Open Public Records Act
RCW 42.56
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• https://www.youtube.com/watch?v=38k1XPpT9Po
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Open Government Laws are often
called “Transparency Laws” or
“Sunshine Laws”
This is because they “shine light” on government.
U.S. Supreme Court Justice Louis Brandeis once
famously said, “Sunlight is the best disinfectant.”
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Transparency builds public confidence in government.
Washington - Two Different Statutes
Open Public
Records
Open Public
Meetings
RCW 42.56
RCW 42.30
Public Records Act
(PRA)
Open Public Meetings Act
(OPMA)
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Intent
Open Public Records
• “The people of this state do not yield
their sovereignty to the agencies that
serve them.”
• “The people, in delegating authority, do
not give their public servants the right
to decide what is good for the people
to know and what is not good for them
to know.”
• “The people insist on remaining
informed so that they may maintain
control over the instruments that they
have created.”
• The “free and open examination of
public records is in the public interest,
even though such examination may
cause inconvenience or
embarrassment to public officials or
others.”
Open Public Meetings
• “The people of this state do not yield
their sovereignty to the agencies
which serve them.”
• “The people, in delegating authority,
do not give their public servants the
right to decide what is good for the
people to know and what is not good
for them to know.”
• “The people insist on remaining
informed so that they may retain
control over the instruments they
have created.”
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History
Open Public Records
• PRA passed via Initiative 276 in
1972. Formerly in RCW 42.17 –
now RCW 42.56.
• Applies to all public agencies, state
and local.
• Does not apply to courts.
• Limited application to Legislature.
• Applies to “public records” which
are defined to include “writings.”
• Records are open unless there is
an exemption authorized by law.
Open Public Meetings
• OPMA passed in 1971. RCW
42.30. Minutes requirement in
another law - RCW 42.32.
• Applies to all multimember public
agency boards and commission
governing bodies, and their
committees.
• Does not apply to courts.
• Does not apply to Legislature.
• Requires meetings of governing
body to be open gavel-to-gavel,
unless there is an exception
authorized by law.
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Touchstone:
Open Public Records
Open Public Meetings
• Records of public
agencies are presumed
open.
• PRA is to be liberally
construed.
• Records or information
in records can be
withheld only by law
(e.g. exemption in
law).
• Applies to Functional
Equivalent
• Meetings of agencies
subject to the OPMA
are presumed open.
• OPMA is to be liberally
construed.
• Meetings or parts of
meetings can be closed
only by law (e.g.
executive sessions).
• Applies to Boards and
Committees of Boards
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Public Record
Public record is very broadly defined:
• any writing
• containing information
• relating to
• the conduct of government or
• the performance of any governmental or
proprietary function
• prepared, owned, used, or retained
• by any state or local agency
• regardless of physical form or characteristics.”
~ RCW 42.56.030
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•Prepared by Washington State Attorney General’s Office
Writing
• The term “Writing” includes “handwriting,
typewriting, printing, photostating, photographing,
and every other means of recording any form of
communication or representation including, but not
limited to . . . [just about everything you can think
of.]
• No distinction between hard copy and electronic
data – metadata must be disclosed when requested
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Note: Public Records can also
include records of agency
business when they are
created or retained by agency
employees or officials on
home computers or in nonagency email accounts or on
private communication
devices.
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The senior US Senator from Illinois
privately emailed University of Illinois at
Urbana-Champaign Chancellor Phyllis
Wise to offer his backing as she faced a
storm of protest over the firing of Steven
Salaita.
The Electronic Intifada obtained Senator
Richard Durbin’s 18 September 2014 email
from the university under the Freedom of
Information Act (see below for full email).
“Phyllis, I want you to know that I totally
understood the difficult decision you faced
in the recent tenure dispute and never
doubted that you acted in a good faith
effort to serve the University and its
values,” Durbin wrote.
As minority whip, Durbin holds the second
most senior position in the Democratic
leadership in the US Senate.
