relating to security is exempt from disclosure under this chapter:

(1) Those portions of records assembled, prepared, or maintained to prevent, mitigate, or respond

to criminal terrorist acts, which are acts that significantly disrupt the conduct of government or of

the general civilian population of the state or the United States and that manifest an extreme

indifference to human life, the public disclosure of which would have a

substantial likelihood of

threatening public safety, consisting of:

(a) Specific and unique vulnerability assessments or specific and unique response or

deployment plans, including compiled underlying data collected in preparation of or

essential to the assessments, or to the response or deployment plans; and

(b) Records not subject to public disclosure under federal law that are shared by federal or

international agencies, and information prepared from national security briefings provided

to state or local government officials related to domestic preparedness for acts of terrorism.

(2) Those portions of records containing specific and unique vulnerability assessments or specific

and unique emergency and escape response plans at a city, county, or state adult or juvenile

correctional facility, the public disclosure of which would have a substantial likelihood of

threatening the security of a city, county, or state adult or juvenile correctional facility or any

individual’s safety;

(3) Information compiled by school districts or schools in the development of their comprehensive

safe school plans pursuant to RCW 28A.320.125, to the extent that they identify specific

vulnerabilities of school districts and each individual school;

(4) Information regarding the infrastructure and security of computer and telecommunications

networks, consisting of security passwords, security access codes and programs, access codes for

secure software applications, security and service recovery plans, security risk assessments, and

security test results to the extent that they identify specific system vulnerabilities; and

(5) The security section of transportation system safety and security program plans required under

RCW 35.21.228, 35A.21.300, 36.01.210, 36.57.120, 36.57A.170, and 81.112.180.

RCW 42.56.430 Fish and wildlife.

This exemption mostly concerns records held by state agencies and is not relevant for local governments,

except for subsection (2), dealing with information regarding sensitive wildlife data, such as data concerning

the nesting sites of endangered species, or information concerning species that are threatened but have a

commercial or black market value.

RCW 42.56.440 Veterans’ discharge papers – Exceptions.

County auditors dealing with veterans’ discharge papers need to read this statue carefully.

RCW 42.56.450 Check cashers and sellers licensing applications.

This exemption deals with records held by the state director of financial institutions and is not relevant for

local governments.

RCW 42.56.460 Fireworks.

All records obtained and all reports produced as required

by state fireworks law, chapter 70.77 RCW, are

exempt from disclosure under this chapter.

RCW 42.56.470 Correctional industries workers.

This exemption is not relevant for local governments.

RCW 42.56.480 Inactive programs.

This exemption is not relevant for local governments.

Exempt Records and Redaction

The preceding section looked at specific records that are exempt from disclosure. Once a record is found to

be exempt, the local agency must determine whether personal information can be deleted from the exempt

record so that it might still be released.

The requirement that exempt material be deleted and the rest of the record disclosed, is sometimes referred

to as redaction.

This section deals only with redaction pertaining to the exemptions listed in the Public

Records Act.

Having determined that a record is exempt from disclosure under the Public Records Act, RCW 42.56.210(1)

provides that “the exemptions of this section are inapplicable to the extent that information, the disclosure

of which would violate personal privacy or vital government interests, can be deleted from the specific record

sought (emphasis added).” Therefore, exemptions will not bar disclosure of records, where the local agency

can delete information that would violate (1) personal privacy or (2) vital government interests.

1. Redacting Information, Disclosure of Which Would Violate Personal Privacy

The terms “right to privacy,” “right of privacy,” “privacy,” or “personal privacy,” are found throughout the

Public Records Act.

In 1978 the state supreme court defined the right to privacy in Washington to be

coincident with the common law:

One who gives publicity to a matter concerning the private life of another is subject to liability if the

matter publicized is of a kind that (a) would be highly offensive to a reasonable person, and (b) is not

of legitimate concern to the public.

The court cited the following explanation as illustrative of the type of facts protected by the right to privacy:

Every individual has some phases of his life and his activities and some facts about himself that he

does not expose to the public eye, but keeps entirely to himself or at most reveals only to his family

or to close personal friends. Sexual relations, for example, are normally entirely private matters, as

are family quarrels, many unpleasant or disgraceful illnesses, most intimate personal letters, most

details of a man’s life in his home, and some of his past history that he would rather forget. When

these intimate details of his life are spread before the public gaze in a manner highly offensive to the

ordinary reasonable man, there is an actionable invasion of his privacy, unless the matter is one of

legitimate public interest.

In 1987 the legislature adopted this statement of the law, and it is now codified as RCW 42.56.050:

A person’s “right to privacy” . . . is invaded or violated only if disclosure of information about the

person: (1) Would be highly offensive to a reasonable person, and (2) is not of legitimate concern

to the public.

Both the “offensiveness” and “legitimate concern” elements must be met before information may be redacted

from a record.

The Washington courts have applied this rule on several occasions. In one case the court held that “under

Washington’s public records act, the names of police officers, without simultaneous release of other

identifying information such as home addresses, residential telephone numbers, and social security numbers

cannot be considered “highly offensive.” . . . ”

Additionally, a legitimate public concern existed because

“. . . police officers are public employees, paid with public tax dollars. They are granted a great deal of power,

authority, and discretion in the performance of their duties.”

In 2005 the court of appeals provided a wide-ranging analysis of the right to privacy in regard to public

employee personnel records when it examined disclosure issues involving teachers and records of allegations

of misconduct of a sexual nature.

In another appeals case regarding employee identification numbers, the appeals court held that the “. . .

release of employees’ identification numbers would be highly offensive, because disclosure could lead to

public scrutiny of individuals concerning information unrelated to any governmental operation and

impermissible invasions of privacy. . . .”

