On May 16, 2017, Washington Governor Jay Inslee signed two public records bills passed by the legislature in April, Engrossed Substitute House Bill 1594 and Engrossed House Bill 1595.

EHB 1595 addresses the costs associated with responding to requests made under the Washington Public Records Act, Chapter 42.56 RCW (“PRA”).

First, the bill permits agencies to charge for the cost of producing electronic documents, including costs of transmitting electronic records, the physical media device provided to the requester, and the costs of electronic file transfer or cloud-based data storage. Agencies may calculate their own actual costs, or charge default amounts set by the bill if making those calculations would be unduly burdensome. The bill’s default amounts are ten cents per page for scanning records; five cents for every four files delivered to the requester electronically; ten cents per gigabyte for electronically transmitted records; or a flat fee of up to two dollars as long as the agency reasonably estimates the cost will equal or exceed that amount.

Second, the bill addresses certain burdensome records requests. EHB 1595 provides that a request for “all or substantially all records” of a public agency is not a valid request for “identifiable” records under the PRA. Requesters may still request all records regarding a particular topic or keyword. The bill also provides that agencies may deny frequent, automatically-generated “bot requests” where responding would cause “excessive interference with other essential functions of the agency.”

The second bill, ESHB 1594, makes a number of revisions to the PRA and Washington’s laws regarding preservation and destruction of public records (Chapter 40.14 RCW). Some of these changes include:

  • Amending RCW 42.56.520 to add a new option for an agency’s initial response to a requester (also known as a “five-day letter”), allowing the agency to request clarification of an unclear request, but also requiring “to the greatest extent possible” a reasonable estimate of the time it will take the agency to respond if the request is not clarified. This change comes on the heels of Hikel v. City of Lynnwood, where the court concluded the City violated the PRA by requesting clarification without providing a reasonable estimate.
  • Amending the definition of “public record” to exclude records in the possession of certain volunteers when those records are not otherwise required to be retained by the agency.
  • Adding a training requirement for public records officers to address retention and disclosure of electronic records.
  • Requiring the state attorney general and the state archivist to provide training and consultation services on public records management.
  • Creating a grant program for local agencies to improve their information technology systems. The grant program, as well as the training and consultation services referenced above, are to be funded through a $1 surcharge on recorded documents.
  • Requiring public agencies to maintain a log of public records requests submitted to the agency, to include specific information about each request, and imposing a detailed reporting requirement for agencies that have spent at least $100,000 on staff and legal costs associated with fulfilling records requests in the past fiscal year.
  • Requiring, subject to available funding, the Secretary of State’s office to study the feasibility of “implementing a statewide open records portal through which a user can request and receive a response through a single internet web site relating to public records information.” A similar system has been implemented in Utah.