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What Illinois Kept Secret
University admits some officials used personal
email accounts to inappropriately withhold
information sought in FOIA requests on Salaita
and other controversies. Here's what the
chancellor and others didn't want known.
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Requests for Public Records
•
•
•
•
•
•
Persons may request identifiable public records:
Requesters may request to inspect public records.
Requestors may request copies of pubic records.
Agencies may adopt procedures explaining where requests must be
submitted and other procedures.
The public records act does not apply to requests solely for information
For the University’s procedures see: WAC 478-276 and APS 57.9
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Responses to Requests
The University must respond within five business days to a PRA request
by:
1. Acknowledge receipt of the request and provide a reasonable
estimate of time for further response (time for response can be
extended); or
2. Fulfill the request; or
3. Provide an internet address and link to the records on the agency’s
website (which fulfills part or all of the request) an example might be
the university’s financial report
http://f2.washington.edu/fm/uwar/annualreport2015.pdf; or
4. Seek clarification; or,
5. Deny the request with an accompanying written statement of the
specific reasons.
Commonly requested documents could be placed on a website
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Searches
An agency must conduct an adequate search for responsive records.
• Must be reasonably calculated to uncover responsive records.
• Must follow obvious leads to possible locations where records are
likely to be found. More than one location is often the case.
• Best Practice: DOCUMENT search efforts – record the locations,
search terms used and other information to prove an adequate search
was made
NOTE: The agency bears the burden of proof to show the adequacy of
the search.
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Contacting Third Parties
• RCW 42.56.540 gives the University the “option” to notify
persons named in a record or to whom a record pertains, that
the record has been requested. The University may give such
person a reasonable amount of time to seek an injunction
against disclosure before complying with a request for nonexempt records
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Responding: Exemptions
• By law, agency records are presumed to be public.
• General Rule: Agency may withhold only the portion of a
record that is clearly exempt.
• Exemptions must be authorized in law. Examples – student
records, health care records, attorney client communications
• Exemptions are narrowly construed.
• Agency must provide brief explanation for each exemption.
• May not deny request simply because it is overly broad
• Responses must include reason for exemption and how it
applies
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Privacy
No general “privacy” exemption.
If privacy is an express element of another exemption, privacy is
invaded only if disclosure about the person would be:
1. “Highly offensive to the reasonable person” and
2. “Not of legitimate concern to the public.”
Information that does not satisfy both these
factors cannot be withheld as “private”
information
•Adapted from training prepared by Washington State Attorney General’s Office
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Common Exemptions
• Personal information – very narrow. The statute says:
• (3) Personal information in files maintained for employees,
appointees, or elected officials of any public agency to the extent
that disclosure would violate their right to privacy;
•
•
•
•
Investigative Files –law enforcement
Education Records- FERPA
Attorney/Client privileged information
Protected health care information – Federal and state law
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Other particular statutes to
point out
•
•
•
•
RCW 42.56.250
Employment and licensing.
…
(3) The following information held by any public agency in
personnel records, public employment related records,
volunteer rosters, or included in any mailing list of employees
or volunteers of any public agency: Residential addresses,
residential telephone numbers, personal wireless telephone
numbers, personal electronic mail addresses, social security
numbers, driver's license numbers, identicard numbers, and
emergency contact information of employees or volunteers of
a public agency, and the names, dates of birth, residential
addresses, residential telephone numbers, personal wireless
telephone numbers, personal electronic mail addresses, social
security numbers, and emergency contact information of
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Enforcement & Penalties
• PRA enforced by courts.
• Up to $100 for each day at least one record
was withheld
• A court can impose civil penalties.
• A court will award requester’s attorneys fees
and costs.
The agency has the burden of proof to
demonstrate to a court that public
records were lawfully denied
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University resources
• http://www.washington.edu
/admin/rules/policies/APS/5
7.09.html
• http://apps.leg.wa.gov/WAC
/default.aspx?cite=478276&full=true
• http://f2.washington.edu/f
m/recmgt/retentionschedul
es/gs/general
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