However, the release of employee names would not be similarly

offensive or lead to such invasions of privacy; rather, disclosure of employee names would “allow public

scrutiny of government.”

In general, performance evaluations of public employees that do not contain particular incidents of

misconduct are presumed to be highly offensive and of small public concern.

However, this does not apply

to the position of city manager, because the “. . . performance of the City Manager’s job is a legitimate subject

of public interest . . . [he or she] . . . cannot reasonably expect that evaluations of the performance of his or

her public duties will not be subject to public disclosure.”

Therefore, while the courts generally view non-

particularized evaluations as highly offensive, there is an overriding legitimate public concern in the case of

city managers.

2. Redacting Information, Disclosure of Which Would Violate a Vital Government Interest

The term “vital government interest” is not defined in the Public Records Act. A helpful discussion of that

term is contained in a 1976 attorney general letter opinion,

which opined that the descriptive term “vital”

gives a more restrictive meaning to the phrase than if the legislature had used the term “important.”

A similar term “vital government functions” is used in RCW 42.56.540, and it may be useful by analogy.

That statute authorizes a superior court to prohibit disclosure of public records if the court finds

“. . . that such examination would clearly not be in the public interest and would substantially and

irreparably damage any person, or would substantially and irreparably damage vital government

functions.”

Redacting Information in Records Made Available to the Public

When a public record is not exempt under the specific provisions in the Public Records Act, a local agency

must still examine the document to see if any portions are exempt or prohibited from disclosure.

Though there is no general privacy exemption, a few specific exemptions incorporate privacy as one of the

elements, such as personal information in employee files.

If some information is clearly exempt or

prohibited from disclosure, that information must be redacted from the record.

This redaction provision is similar to that provided in RCW 42.56.210(1) except that it applies to all public

documents. If a record contains both information which should be disclosed, and some which is exempt from

disclosure, a local government is generally required to delete the exempt information from the record and

disclose the rest. For example, if there is a request for records concerning the hours worked during a certain

month by a particular local government employee, the local government should redact all exempt, personal

information which might also be contained in the records, such as the home phone number or home address,

personal e-mail address, personal wireless phone number, and social security number – the rest of the record

must be disclosed.

The redaction requirement applies to all but a few specifically excepted public records. The state supreme

court has held that if another statute “(1) does not conflict with the Act [Public Records Act], and (2) either

exempts or prohibits disclosure of specific records in their entirety, then (3) the information may be withheld

in its entirety notwithstanding the redaction requirement.”

As an example, an agency may refuse to disclose

employee medical records which it has on file, in its entirety.

No redaction requirement applies here

because of the specific statutory prohibition provided for medical records.

Exemptions and Prohibitions Outside

the Public Records Act

In addition to the many exemptions provided in the Public Records Act, chapter 42.56 RCW, the legislature

has enacted numerous laws which prohibit or exempt the disclosure of other classes of information. The

prohibitions and exemptions relevant to local governments include:

• Addresses of victims of domestic violence. Chapter 40.24 RCW.

• Medical records. Chapter 70.02 RCW.

This exemption applies to medical records in an

employee’s personnel file,

and also to medical records prepared by fire department ambulance

EMTs, who are health care providers under chapter 18.73 RCW.

• Information regarding organized crime. RCW 43.43.856.

• Traffic accident reports. RCW 46.52.080.

• Industrial insurance (workers’ compensation) claim files and records. RCW 51.28.070.

• Information identifying child victims under eighteen who are victims of sexual assault. RCW

10.97.130

(This is similar to the RCW 42.56.240(5) exemption.)

• Tax return records and other tax information. RCW 82.32.330.

Note, however, that

RCW 84.40.020 provides that property tax assessments and all supporting documents are specifically

open to public inspection during the regular office hours of the county assessor’s office.

• Uniform Trade Secrets Act. Chapter 19.108 RCW and RCW 4.24.601.

• Records obtained and reports produced pursuant to the state fireworks law. Chapter 70.77 RCW

(also see RCW 42.56.460).

• Driving license records of individuals which show traffic violations, convictions and accidents.

RCW 46.52.120 and RCW 46.52.130.

• Records of mental illness and treatment. RCW 71.05.390.

• Records concerning issuance of confidential license plates for undercover law enforcement work.

RCW 46.08.066.

• Court files are not covered by the Act, but such files are available through common law right of

access.

• Disclosure of names and addresses of individual vehicle owners by the county auditor or agency

authorized by the state department of licensing must follow the requirements of RCW 46.12.380.

• A private electronic authentication key in the possession of a local agency is exempt from public

inspection and copying.

• Autopsy and post mortem report and records may be inspected only by the personal representative

of the decedent, any family member, the attending physician, the prosecuting attorney or law

enforcement agencies having jurisdiction, public health officials, or the department of labor and

industries in certain cases.

• Records of a person confined in jail shall be held in confidence and shall be made available only to

criminal justice agencies, except that (1) law enforcement may use booking photographs to assist

them in conducting investigations of crimes, and (2) photographs and information concerning a

person convicted of a sex offense as defined in RCW 9.94A.030 may be disseminated.

• When a city or county sends a report concerning the termination of a police officer to the Criminal

Justice Training Commission, the personnel action report in the commission’s files is prohibited from

disclosure, but that same record when in the custody of the jurisdiction that employed the officer is

not exempt or prohibited from disclosure.

• Information and data collected and processed by the organized crime advisory board and all such

information related to the proceedings of a special inquiry judge.

• Counties administering the state’s public assistance programs are prohibited from disclosing the

contents of any records, files, papers and communications, except for purposes directly connected

with the administration of the program.

