By Lee Marchisio with Steve DiJulio
On June 7, 2011, the Washington Court of Appeals remanded (for a second time) Zink v. City of Mesa to the trial court to calculate penalties against the City of Mesa for violating Washington’s Public Records Act (“PRA”). 2011 WL 2184965. Although the Court’s order came in an unpublished opinion, local governments can draw a number of lessons (and cautions) about the PRA from this case.
Washington local governments should take special note of how litigation influenced the number of penalty days assessed to Mesa; the different ways Mesa processed multiple and complex PRA requests; how Mesa responded to requests for non-existent and lost documents; how Mesa managed attorney-client privileged documents; and, how Mesa responded to requests for documents that the requestor already possessed. In this summary, we use the term “city” rather than “agency” or “local government,” for convenience only.
Lessons on How Litigation Affects Penalty Day Calculations
Q: If a city prevails at trial on withholding a record and later loses on appeal, is the city subject to penalty days for the period between the trial court order and the appellate court reversal?
A: Yes, the days between the trial court judgment and the appellate court reversal are included in the final penalty calculation. 2011 WL 2184965 at *6.
Q: Is a city subject to penalty days after a trial court orders a release of documents under the PRA?
A: Yes, a city is subject to additional PRA sanctions for delaying release of a public record after a court order. Id. Requestors may bring an additional PRA action to recover these penalties. Cities are also subject to Washington’s contempt laws for not complying with court orders. Chapter 7.21 RCW.
In the Zink v. City of Mesa litigation, the Zinks may still have a cause of action under the PRA or a remedial action for contempt of court under RCW 7.21.030 if Mesa did not properly comply with the trial court orders to produce records.
Q: Is a city ever subject to penalty days for the 5-day reply period under RCW 42.56.520?
A: Yes, if a city improperly denies a request within the 5-day reply period, then the records are improperly withheld for every day in which the record request was denied, including any portion of the 5-day reply period. Id. at *7-8.
Lessons on Managing Multiple and Complex PRA Requests
Q: Can requestors ask for “all public records” relating to a specific city matter?
A: Yes, if a city receives a request for “all public records” with respect to a specific matter, then the city’s failure to produce a document related to that matter constitutes a “silent withholding” in violation of the PRA. Id. at *8.
Ms. Zink’s request for all public records regarding the Zink’s property was sufficient to put Mesa on notice that a complaint issued against the Zink’s property was included in Ms. Zink’s request. Mesa’s failure to produce the requested complaint amounted to a “silent withholding” of public records in violation of the PRA.
Q: Is a city liable for separate penalties for every document in a request?
A: Sometimes, trial courts have discretion to group documents as a single request based on the city’s culpability as opposed to the size or volume of records requested. Id. at *9.
Penalties better serve the PRA’s purpose when they are directed at agency culpability as opposed to size of request. In Zink v. City of Mesa, the Zink’s request for an audio tape recording, meeting minutes, and rules and regulations adopted in a November 13, 2002 meeting were grouped together as one PRA request.
Q: If a city wrongfully redacts a record, then is it subject to penalty days for withholding the record starting from the date of the original request?
A: No, if a city wrongfully redacts records, then the penalty period only begins on the day that the city was required to produce the record and not on an earlier date. Id.
Mesa properly withheld records for 30 days in order to assemble them in response to the Zink’s multiple requests. However, the City violated the PRA when it provided wrongfully redacted copies on the date that it was required to provide unredacted copies.
Q: If a city receives a request that is substantially the same as a prior request, but only for a different time period, then is this a separate request for penalty purposes?
A: Not necessarily, the trial court has discretion to group the requests together as essentially one continuous request for penalty purposes. Id. at *10.
The Zinks requested all correspondence between Mesa and Mesa’s city attorney and also between Mesa and the Municipal Research and Services Center. A second request for subsequent communications between the same parties was treated as a single PRA request because they were for “essentially the same documents.”
Q: Can a city delay production of easily producible ordinances, board rules, and adopted regulations beyond the 5-day reply period?
A: Sometimes, a city is occasionally justified in delaying the production of easily producible records if it can show that the requested items accompany multiple other requests for documents that are time consuming to produce. Id.
Mesa properly delayed a request for minutes and adopted rules and regulations from a city council meeting when the request also included telephone logs and 18 residential files.
Q: Can a city direct a requestor to submit requests directly to the city attorney?
A: No, when a city directs a requestor to inquire with another official in the city, this referral is effectively a wrongful denial and penalties accrue beginning on the date of the denial. Id. at *11.
Directing Ms. Zink to contact the city attorney for a specific document was effectively a wrongful denial of a record and Mesa’s penalties accrued beginning on the date Ms. Zink was directed to the city attorney.
Q: Can a city limit viewing files to a one hour period during the day?
