By Oskar Rey, MRSC 

The public records reporting system is now open — Are you ready?

In 2017, the state legislature adopted ESHB 1594, which made significant amendments to public records laws. One of those changes is a new reporting requirement in RCW 40.14.026(5). It requires each agency with actual staff and legal costs associated with fulfilling public records request of at $100,000 during the prior fiscal year to report to the Joint Legislative Audit and Review Committee (JLARC) on 18 different public records metrics.

JLARC has put together a public records reporting page with a lot of helpful information designed to help agencies comply with this new reporting requirement, including agency guidance, FAQs, and cost estimation worksheets. In addition, the JLARC public records reporting system is now open, and instructions for using the system have been provided.

This blog post will cover some of the questions MRSC has received about JLARC public records reporting requirements.

Are we an “agency” for the purpose of ESHB 1594?
The Public Records Act (PRA) definition of agency applies, so if your agency is subject to the PRA, then ESHB 1594 applies to you. But, as detailed below, the law treats agencies who spend more than $100,000/year in staff and legal costs associated with fulfilling record requests differently than those who spend less.

What is the deadline for reporting for the initial 2017 reporting period?
The deadline is July 1, 2018. However, that day is a Sunday, so you might want to calendar it for Friday, June 29, 2018.

What is the 2017 reporting period?
ESHB 1594 took effect on July 23, 2017, so the 2017 reporting period is July 23, 2017 to December 31, 2017. After that, the reporting periods will be for the entire preceding calendar year.

I am sure my agency did not meet the $100,000 threshold. Are we in the clear?
No, your agency must still respond. Even if an agency did not meet the spending threshold, it must still log onto the JLARC public records reporting system and attest to that fact. Agencies will not submit their calculations in this regard. Also, an agency may choose to voluntarily report even if it does not meet the $100,000 threshold.

Are there tools to help estimate the costs of fulfilling public records costs?
Yes, tools are available. JLARC has provided a $100,000 Tool to help you determine if your agency is required to report and a Public Records Cost Estimation Worksheet for agencies that do report. These tools are provided as a convenience — agencies are not required to use them.

What if we didn’t closely track the metrics for the initial reporting period?
Here is what JLARC says about that in its Agency Guidance (p. 3):

Because JLARC guidance was not published until mid-November, JLARC recognizes that many agencies did not collect data in a manner consistent with these guidelines. With that said, agencies should make a good faith effort to provide the best quality data available.

I don’t understand one of the metrics — who can I turn to for help?
Check out the resources available on the JLARC public records reporting page, especially the Metric FAQs and the Agency Guidance. If you still need help, you can email JLARC at JLARCPublicRecStudy@leg.wa.gov.

Will JLARC audit the accuracy of information submitted?
No, each agency is responsible for the accuracy of the data it submits.

What will JLARC do with this information?
JLARC will collect the data reported and will provide a method for the public and the state legislature to view it. JLARC already performs a similar function with respect to municipal use of lodging tax revenues, and it may be that a similar approach will be used for public records.

What are the penalties for failure to report?
Failing to report would constitute a violation of RCW 40.14.026(5), but the statute does not create specific penalties. Failure to report would also be apparent to the public once JLARC publishes the data it receives from agencies.

How long will these reporting requirements last?
ESHB 1594 does not contain a “sunset” date for reporting, so this should be viewed as an ongoing annual requirement.

Under Washington state law, “the records of a person confined in jail shall be held in confidence” and made available only to criminal justice agencies as provided by law. RCW 70.48.100(2). In Zabala v. Okanogan County, the requester submitted five Public Records Act requests to the Okanogan County Sheriff’s Office and the Okanogan County Prosecuting Attorney’s Office. In combination, the requests sought any and all records, created in the last three years, related to monitored or recorded phone calls of inmates in the Chelan, Douglas, or Okanogan County jails, including voicemail, e-mail, audio, notes, reports, transcripts, arguments, pleadings, motions, briefs, memos, and letters. The agencies denied the requests as not being for identifiable records and because any responsive records were exempt from public disclosure.

Continue Reading Washington Court of Appeals Holds Jail Records Exemption Extends to Jail Recordings and Related Records Even if Created or Held by Another Agency

The first quarter of 2018 has seen a number of open government rulings and developments in Washington state. From a flurry of court decisions, legislative action, and a veto by the governor, to decisions addressing exemptions for education and law enforcement records, the summary below recaps recent legal developments under Washington’s Public Records Act (PRA), ch. 42.56 RCW.

Continue Reading First Quarter Public Records Roundup

Article II, Section 9 of the Montana state constitution protects the right to examine documents of public agencies. In Nelson v. City of Billings, the Montana Supreme Court held the state constitution did not require disclosure of attorney-client communications or attorney work product.

Article II, Section 9 provides, “No person shall be deprived of the right to examine documents of all public bodies or agencies . . . except in cases in which the demand of individual privacy clearly exceeds the merits of public disclosure.” Kevin Nelson claimed that because the only express exemption to this constitutional provision was “individual privacy,” attorney-client and work product documents were not exempt from disclosure.

Continue Reading Montana Supreme Court Holds Documents Protected by Attorney-Client Privilege or Work Product Not Subject to Disclosure Under State Constitution

The Washington Court of Appeals, Division Two, held that a Puyallup City Council member’s Facebook posts were not “public records” under Washington’s Public Records Act, Chapter 42.56 RCW, because the council member did not prepare the records within the scope of her official capacity as a member of the City Council.