There are also specific statutory exemptions and prohibitions regarding records available to, or maintained

by, law enforcement agencies. These are discussed in Chapter 6. A more complete listing of exemptions and

prohibitions, other than the exemptions included in chapter 42.56 RCW, is provided in Appendix C.

Criminal History, Juvenile, Sexual Offense,

Jail and Inmate, and Law Enforcement Records

Criminal History Records – Chapter 10.97 RCW

There are numerous statutes governing disclosure of specific records maintained by or available to law

enforcement agencies. The Criminal Records Privacy Act, ch. 10.97 RCW, provides the rules concerning

disclosure of criminal history record information.

These records include computerized information of the

type typically included in a “rap sheet.” Data concerning adult convictions must be disclosed upon request,

but data concerning arrests may be prohibited from disclosure, depending upon the factors outlined in several

sections of ch.10.97 RCW.

Note that the policy behind the Criminal Records Privacy Act is not at all like

the policy statement in the public disclosure statutes:

The legislature declares that it is the policy of the state of Washington to provide for the

completeness, accuracy, confidentiality, and security of criminal history record information and

victim, witness, and complainant record information as defined in this chapter.

Juvenile Records – Chapter 13.50 RCW

Disclosure of data concerning juvenile offenses and dispositions, and juvenile data not related to offenses,

is governed by ch.13.50 RCW.

Before release of any juvenile data, the statutes should be reviewed. Note

that parents or guardians do not have an automatic right to all of the records concerning a juvenile who is in

their charge.

Sexual Offender Information – Chapter 4.24 RCW

Special statutes governing disclosure of data concerning sexual offenders were enacted in 1990, and amended

several times since then.

Local governments are authorized to release relevant and necessary information

regarding sex offenders to the public when the release of the information is necessary for public protection.

A local government is protected from suit by a sexual offender when such information is released, as long

as the disclosure is done properly:

An elected public official, public employee, or public agency . . . is immune from civil liability for

damages for any discretionary decision to release relevant and necessary information, unless it is

shown that the official, employee, or agency acted with gross negligence or in bad faith.

Whenever a local government is considering release of such information to the public, legal counsel should

be consulted to make sure that the disclosure is done properly.

Jail and Inmate Records – Chapter 70.48 RCW

RCW 70.48.100 governs disclosure of jail records and inmate records.

Law Enforcement Records

Records in a police department or sheriff’s office that are not prohibited from disclosure by the Criminal

Records Privacy Act,

or records that are not covered by other specific disclosure exemption statutes, must

be made available for inspection and copying. Though there is an exemption at RCW 42.56.240(1) which

protects many police investigative records from disclosure, law enforcement personnel files and

administrative files are subject to the same disclosure rules as apply to other local agencies. Personnel files

are discussed in more detail in chapter 7.

Issues relating to disclosure of law enforcement records are often complex and require careful analysis. Legal

counsel should not hesitate to consult colleagues and review relevant presentations from WAPA or WSAMA

training sessions.

Police and emergency responders have special provisions allowing them to make visual and or audio

recordings, in some circumstances without the approval of the person being recorded – see RCW 9.73.090.

The video and sound recordings made by police officers are not exempted or prohibited from disclosure, but

subsection (1)(c) of the statute provides that they may not be disclosed “. . . until final disposition of any

criminal or civil litigation which arises from the event or events which were recorded.”

Personnel Records

There are numerous disclosure issues concerning personnel records. A fair number of these issues have been

addressed by the state appellate courts. Newspapers and private individuals frequently seek access to records

of misconduct by local government employees or local government officials, and the limits concerning

disclosure of personnel records have been challenged on numerous occasions. Local governments often have

a difficult time with these requests since failure to disclose may be contested in the courts.

If a local government does decide to disclose certain personnel records, the subject employee may feel that

his or her privacy rights have been violated. Having decided that information will be disclosed, it is good

practice to notify the employee that there has been a request for disclosure of information in the employee’s

personnel file. The employee may then seek to block disclosure by using the procedure provided in

RCW 42.56.540. These are the types of difficult disclosure issues which should be carefully reviewed with

legal counsel.

Personnel files frequently contain information which is exempt or prohibited from disclosure, these include:

• Applications for public employment;

• Residential addresses and telephone numbers; personal wireless phone numbers; personal e-mail

addresses; and social security numbers;

• Performance evaluations which do not discuss specific instances of misconduct;

• Medical information;

• Industrial insurance (workers’ compensation) claim files and records;

• Employee identification numbers; and

• Taxpayer information, such as tax withholding data.

Inspection by Local government Officials and Local Government Employees

Inspection of personnel files by agency officials or employees is not, strictly speaking, a public disclosure

issue. But, because of the recognized privacy rights concerning such information, access to personnel files

by agency officials or employees should be scrutinized in a manner similar to public disclosure law.

To the extent possible, personnel records should be maintained as private records. Access to personnel files

should be limited to only those local government employees who are needed to maintain the files and those

who have a legitimate need for access. A city council or a board of county commissioners may adopt a policy

specifying which officials and employees have general access to personnel files. In a small city or town, this

would be the city clerk. In the personnel office of larger jurisdictions, this would be handled by a designated

employee or human resources department staff.

Councilmembers, commissioners, and other local government officials do not have the right to randomly

access local government personnel files. Access should be limited to only those personnel records which they

need in order to perform their official functions. Public officials and other local government employees have

no special right to access employee personnel records if the access is not necessary for the performance of

their public duties.

Employee Inspection of Personnel File

Local government employees have the right to inspect their own personnel files at least once each year, and

they have the right to challenge the accuracy of information in their files.

