PRA Initial Response Requires Reasonable Estimate Of When Records may be Provided

A Washington court of appeals ruled that the City of Lynnwood violated the Washington Public Records Act (“PRA”) when it failed to provide “any reasonable estimate when records would be provided” in its initial response to a broad records request. Hikel v. City of Lynnwood, No. 74536-1-I (Dec. 27, 2016).

The appellate court affirmed the trial court’s rejection of other PRA claims by a former City Councilmember, represented in the case by the City’s former mayor. The trial court had earlier rejected all of the claims.

But the appellate court found that, despite the City’s efforts to comply with the PRA, the initial response to the request did not satisfy RCW 42.56.520. That provision requires a response within five business days of receipt of the request. If the agency needs additional time, it must acknowledge the request and include “a reasonable estimate of the time the agency...will require to respond.” RCW 42.56.520(3). A reasonable estimate of the time needed to provide a first installment of records has been found compliant. Opinion at p. 10 (citing Hobbs v. Wash. State Auditor’s Office, 183 Wn. App. 925, 943, 335 P.3d 1004 (2014)).

The City’s initial response had asked for clarification due to the large volume of responsive records and advised that it would provide an estimate after it received clarification from the requester. The City then provided its estimate 11 days later. The appellate court held that the City’s initial response was a procedural violation of the PRA. The City was not liable for penalties, but it was subject to an attorney fee claim as to that single violation.

Public records officers will use this case as a further check to be added to the already-long checklist to assure PRA compliance.

Court Of Appeals Reverses Large Public Records Act Penalty Imposed On University Of Washington

In Bichindaritz v. University of Washington, Division One of the Court of Appeals reversed a $723,290.50 penalty and $102,958.03 attorney fee award for violations of the Public Records Act by the University of Washington.  The trial court had concluded that the University’s production of documents to the requestor, a former employee who had sued the University, was not in good faith and that the University waited too long to produce records it had already assembled but had not yet reviewed.  The University appealed.

In particular, the University challenged the trial court’s conclusion that as soon as the University had assembled the responsive documents, they were ready to be produced to the requestor.  The Court of Appeals agreed with the University, explaining that the Public Records Act requires that responses to records requests be made “promptly,” but also expressly recognizes that an agency may need additional time to determine whether any part of the information requested is exempt.  See RCW 42.56.520.  As the court summarized:

By the time Bichindaritz closed her 2009 request in February 2011, the University had assembled about 25,000 pages but had reviewed only about half of them for exemptions.  It was unreasonable to expect the University to produce the remaining 12,000 pages the same day Bichindaritz reopened her request simply because it had already assembled those documents.

Opinion at 7 (emphasis in original).

The Court of Appeals also rejected the requestor’s argument that the University’s violation could be sustained on the basis that the University “repeatedly missed production deadlines.”  The court observed that the Public Records Act demands only that an agency provide reasonable estimates for production—not necessarily that an agency comply with its own self-imposed deadlines.  “The question is whether the agency ‘was acting diligently in responding to the request in a reasonable and thorough manner.’”  Opinion at 9 (citing the recent decision in Hobbs v. State).  Here, the requestor did not argue – and the record did not indicate – that the University was less than diligent in completing its review and redaction of the final records for production.  Concluding that the University had not violated the Public Records Act, the Court of Appeals reversed the trial court’s imposition of penalties and attorney fees.