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

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

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

The Washington Court of Appeals declined to decide what it called an “interesting and important issue” regarding an agency’s obligation under the Washington Public Records Act, Chapter 42.56 RCW (PRA), to obtain records from a third party in response to a public records request. Because the record and briefing on appeal left “unanswered factual questions,” the court vacated the trial court’s order granting summary judgment in favor of the Washington Department of Corrections (DOC).

In Baker v. Department of Corrections, No. 34967-5-III (Wash. App. June 29, 2017), a DOC inmate requested copies of negotiable financial instruments deposited by DOC into his inmate trust subaccount. With the assistance of Bank of America (BOA), DOC manages this internal trust accounting system to assist with inmate finances, such as an inmate’s court-imposed financial obligations. DOC scans the front and back of negotiable instruments (e.g., checks or money orders) with BOA’s proprietary software and transmits the digital images to BOA. The digital images are not stored on DOC’s system. DOC then destroys the paper copies of the negotiable instruments after a certain period of time.

Continue Reading Documents Held by Third-Party Vendor: An “Interesting and Important” Washington Public Records Act Issue Left Unresolved

Are Your Policies and Practices Up-To-Date?

On July 23, 2017, recent legislation on public records will take effect, impacting local governments across the state. Engrossed Substitute House Bill 1594 and Engrossed House Bill 1595 make a number of changes to the Public Records Act, Chapter 42.56 RCW (“PRA”), and Washington’s laws regarding preservation and destruction of public records, Chapter 40.14 RCW. In many cases, preparing for these changes will require revisions to agency policies on public records and updates to agency practices in processing requests.  Below are some highlights of the new legislation.

Charging for Electronic Records

Agencies will now be authorized to charge for the cost of producing electronic records, including the costs of delivery, the physical media device provided to the requester, and the costs of electronic file transfer or cloud-based data storage. Default fees are $0.10 per page for scanning records; $0.05 for every four files delivered to the requester electronically; and $0.10 per gigabyte for electronically transmitted records. Alternatively, an agency may charge a flat fee of up to $2.00 for the entire request as long as the agency reasonably estimates the cost will equal or exceed that amount.

Continue Reading New Public Records Act Legislation Taking Effect On July 23, 2017

In its second decision related to the Port of Vancouver’s lease of property for a new rail terminal facility to export petroleum products, 1 the Washington Supreme Court held that the Port appears to have violated the state’s Open Public Meetings Act, ch. 42.30 RCW (OPMA), in its discussion of the lease during five executive sessions held in 2013.

The case centers on RCW 42.30.110(1)(c), which permits public agencies to meet in executive session to “consider the minimum price at which real estate will be offered for sale or lease when public knowledge regarding such consideration would cause a likelihood of decreased price.” After considering the plain language of the statute, its legislative history, and the practical impacts of a narrow interpretation, the Court unanimously adopted a narrow reading of the statute:

Continue Reading Washington Supreme Court Holds That Executive Sessions On Real Estate Sales And Leases Must Be Focused On Minimum Price

By Jake Thomas from The Columbian

A Superior Court judge ruled Friday that Clark County violated the state’s public records act and must pay $15,750 in penalties for mishandling a dispute with former Councilor David Madore over the release of messages from his private cellphone.

The ruling from Judge Daniel Stahnke stems from a lawsuit filed last year by Community Planning Director Oliver Orjiako that alleged that the county didn’t adequately respond to his public records request for texts from Madore’s cellphone related to county business.

The lawsuit, which was related to harassment and whistleblower complaints Orjiako filed against Madore, cited Nissen v. Pierce County, a 2015 state Supreme Court decision that determined that communications generated on elected officials’ personal devices are public records if they pertain to public business.

Continue Reading What Happens When A County Elected Official Does Not Produce Records? Washington State Court Finds County Liable For Official’s Actions