Identity and Motivation of Persons

Requesting Records or Lists – Does it Matter?

The identity and motivation of a person seeking to obtain a copy of a public record is generally not relevant

to the determination of whether the record must be disclosed. This is true whether the individual seeking the

record is doing so for private purposes, or for “public” purposes. RCW 42.56.080 stresses this point:

. . . Agencies shall not distinguish among persons requesting records, and such persons shall not be

required to provide information as to the purpose for the request except to establish whether

inspection and copying would violate RCW 42.56.070(9) or other statute which exempts or prohibits

disclosure of specific information or records to certain persons.

A 2002 Washington Court of Appeals decision has held that an agency is prohibited from inquiring into the

proposed use of the information requested for disclosure.

Except in the relatively rare situations where

a statute distinguishes among persons entitled to have access to records, identity and motivation are not to

be considered in the disclosure process.

Prisoner Injunction Provision – 2009 Legislation

A local government agency may file a court action in superior court to obtain a court order (injunction)

prohibiting a prisoner from filing public records disclosure requests if the intent of the disclosure requests

is to harass or intimidate an agency or its employees. There are clear standards for the types of evidence the

agency must present to obtain the injunction. If you encounter a situation that you think might qualify, read

the statute carefully.

More detail regarding the prisoner injunction bill can be read at:

www.mrsc.org/focus/opengovadvisor/opengov0509.aspx

Lists of Individuals Requested for Commercial Purposes

Private entities (e.g., commercial firms) may copy and inspect public records that are not exempt. However,

an agency is prohibited from disclosing lists of individuals if the requester intends to make commercial use

of the list. RCW 42.56.070(9) provides:

This chapter shall not be construed as giving authority to any agency . . . to give, sell or provide

access to lists of individuals requested for commercial purposes, and agencies . . . shall not do so

unless specifically authorized or directed by law: PROVIDED, HOWEVER, That lists of applicants

for professional licenses and of professional licensees shall be made available to those professional

associations or educational organizations recognized by their professional licensing or examination

board, upon payment of a reasonable charge therefor (sic): PROVIDED FURTHER, That such

recognition may be refused only for a good cause pursuant to a hearing under . . . the Administrative

Procedure Act.

This provision prohibits disclosure “. . . if the requester has a commercial purpose and intends to directly

contact or personally affect the individuals named in the list.”

RCW 42.56.070 does not prohibit access to raw data from which a person could construct his own list of

individuals for commercial purposes.

In addition, this provision does not prohibit disclosure of lists of

businesses, corporations, or partnerships; the statute only prohibits disclosure of lists of natural persons.

Therefore, lists of private companies which have commercial value for targeted advertising must be disclosed

upon request.

Electrical Utility Records Sought by Police

If police are seeking evidence of criminal conduct in records of electrical use, they must provide the utility

with a written statement indicating that they suspect a specific person of a crime, and that the records could

help to determine whether this suspicion is true. No fishing expeditions are allowed.

In a state supreme court case, the court held that though a private individual may request and obtain a copy

of the electric bill for a specific residence, a policeman seeking evidence of a marijuana growing operation

can only obtain that same record if he first provides a written statement concerning his reasonable belief that

the information is relevant to the investigation of a possible crime.

Geographic Information Systems (GIS) Data Requested for

Commercial or Non-commercial Purposes

Many cities and counties in Washington have spent considerable time and effort compiling GIS data in order

to facilitate planning and managing their jurisdictions. GIS data often includes maps of sewer and water lines,

hazardous liquid transmission pipelines, natural gas pipelines (both transmission and distribution lines),

federal census data, property values, wetlands and other critical areas, locations of power distribution lines,

zoning data, and other geographically related information.

Utilizing special computer software, it is possible to make maps and compile information from selected parts

of the database. Because GIS data is costly to assemble and has commercial value for those working in land

development and related businesses, cities have required payment for disclosure of GIS data, particularly

when specialized skills and time are involved in manipulating the data to provide the specific information of

interest to the requestor.

Even if the requestor of GIS data intends to market the data to others for a profit, such motivation is not

statutorily recognized as a basis for denying disclosure. GIS data may be considered “research data,” but it

would not be exempt under RCW 42.56.270(1) because disclosure would not result in any “public loss.”

Remember that some GIS data may be exempted or prohibited from disclosure by state law; for example,

maps or other information identifying the location of archaeological sites (to avoid looting or depredation of

such site).

Procedures for Making

Records Available for Public Inspection

Public Records Officer – RCW 42.56.580

“Each state and local government 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.”

Index of Records – RCW 42.56.070

Local governments are required to maintain and make available a current index of local government records

listed in RCW 42.56.070(3).

If maintaining an index would be unduly burdensome, a local government

must issue and publish a formal order specifying the reasons why and the extent to which compliance would

be unduly burdensome. All indexes maintained by local government must be made available. Appendix B

contains sample local government policies and ordinances which require department heads to prepare and

maintain an index of public records maintained by their respective departments.

List of Exemption and Prohibition Statutes Not Contained in Chapter 42.56 RCW

RCW 42.56.070(2) provides:

For informational purposes each agency shall publish and maintain a current list containing every

law, other than those listed in this chapter [ch. 42.56 RCW] that the agency believes exempts or

prohibits disclosure of specific information or records of the agency. An agency’s failure to list an

exemption shall not affect the efficacy of any exemption.

Appendix C of this publication contains a list of the statutory exemptions and prohibitions not contained in

ch. 42.56 RCW. MRSC will keep updating this appendix on our web site. If you become aware of additions

or corrections that should be made to the list, please notify one of the staff attorneys at MRSC. Some of the

exemptions and prohibitions on the list concern public record information that may not be relevant for your

jurisdiction. For instance, cities would not normally have records regarding marriage license applications

or adoption records.

