Basics on Open Records Act
What is a public record?
• A “Public record” includes any writing containing information relating to the conduct of government or the performance of any governmental or proprietary function prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics.
• “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.
What is not considered a public record?
• A public record is an existing writing held by an agency concerning the conduct of government. Therefore, an agency is not required to create a record where one does not already exist.
• A public records request posed in the form of a question or asking for a specific fact is not a valid records request. A valid records request must ask for the record(s) that contain such information.
• Public records can be exempt from disclosure for a variety of reasons. Although there are literally hundreds of types of exempt records, they fall in two broad categories—information/records that an agency is legally prohibited from sharing (i.e. because the record contains personal information important to protect peoples’ rights to privacy), and information/records that an agency has the option of withholding if it chooses to (i.e. attorney/client privilege communication between a governing body and its attorneys where the governing can choose to waive its privilege and release the records if it chooses.) Specific exemptions are found in RCW 42.56 but this list is not exclusive.
With whom can I file a public records request?
• You may file a public records request with all state and local agencies.
• “State agency” includes every state office, department, division, bureau, board, commission, or other state agency.
• “Local agency” includes 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.
How do I file a public records request?
• A public records request may be made in writing, by phone, fax, email, or in person.
• Each state and local agency is required to provide assistance in obtaining public records and to explain how the agency’s public records process works.
• Each state or local agency is required to prepare and make available to the public one or more indexes of public records covering six categories of records identified in the law (RCW 42.56.070). A local agency can exempt itself from this requirement if it determines that creating such an index would be “unduly burdensome” and provides its reasons in writing. But even in this event, the local agency is still required to make available any other index (or indexes) that the agency uses internally as an aid to locating public records.
How is an agency required to respond to a public records request?
• Agencies are required to respond promptly to your request. Within five business days after receiving a request, the agency must either:
– Provide the record, either in its entirety or on an installment basis. (RCW 42.56.080)
– Acknowledge your request and give you a reasonable estimate of how long it will take to fully respond.
– Deny the request (in whole or in part) in writing, stating the exemption and including a brief explanation of how the exemption applies to the record withheld. (RCW 42.56.210 (3)) “Agency responses refusing, in whole or in part, inspection of any public record 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.”
•If a request is not clear, the agency may ask you for further clarification.
When may I examine a pubic records request?
•Public records are to be made available for inspection and copying during customary office hours of the agency.
• If an agency does not have customary hours of at least 30 hours per week, records may be available 9 a.m. to noon and 1 p.m. to 4 p.m., Monday through Friday, excluding holidays. Or at a time agreed upon by the agency and requestor.
How much may an agency charge for a copy of a record?
•No fee shall be charged for the inspection of public records or for locating public documents and making them available for copying.
• Agency charges for photocopies shall be imposed in accordance with the actual per page cost or other costs established and published by the agency.
• To the extent the agency has not determined the actual per page cost for photocopies of public records, the agency may not charge in excess of fifteen cents per page.
• 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.
Can an agency withhold a public record?
• Yes, agencies may withhold records as found in the exemptions in RCW 42.56. The specific exemptions are found in RCW 42.56.210 through RCW 42.56.250 and are also found in other state and local laws.
• According to the Attorney General, there are upwards of 300 exemptions.
• Some common examples include.
–Attorney-client privilege
–Health care records
If I believe a record was wrongly withheld, what remedies are available?
• Request an Internal Agency Review.
–If a request is denied, you may ask that agency for an internal review of its decision. The law provides that an agency internal review is deemed to be complete two business days after the initial denial, after which the requestor may obtain judicial review. The agency may take more than two business days to complete its review but after this period of time you have a “final” decision to challenge in court even if the agency has not decided the internal review by then.
• Attorney General Review (RCW 42.56.530)
– You may contact the Washington State Attorney General’s office and request a review of a denial of a request by a state agency (but not a local government). The attorney general created the Open Government Ombudsman to assist citizens with public records issues. The ombudsman will provide a written opinion on whether or not the record is exempt from disclosure. (Note: No attorney-client relationship is established in this exchange and the written opinion is not legally binding upon an agency.)
• Bring Litigation on Own Behalf (RCW 42.56.550)
– A person may bring suit in Superior Court in the county where the record is maintained. It is the duty of the agency in such suits to show why the record was withheld.
– If the agency is found to have wrongly withheld the record, a judge must award you reasonable attorneys’ fees. The judge must also award you a penalty of between $5- $100 for each day that access to the record was withheld.