In early 2008, a public records request was made to the Washington Department of Natural Resources for emails of a DNR official over the prior 2 years. While over 9,200 pages of emails and attachments were produced, emails from 2006 were not available as a result of DNR’s upgrade to its email system in late 2006. DNR engaged outside consultants to search for those records. However, the records could not be recovered. In response to a claim of violation of the Washington Public Records Act (PRA), the Court of Appeals found that DNR’s “destruction” of the emails did not violate the law (August 23, 2011).
The court distinguished cases in which records were destroyed after a request had been made. See Yacobellis v. City of Bellingham, 55 Wn. App. 706 (1989). Rather, the court found that DNR had not delayed in its efforts to produce available records and that it had no responsibility to create or produce a record that was now non-existent. See Building Indus. Ass’n of Wash. v. McCarthy, 152 Wn. App. 720, 734 (2009).
The court did, however , (by a 2 to 1 vote) determine that DNR’s failure to timely acknowledge a PRA request within 5 business days constituted an automatic violation of the PRA. That DNR responded and produced records before a lawsuit was commenced was not controlling. The court remanded the matter to the trial court to consider an award of attorney fees and penalty under former RCW 42.56.550(4).