Form of Request – RCW 42.56.100

Although the public disclosure statutes do not require that requests for inspection or copying of records be

in writing, local governments may adopt reasonable rules concerning disclosure requests. RCW 42.56.100

specifically provides that requests received by mail for copies of identifiable public records must be honored.

Telephonic requests are not specifically discussed in the statute, but they should be processed in the same

manner as any other type of request for public documents.

Because an agency is given latitude to devise

public records request procedures, it is not unreasonable to ask that a requesting party fill out a standard

request form.

Protection of Public Records and Agency Functions – RCW 42.56.100

Agencies are to adopt reasonable rules to assure:

• Full public access to public records;

• Protection of public records from damage or disorganization; and

• Prevention of interference with essential functions of local governments.

In addition to RCW 42.56.100, WAC 434-615-010 provides that public records shall be “. . . delivered by

outgoing officials and employees to their successors and shall be preserved, stored, transferred, destroyed,

and otherwise managed . . .” as expressly provided for by state law and regulation.

Times for Inspection and Copying – RCW 42.56.090

Records must be available for inspection during a local agency’s regular business hours. If an agency does

not have regular business hours of at least thirty hours each week, hours for inspection and copying must be

set between 9 a.m. and noon, and 1 p.m. and 4 p.m. during the weekday, unless the person making the request

agrees on a different time.

Charges for Copying – RCW 42.56.070(7), (8) and RCW 42.56.120

Local governments are not allowed to charge for the staff time spent in locating a public record, or for making

a record available for inspection.

A local government may, however, charge for the actual costs connected

with copying public records, including the staff time spent making the copies.

A local government cannot

charge more than fifteen cents a page for photocopying unless it has calculated its actual costs per page and

determined that it is greater than fifteen cents.

Actual costs for postage and delivery can be included, as

well as the cost of any envelopes.

If a local government has to pay an outside source for making duplicates

of records such as photographs, blueprints or tape recordings, those costs must be charged to the requestor.

Note that there are statutes outside ch. 42.56 RCW that authorize local agencies to set fees for providing

information, or for photocopying specific public records. These statutes are not part of the public disclosure

act and are not subject to the cost limitations imposed by RCW 42.56.120.

Here are some examples :

• RCW 46.52.085 authorizes cities, counties and state agencies to set a fee to cover the costs of

furnishing copies of traffic accident reports. This statute allows a local government to set a standard

fee for providing copies of those reports, regardless of the number of pages involved in any particular

request. For instance, the Washington State Patrol charges a set fee for copies of traffic accident

reports.

• RCW 10.97.100 authorizes police departments to collect reasonable fees for the dissemination of

criminal history record information.

• RCW 3.62.060 and RCW 3.62.065 authorize municipal courts, and municipal departments of district

courts, to charge specific fees for various services, including duplication of part or all of the

electronic tape or tapes of a court proceeding.

• RCW 36.18.040(1)(t) authorizes sheriffs to collect fees “[f]or the reproduction of audio, visual, or

photographic material, to include magnetic microfilming, the actual cost including personnel time.”

• RCW 70.58.107 authorizes local registrars to collect fees for birth certificates and death certificates.

• RCW 41.08.040 and RCW 41.12.040 require cities to provide free copies of their police and fire civil

service rules.

Deposits and Responding in Installments – RCW 42.56.120

Legislation in 2005 now specifically authorizes deposits and authorizes responding in installments:

An agency may require a deposit in an amount not to exceed ten percent of the estimated cost of

providing copies for a request. If an agency makes a request available on a partial or installment

basis, the agency may charge for each part of the request as it is provided. If an installment of a

records request is not claimed or reviewed, the agency is not obligated to fulfill the balance of the

request.

Prompt Responses Required – RCW 42.56.520

Within five business days of receiving a request for a public record, a local agency must respond by either:

• Providing for inspection and/or copying of the record;

• Providing an internet address and link on the agency’s web site to the specific records requested (if

the individual does not have internet access, then the agency must provide copies or allow the

requestor to view the records using an agency computer);

• Acknowledging receipt of the request and providing a reasonable estimate of the time necessary to

respond; or

• Denying the request. If a request is denied, a written statement must accompany the denial setting

out the specific reasons therefore.

Note that although responses must be made within five days, another statute requires local governments to

“provide for the fullest assistance to inquirers and the most timely possible action on requests for

information.”

Failure to provide a written response within the five day period can result in a civil award

of statutory penalties.

Additional Time for Response – RCW 42.56.520

Additional time to respond to a request may be based upon the need to:

• Clarify the intent of the request;

• Locate and assemble the information requested;

• Notify third parties or agencies affected by the request; or

• Determine whether any of the information is exempt and whether a denial should be made as to all,

or part, of the request.

Unclear Request for Information – RCW 42.56.520

If a local government receives an unclear request for records, it may seek clarification from the requestor. If

clarification is not received, the records request should be denied, with the reason clearly stated.

Denial of Request for Records Disclosure – RCW 42.56.520

A written statement of the reasons for denying a request for disclosure must be provided to the requestor,

regardless of the reason for the denial. The denial:

. . . shall include 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.

The state Supreme Court has stressed the need for all local governments to provide a clear exemption log

providing the following information: (1) a description of the document that the local government is claiming

to be exempt; (2) the date of the document; (3) the author or sender of the document; (4) the recipient(s) of

the document; (5) the number of pages claimed as exempt; and (6) the specific exemption relied upon, with

an explanation of how the exemption applies to the withheld document.