The litigation centered on plaintiff Arthur West’ public records request to the City asking for all records sent to or received by City Council Member Julie Door’s “Friends of Julie Door” Facebook site. The City conducted a search of its own records and located one email, which it disclosed. The City did not disclose any posts on the “Friends of Julie Door” site.

Continue Reading Washington Court of Appeals Holds City Council Member’s Facebook Posts Are Not Public Records

The Washington State Attorney General filed an amicus brief on Wednesday, January 10, 2018, arguing that the Public Records Act, Chapter 42.56 RCW, applies to the Washington State Legislature and individual legislators. The brief was filed in a lawsuit pending in Thurston County Superior Court.

The plaintiffs in the matter, a group of news organizations including the Associated Press and The Seattle Times, submitted public records requests to individual legislators. In its own motion, the legislature takes the position that several amendments to the PRA, including amendments in 2007, removed legislators from the PRA. The 2007 amendments essentially removed the definition of “state legislative office” from the PRA by removing a cross reference to the campaign finance statutes, formerly Chapter 42.17 RCW.

Continue Reading Washington State Attorney General Argues Legislator Records are Subject to Public Disclosure

In Eggleston v. Asotin County, No. 34340-5-III, 2017 WL 6388976 (December 14, 2017), Division Three upheld the trial court’s decisions, holding that (1) an email between a contractor and subcontractor is not a “public record,” and therefore not subject to disclosure, and (2) preliminary drafts of a bridge project, which were not evaluative and contained no substantive comments, did not fall within the deliberative process exemption from disclosure, and thus should have been provided to requestor Eggleston. The court affirmed an award of $49,385.00 in penalties and $50,133.67 in attorney fees, staff fees and costs.

Asotin County engaged TD&H, an engineering firm, to replace a bridge. TD&H, in turn, was concerned about possible archaeological sites near the bridge, and consulted a geologist, Kevin Cannell, ultimately engaging him to perform a preliminary archaeological and cultural review of the proposed roadway for the bridge project. Before TD&H engaged him, Mr. Cannell had sent TD&H an email, offering his services. It is that email, from January 2002, that Eggleston sought.

Continue Reading An Email Between Vendor and Subvendor is Not a “Public Record”; Deliberative Process Exemption Does Not Apply Unless Opinions or Recommendations are Made

On November 17, 2017, the Joint Legislative Audit and Review Committee (JLARC) issued guidance on the new reporting requirements enacted by the legislature in 2017. Engrossed Substitute House Bill 1594, which became effective July 23, 2017, requires all agencies to maintain a log of all public records requests submitted to the agency, and imposes more detailed reporting requirements for agencies that spend at least $100,000 on staff and legal costs associated with fulfilling public records requests in the past fiscal year. See RCW 40.14.026(4), (5). These detailed reporting requirements include the average time to acknowledge and close out records requests; the number of requests abandoned by requesters; the type of requester (i.e., law firm, media, incarcerated persons, etc.), to the extent that information is known; and the estimated agency staff time spent on each request. RCW 40.14.026(5).

The JLARC guidance document provides agencies direction on the detailed reporting requirements, including (1) how to calculate the $100,000 threshold and (2) for agencies exceeding the $100,000 threshold, what data they should be collecting for submission by July 1, 2018.

Continue Reading Public Record Reporting Requirements: Guidance Issued for Washington Public Agencies

Division Three of the Washington Court of Appeals concluded that Benton County did not violate the Public Records Act, Chapter 42.56 RCW (PRA), by temporarily withholding records pending notice to a third party named in those records.

Donna Zink made a PRA request for records, which included records regarding sex offenders. The County sent third-party notices to the individuals named in those records, notifying them of the records request. The County’s notices stated that while RCW 42.56.540 permitted the notification, the County did not believe the records were exempt.

In response to the notices, one of the individuals named in the records, John Doe, filed a lawsuit against the County and the requester, seeking to enjoin production of any record identifying him. In an answer to the complaint, the requester asserted a cross claim against the County for violations of the PRA. The cross claim contended the County was withholding records without an applicable exemption, that the County was not required to give John Doe notice, and that the County provided that notice in order to delay or deny release of the records.

Continue Reading Washington Court of Appeals Holds Public Agency Does Not Violate Washington Public Records Act by Withholding Records Pending Third-Party Notification

Attorney General Opinion (AGO) 2017 No. 5 offers guidance on the confidentiality of information shared in an executive session of a public meeting under the Washington Open Public Meetings Act (OPMA), ch. 42.30 RCW.

The AGO first concludes that participants may not disclose information discussed in a properly-convened executive session under the OPMA. While the OPMA does not expressly state so, the “duty on the part of participants in an executive session not to disclose the information discussed there is part and parcel of the concept of an executive session.” The AGO relied on out of state authority, treatises, and legislative history to support its conclusion that maintaining confidentiality “is a legal obligation, and not solely a moral one.” This duty only extends to information relating to the statutorily authorized purpose for convening the executive session and not already publicly disclosed.

The AGO also concludes that any officer covered by the Code of Ethics of Municipal Officers, RCW 42.23 RCW, violates that statute by disclosing information made confidential by the OPMA. The Code of Ethics prohibits disclosing “confidential information gained by reason of the officer’s position” and applies to “all elected and appointed officers of a municipality, together with all deputies and assistants of such an officer, and all persons exercising or undertaking to exercise any of the powers or functions of a municipal officer.” RCW 42.23.070(4), RCW 42.23.020(2).

Continue Reading Washington State Attorney General Opinion Addresses Confidentiality of Executive Sessions of Open Public Meetings