A: No, limiting Ms. Zink’s access to files for one hour on one day subjected Mesa to the maximum $100 penalty for that day. Id. at *11-12.
Q: Can a city delay production of a file once it is made available for viewing?
A: No, once a file is reasonably available for viewing, a city is subject to per-day penalty amounts for later restricting access to those files while also failing to provide copies of those files. Id.
Q: Can a city treat a requestor who asks for one ordinance differently than a requestor who asks for the same ordinance along with numerous other records?
A: Sometimes, when a request for a simple document, like an ordinance, is submitted with several other requests, the production of that ordinance may be delayed even if other requestors are provided that ordinance on the day of their request and even if it was the city that required the request to be put in writing. Id. at *14.
Ms. Zink’s request for a copy of a city ordinance was properly delayed because it accompanied multiple other requests even though her sister-in-law received the same ordinance on the same day she requested it.
Q: If a city groups multiple request together in writing, then will this be treated as one records request?
A: Not necessarily, although a city may decide to group requests together, trial courts have discretion to separate these requests for determining the number of penalty days. Id. at *15.
Mesa’s error in withholding several documents did not entitle it to have those documents grouped together as one request.
Lessons on Responding to Requests for Lost or Non-Existent Documents
Q: Is a city subject to penalties for failing to produce records that do not exist when the city is required by a separate statute to create that record?
A: No, even if a city is required by statute to generate a particular writing, like minutes, the PRA does not state that an agency’s violation of independent statutory duties to prepare records is also a violation of the PRA. A city is subject to PRA penalties only when the requested record actually exists. Id. at *12-13.
Q: If a requestor submits multiple requests at the same time, can a city treat the requests together and delay their production until all of the records are complied?
A: Yes, high volume requests may be assembled and released together. Id. at *13.
Q: Does a city need to respond to a request for documents that do not exist by stating that the documents do not exist?
A: Not necessarily, a city has no duty to state that records do not exist at the time of a particular request. Id. at *14. The PRA does not compel production of records that do not exist.
Mesa’s response that it would take 30 days to produce a record that it knew did not exist was not a violation of the PRA. The city intended to adopt the requested procedures within that time and then released them once they were enacted.
Q: Can a city delay production of ordinances and resolutions that accompany requests for non-existent documents?
A: Yes, a delay is reasonable when a city attempts to provide all of the legislative enactments together when they were requested at the same time, including enactments that do not yet exist. Id.
Lessons on Producing Attorney-Client Privileged Documents
Q: If a city claims that a document is exempt from disclosure as an attorney-client communication, is it required to justify that exemption?
A: Yes, to assert attorney-client privilege for public documents, the PRA requires cities to provide an exemption log detailing identifying information about the document and a brief explanation of how the statutory exemption applies to each specific record. Id. at *16.
Q: If a city inadvertently discloses attorney-client privileged documents, does this waiver subject the city to penalties for withholding public records?
A: No, accidental release of attorney-client privileged documents does not subject a city to penalties for withholding those records for the period in which they were properly under the attorney-client privilege. Id. at *16-17.
Lesson on Losing Original Documents
Q: If a city loses a signed version of a document, but produces a substantially similar document that is unsigned, then does the unsigned version comply with the PRA?
A: Yes, if the unsigned copies provide substantially the same information as what would have been provided with the signed copies. Id. at *18.
When Mesa provided the unsigned copies of minutes, it substantially fulfilled the purposes of the PRA by providing the Zinks full access to information concerning the conduct of government.
Lesson on the Statute of Limitations for PRA Claims
Q: Does the 5-year statute of limitations on bringing a PRA action limit PRA per-day violations to 1,827 days (5 years)?
A: No, the 5-year statute of limitations only limits the scope of PRA claims to violations that occurred within five years prior to filing the complaint. Id. Violations that occurred during the 5-year limitation period, however, will be penalized for each day that the requestor was denied the right to inspect or copy the public record. Similarly, the 1-year statute of limitations in RCW 42.56.550 does not limit the number of per-day violations that can accrue. Id.
Lessons on Documents Released Prior to PRA Litigation and
Documents Already Possessed by Requestors
Q: If a city fails to comply with the PRA for a period of time, but then complies prior to the requestor filing suit, is the city still liable under the PRA?
A: Yes, a city is liable for PRA violations regardless of whether PRA litigation is needed to compel the city to produce requested documents. Id. at *19.
Q: If a city knows that the requestor already has the document that is being requested, does the city still need to produce that document upon request?
A: Yes, a city is subject to penalties for not producing public records regardless of whether the requestor already possesses those records. Id.
Ms. Zink requested copies of correspondence from the Zinks to the City of Mesa. Mesa’s knowledge that Ms. Zink already possessed the requested documents was not a defense to withholding those documents because the date-stamped copy of a correspondence between the Zinks and Mesa is defined as a public record.