In a 2000 court of appeals case, the court held that an agency does not need to provide requested information

within five days, rather, it must respond to a request within five days and provide a reasonable time at which

the requested information will be disclosed.

The court also held that an agency is not required to provide

the requested records in a piecemeal fashion; consequently, the agency may wait until all the information is

gathered before disclosing the requested record.

Local governments are required to adopt procedures for prompt review of decisions denying inspection.

Depending upon the size of a local government, review might be by a department legal counsel. Because

denials can result in litigation, a local government should make sure that denial is based on a good faith

interpretation of the statutes. A denial decision is final at the end of the second business day following the

denial of inspection. After that date, an individual can file a lawsuit in superior court to challenge the

denial.

Local Government-Initiated Court Action to Prevent Disclosure – RCW 42.56.540

A local government may take the offensive when dealing with a request for inspection. Under

RCW 42.56.540, a local government may seek court protection to enjoin the release of a record that is not

exempt under the Act, if the local government can show that (1) the requested information is “clearly not .

. . in the public interest” and (2) that disclosure will “irreparably damage any person, or would substantially

and irreparably damage vital governmental functions.”

Like the right to privacy under RCW 42.56.050, this provision is not a general exemption to the Act – the Act

provides only for specific statutory exemptions. Instead, RCW 42.56.540 is a procedural provision creating

an injunctive remedy. Therefore, whether a record should be protected from inspection under

RCW 42.56.540 can only be argued in a superior court injunction proceeding; this reasoning cannot be used

as the basis for an agency to deny disclosure outside of an injunction proceeding.

A local government may also notify the person who is named in the record or the person to whom the record

specifically pertains, that a request for disclosure has been made and the local government intends to disclose

the record(s). The purpose of notification is to allow the named individual the option of seeking a superior

court injunction blocking disclosure.

An individual has the option of filing in either their county of

residence, or in the county where the record is maintained.

Judicial Review of Local Agency Action – RCW 42.56.550

If a person is denied an opportunity to inspect and copy a public record held by a local government, he or she

may bring a motion in the superior court of the county where the record is maintained to require the local

agency to explain, or show cause, why it has denied inspection. The local agency has the burden of proving

that the denial is in accordance with a statute which either exempts or prohibits disclosure in whole or in part.

Also, if a person believes that a local government has not made a reasonable estimate of the time needed to

respond to a disclosure request, he or she may file a motion requiring a local government to explain the

reasonableness of its estimate.

When a court reviews a local government disclosure action:

• Review will be de novo, i.e., the court will review the facts anew and is not bound to accept any

factual determination made by the agency, nor is the court required to give any deference to the

agency’s decision;

• The court is required to take into account the broad public policy favoring disclosure, even though

disclosure might cause inconvenience or embarrassment to public officials or others.

Penalties, Attorney’s Fees, and Costs If Local Government

Loses in Court – RCW 42.56.550(4)

The wording of RCW 42.56.550(4) is mandatory in regard to costs, including attorney fees (note the phrase

“shall be awarded” in the first sentence below), but discretionary in regard to penalties.

Any person who prevails against an agency in any action in the courts seeking the right to inspect

or copy any public record or the right to receive a response to a public record request within a

reasonable amount of time shall be awarded all costs, including reasonable attorney fees, incurred

in connection with such legal action. In addition, it shall be within the discretion of the court to award

such person an amount not to exceed one hundred dollars for each day that he or she was denied the

right to inspect or copy said public record.

Prior to July of 2011, monetary penalties were also mandatory. Because the statutory amendment now

enables judges to use their discretion in regard to penalties, local governments should carefully document

their efforts to comply with the requirements of the PRA. Conversely, do not expect leniency from the court

if there is evidence that a local government agency willfully tried to delay or avoid disclosing records when

no exemption or prohibition applied.

Retention and Destruction of Public Records

Although detailed requirements for retention and destruction are not covered in this publication, general

information about that process is provided below.

Local government agencies own the records in their possession, subject to the right of the public to inspect

and obtain copies of those records.

The public record retention and destruction process is governed by

chapter 40.14 RCW and several chapters in title 434 WAC, notably chapters 434-630, 464-635, 464-640,

464-660, and 464-662.

The State Archivist is the head of the Division of Archives and Records Management in the Office of the

Secretary of State. The Archivist’s office, along with a state records committee, is responsible for developing

retention schedules for all public records.

The Archivist’s office publishes a local government records

retention schedule which can be obtained from its web site at http://www.secstate.wa.gov/archives/gs.aspx

or by calling (360) 753-5485. Copies of the current retention schedule may also be borrowed from the MRSC

library our downloaded from the MRSC web site http://www.secstate.wa.gov/archives/gs.aspx.

In addition to the information provided by the State Archivist’s office, counties and municipalities will find

the following publication useful, “Deleting Criminal History Record Information in Washington a.k.a.

Expungements,” by Cheryl Carlson, Assistant City Attorney for the City of Tacoma.

The Model Rules contain comments regarding records retention at WAC 44-14-03005.

Preservation of Electronic Public Records

Progress brings complexity, and that is nowhere more evident than in the numerous issues starting to arise

in regard to electronic public records. Chapter 434-662 WAC deals with the preservation of electronic public

records, including such troubling issues as e-mails, maintaining metadata, and the application of the public

records act to websites maintained by public agencies. Those responsible for managing public records should

read that chapter carefully and discuss the details with the supervisor or person who manages the computer

systems for the jurisdiction. A copy of chapter 434-662 WAC is included as Appendix F to this publication.

