Cracking down on “Silent Withholding”

Washington Supreme Court says statute of limitations can’t trump an agency’s failure to adequately identify records it seeks to shield from public disclosure.

In the first test of a new statute of limitations provision added to the state’s Public Records Act (PRA) four years ago, the Washington Supreme Court has overwhelmingly ruled that the new time limit for filing public records suits will not shield agencies who don’t make timely and sufficient efforts to tell records requesters what records are being withheld and why.

The decision was published today in the case of the Rental Housing Association of Puget Sound v. the City of Des Moines. The RHA’s suit against Des Moines stemmed from the association’s efforts, in 2005, to obtain information about the collection and use of crime-fighting fees the city charges rental property owners.

Although the factual history of the RHA case is dense given the numerous interactions between the association and the city regarding the records at issue, the question is a simple one: For purposes of enforcing the PRA, when should the one-year statute of limitations clock start?

Failure to provide the sort of identifying information a detailed privilege log contains defeats the very purpose of the PRA to achieve broad public access to agency records.–Justice Debra L. Stephens for the court majority.

The answer from the court is that the clock doesn’t start until the agency fully complies with its obligation to either provide all the records requested, or fully comply with the identification and disclosure requirements specified in the PRA if, and when, the agency decides to withhold certain records, or parts of records, from a requester.

“The key issue then,” wrote Justice Debra L. Stephens for the court majority, “is when a ‘claim of exemption’ is effectively made.”

And it can’t be effectively made, wrote Justice Stephens, when the agency is engaged in what the court had earlier described in a 1994 decision as “silent withholding” by not adequately identifying the record(s) it is refusing to turn over and explaining why it is not disclosing the record(s). By law, she wrote, withholding records under the act is only valid when and if the agency provides either a “privilege log” that makes the required identification and justifications, or a withholding index that provides the same information.

“Without the information a privilege log provides,” Justice Stephens wrote for the court majority, “a public citizen and a reviewing court cannot know (1) what individual records are being withheld, (2) which exemptions are being claimed for individual records, and (3) whether there is a valid basis for a claimed exemption for an individual record. Failure to provide the sort of identifying information a detailed privilege log contains defeats the very purpose of the PRA to achieve broad public access to agency records.”

Today’s ruling overturns a King County superior decision dismissing the RHA case on the basis of the statute of limitations and sends the case back to the lower court for resolution of the PRA violations alleged by the association against the city.

Justices Alexander, Sanders, Chambers, James Johnson and Charles Johnson, signed the majority decision. Justice Mary Fairhurst wrote a separagte concurrence also signed by Justice Owens. Justice Barbara Madsen was the lone dissenter.

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