Note that the administrative rules referenced above were adopted by the state archivist through the Secretary

of State’s office. The rules are mandatory, unlike the “Model Rules” drafted by the attorney general and

published in chapter 44-14 WAC. The Model Rules deal with the recommended procedures for public

records disclosure, whether the records are paper, electronic, or in any other form. See WAC 44-14-050

regarding the recommended procedures for disclosing electronic records. Appendix D is a copy of the Model

Rules, including those dealing with electronic records.

Appendix A

Selected Cases and Research References

General Articles

“Public Records Act Update and Web 2.0 Issues”, Fall 2009 WSAMA conference presentation, by Ramsey

Ramerman, Assistant City Attorney, Everett

“Preservation of Electronic Public Records: What is Required and How to Comply?” Fall 2009 WSAMA

conference presentation, by Matt Segal, K & L Preston Gates Ellis

“Discovery vs. Public Disclosure Requests”, Spring 2009 WSAMA conference presentation, by Kim

Gerhardt, Assistant City Attorney, Tacoma

“Public Records Act Update”, Fall 2008 WSAMA conference presentation, by Ramsey Ramerman, Foster

Pepper

Office of the Attorney General, Open Records & Open Meetings Deskbook – A Citizen’s Guide to Open

Government, available on the web: http://www.atg.wa.gov/records/.

Statutes

In re Meyer, 142 Wn.2d 608, 621-22 (2001).

“Preventing law enforcement agencies from issuing appropriate community notification would adversely

affect an agency’s ability to assist parents in avoiding the potential for harm to their children.”

State v. Ward, 123 Wn.2d 488, 502 (1994).

“This state’s policy as expressed in [RCW 4.24.550] is to require the exchange of relevant information

about sexual predators among public agencies and officials and to authorize the release of necessary and

relevant information about sexual predators to members of the general public.”

James Pidduck, “Confidentiality of Police Personnel Records and Other Police Records Under the Public

Disclosure Act (chapter 42.17 RCW) and the Washington Criminal Records Privacy Act (chapter 10.97

RCW),” Legal Notes Information Bulletin No. 458 (1989).

Hangartner v. City of Seattle, 151 Wn.2d 439 (2004).

The court ruled that the attorney-client privilege is an “other statute” (under RCW 42.17.260(1)) that

prohibits disclosing certain records through the Public Disclosure Act.

AGO 1988 No. 11.

Bainbridge Island Police Guild v. City of Puyallup, 172 Wn.2d 398 (2011)

After being stopped by a Bainbridge Island police officer, a driver alleged that she had been choked and

sexually assaulted by the officer. Mercer Island and Puyallup police departments investigated the incident

and issued reports; the incident was found to be “unsubstantiated” and no charges were brought against

the police officer. One of the reports was released, a news account published, and then, in response to

other public records requests for the reports, an injunction was sought and granted. On appeal, in a

divided decision, the court’s lead opinion found that the officer’s initial failure to object to the report’s

release did not constitute a waiver from later objecting, under privacy grounds, to other records’ requests.

The court concluded that the reports were “personal information” and that the right to privacy had not

been lost due to the initial release. The decision found that the release of the officer’s identity would be

highly offensive; however, release of the reports, with identity information redacted, would satisfy a

legitimate public concern. Also, under an argument relating to the criminal records privacy act, the court

held that RCW 10.97.080 requires redaction of only criminal history record information and does not

exempt information relating to the conduct of the police during the investigation.

Beltran v. Wash. Dep’t of Soc. & Health Servs., 98 Wn. App. 245, 260 (1999).

The Hudgens court permitted viewing of nonconviction data, but sustained the trial court’s decision to

prohibit copying or retaining the documents: “The statute [RCW 10.97.080] clearly states (1) that

nonconviction information cannot be retained or mechanically reproduced, except in certain situations,

and (2) that RCW 42.17 shall not be construed to require or authorize copying of the nonconviction

information.” (citing Hudgens).

Hudgens v. Renton, 49 Wn. App. 842, 844 (1987), rev. denied, 110 Wn.2d 1014 (1988).

RCW 10.97.080 “. . . precludes the copying or returning of non-conviction information, and exempts

such information from the disclosure requirements of RCW 42.17.”

Deers v. DSHS, 122 Wn. App. 84 (2004).

AGO 1992 No. 9, 4-7 (disclosure analysis under ch.13.50 RCW).

AGO 1996 No. 1 (confidentiality of juvenile court truancy records).

Yakima County v. Herald-Republic, 170 Wn.2d 775 (2011)

A newspaper sought documents from the court and county regarding attorney costs associated with the

defense of two indigent murder defendants. (One of the defendants plead guilty; the other was tried and

found guilty and that conviction was appealed.) Having been initially denied the requested records, the

newspaper appealed. On appeal the Court affirmed long standing case law and held that the documents

prepared by court personnel in connection with court cases and maintained by the court were judicial

documents governed by GR 15. It also held that such documents, when transferred to nonjudicial county

entities, are governed by the Public Records Act unless they are subject to an additional protective order.

The Court held that a trial court has jurisdiction to consider a motion to unseal court documents and is

not required to seek permission from an appellate court pursuant to RAP 7.2 when the sealing order will

not impact a separate decision on appeal, and that a limited intervention by a third party in a criminal case

is a proper procedure after trial has ended. The Court remanded the case to the trial court to determine

whether continued sealing of these financial documents is proper pursuant to GR 15(e), given the current

posture of the criminal case.

City of Federal Way v. Koenig, 167 Wn.2d 341 (2009)

Relying on its prior decision, Nast v. Michels, 107 Wn.2d 300, 730 P.2d 54 (1986), the state Supreme

Court affirmed its conclusion that the Public Records Act does not apply to the judiciary because courts

are not “agencies” under the act. The court also noted that the legislature has acquiesced to the Nast

decision by not modifying the PRA.

Spokane & Eastern Lawyer v.Tompkins, 136 Wn. App. 616 (2007).

A nonprofit corporation sought copies of correspondence from the Spokane Superior Court to the state

and local bar associations. The request was denied and the nonprofit sued under the Public Disclosure

Act. On review and citing earlier authority, the court denied the request, finding that the court was not

an "agency" under the Public Disclosure Act and thus was not required to provide the requested letters.

Research & Defense Fund v. Community Development Association, 133 Wn. App. 602 (2006).

The court reviewed the definition of an "agency" subject to the Public Records Act, concluding in this

case that the 501(c)(3) organization possessed no material governmental attributes or characteristics, even

though the entity leased space in a public building in a public park, and received substantial funding from

the city. The court concluded that the entity acts as an independent contractor and is not under the control

of the city, and thus not covered by the PRA.

Telford v. Thurston County Bd. of Comm’rs, 95 Wn. App. 149, 152 (1999), review denied 138 Wn.2d 1015

(1999).

In determining whether an organization is a public agency under the PDA, the appeals court has adopted

a four factor balancing test: “The factors are: (1) whether the entity performs a governmental function;

(2) the level of government funding; (3) the extent of government involvement or regulation; and (4)

whether the entity was created by government.”

O'Neill v. City of Shoreline, ___ Wn. 2d ___ (10/7/2010)

Is the metadata (data about electronic data) subject to disclosure? On appeal, the Supreme Court has

determined that such data is subject to disclosure. The court, in a divided opinion (5 to 4), concluded that

an electronic version of a record, including its embedded metadata, is a public record subject to disclosure

subject to disclosure. The court also determined that the city should inspect a councilmember's hard drive

for the metadata to determine whether it had provided the requested information when it had provided

a paper copy as well as other information associated with the inquirer's request. The case was returned

to the trial court to determine whether the city had violated the state's public records disclosure

requirements.

O’Neill v. Shoreline, 145 Wn. App. 913 (2008).

A councilmember/deputy mayor referenced an e-mail she had received during a council meeting. O’Neill

requested a copy of the e-mail. O’Neill sued to obtain the e-mail. However, the electronic record of the

e-mail had been altered through the removal of the heading (the To/From information). The court

concluded that the record was a public record, even though it had been received by the councilmember

on a private computer. Although O’Neill had been furnished a paper copy of the e-mail, she had

requested the full electronic document, including the metadata. The court found that metadata fell within

the definitions of “public record” and “writing”.

Confederated Tribes v. Johnson, 135 Wn.2d 734, 746 (1998) (quoting RCW 42.17.020(41)).

A “public record,” subject to disclosure under the Act includes [1] any writing [2] containing information

relating to the conduct of government or the performance of any governmental or proprietary function

[3] prepared, owned, used, or retained by any state or local agency regardless of physical form or

characteristics.

Smith v. Okanogan County, 100 Wn. App. 7, 15-16 (2000).

Oaths taken by attorneys who could have been potentially appointed by county superior court were not

public records, because they did not relate to the conduct of government or relate to the performance of

any governmental function. On the other hand, a request for a copy of each judge’s oath was a public

record.

Tiberino v. Spokane County, 103 Wn. App. 680, 687 (2000).

Employee e-mail was a public record where excessive personal use of e-mail was a reason for discharge,

and the County printed the e-mails in preparation for litigation over termination, a proprietary function.

Consequently, the e-mails contained information relating to the conduct of a “governmental or

proprietary function.”

Concerned Ratepayers Ass’n v. Pub. Utility Dist. No. 1 of Clark County, 138 Wn.2d 950, 960 (1999).

Under RCW 42.17.020, which defines the term “public record,” to determine whether information has

been “used” turns on whether the requested information bears a nexus with the agency’s decision-making

process.

Limstrom v. Ladenburg, 85 Wn. App. 524, 529 (1997), rev’d, 136 Wn.2d 595 (1998).

Criminal investigation files held by prosecutor and prosecutor’s personnel files were public records.

Servais v. Port of Bellingham, 127 Wn.2d 820, 828 (1995).

Research data (a cash flow analysis prepared by a consulting firm for the purposes of planning by the

Port) was a writing which related to the conduct and performance of a governmental function, thus, was

a public record.

Yakima Newspapers, Inc. v. City of Yakima, 77 Wn. App. 319, 324 (1995).

A settlement agreement containing information about the City’s termination of an employee was a public

record because termination is a proprietary function.

Dawson v. Daly, 120 Wn.2d 782, 789 (1993).

Documents compiled by a prosecutor for use in cross-examining a defense expert in child sexual abuse

cases were documents relating to the performance of prosecutorial functions and were used by the

prosecutor’s office in carrying out those governmental functions and, thus, were public records.

Oliver v. Harborview Medical Center, 94 Wn.2d 559, 566 (1980).

Medical records of a patient treated at a public hospital were public records because the records contained

information of a public nature, “i.e., administration of health care services, facility availability, use and

care, methods of diagnosis, analysis, treatment and costs, all of which . . . relate to the performance of

a governmental or proprietary function.”

Parmelee v. Clarke, 147 Wn. App. 1035 (2008)

The Department of Corrections Public Records Act 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. Tip: all local government agencies

should provide a copy of their PRA policy, or the essential information from that policy, in every five

day response.

Bainbridge Island Police Guild v. City of Puyallup, 172 Wn.2d 398 (2011)

After being stopped by a Bainbridge Island police officer, a driver alleged that she had been choked and

sexually assaulted by the officer. Mercer Island and Puyallup police departments investigated the incident