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Ask MRSC Archives

Below are selected “Ask MRSC” inquiries we have received from local governments throughout Washington State in recent months and years. Click on any question to see the answer; use the drop-down menu to browse inquiries by topic.

These questions are for educational purposes only. All questions and answers have been edited and adapted for posting to the MRSC website, and all identifying information, including the inquirer’s name and agency name, has been removed.


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GO

Does the city council have to approve grant applications before they can be submitted?
Reviewed: 09/20

MRSC has consistently advised that absent a written city policy to the contrary, the administration can apply for a grant without council approval. However, under RCW 35A.11.040, acceptance of any grant requires council approval. In addition, a grant is a contract, and under RCW 35A.11.010, the city council is the contracting authority for the city.

Because the council is the contracting authority, there is no statutory reason why it could not adopt a policy regarding applying for grants. Some cities have tied grant application authority to purchasing or contracting authority; if the grant amount is within the mayor’s signature authority no prior council authorization is needed. Some cities have adopted policies saying that if the grant requires city matching funds, especially if those funds have not been allocated in the city’s budget, the administration needs council approval to apply.

Accepting a grant always comes with conditions; sometimes those are financial, and sometimes they are policy. For example, grants for historical renovations frequently ties the recipient’s hands in some management aspects for decades. Each city needs to find the balance between recognizing council’s policy and budget roles with the need for the administration to move quickly on some applications.

(Link to this question)

On Small Works projects that are under $150,000 where the contractor has the option of retaining 10% in lieu of a Performance Bond, is the contractor required to furnish a Payment Bond if they choose to withhold the 10% in lieu of Performance Bond?
Reviewed: 09/20

The contractor would not be required to provide the Payment/Performance bond if it is being waived, which requires 10% retainage being held instead. However, if this bond waiver option is selected, then you will need to hold retainage even though retainage can be waived in the small works roster process. The only small works roster process where you can waive both retainage and the bond is for limited public works projects.

Some agencies do request separate payment and performance bonds. This waiver could waive both; you would need to determine what you will require and communicate the requirement to your bidders.

(Link to this question)

When a town councilmember is serving as mayor pro tem, do they still have the same voting rights as they always do as a councilmember?
Reviewed: 09/20

The mayor pro tem retains all the rights and responsibilities of a councilmember, including the right to vote on council business.

Here are the legal authorities for this issue:

  • RCW 35.27.160 provides, in relevant part: “A mayor pro tempore may be chosen by the council for a specified period of time, not to exceed six months, to act as the mayor in the absence of the mayor.”
  • RCW 35.27.280 provides, in part, that “a majority of the councilmembers shall constitute a quorum for the transaction of business”. This statute also references the authority for the council to appoint a “president pro tempore” (mayor pro tem) to run a council meeting in the absence of the mayor.

A councilmember does not cease being a councilmember by virtue of undertaking the additional duties of pro tem to conduct a meeting in the absence of the mayor.

(Link to this question)

What is a local government agency's responsibility to be available to accept legal papers served by a processor during COVID-19, especially when they have closed their offices to the public? Do we have to have a location open during this time to accept papers? Can it be done by appointment? Are we in violation of a law if we do not have a location that is open to the public to serve?
Reviewed: 09/20

Having your offices closed during the “Stay Home-Stay Healthy” order does complicate this a little bit. MRSC has advised that agencies can decide what “essential functions” are if that decision doesn’t violate the governor’s guidance. So, you could set up an appointment to allow for physical service of process. If you choose not to open your office for physical service, a plaintiff has the right to ask a court to allow service by some other method – publication in a newspaper under RCW 4.28.100, or by mail under CR 4(d)(4).

Improper service of process is a defense to a lawsuit. A party can voluntarily give up that defense. So, you can (but are not required to) agree to accept service some other way – either by fax, email, or something else. We recommend that you discuss your options with your agency’s attorney.

Service of process is generally controlled by Chapter 4.28 RCW and by Rule 4 of the Civil Rules for Superior Court (CR 4). The only governor’s proclamation we are aware of related to service of process is specific to protection orders (see COVID-19: Protection Orders and Personal Service). We also are not aware of an order from the Washington State Supreme Court suspending or amending CR4.

Absent any specific order, it appears that the provisions of RCW 4.28.080 apply. There is no specific provision for transit agencies. RCW 4.28.080(9) appears to be the most applicable provision:

  • If against a company or corporation other than those designated in subsections (1) through (8) of this section, to the president or other head of the company or corporation, the registered agent, secretary, cashier or managing agent thereof or to the secretary, stenographer or office assistant of the president or other head of the company or corporation, registered agent, secretary, cashier or managing agent.

That language may seem applicable only to private corporations, but note that subsection (2) of RCW 4.28.080 covers cities and towns and subsection (3) covers school and fire districts. As a result, we think the reference in subsection (9) to corporations “other than those designated in subsections (1) through (8) of this section” includes municipal corporations, which includes public transit districts.

(Link to this question)

If a staff member installs and uses a cloud-based communications tool like Microsoft Teams on their personal cell phone, is it possible that their phone would be subject to a search for information, in response to a public records request?
Reviewed: 09/20

Agencies are required to conduct a reasonable search of the likely locations for responsive records. If you are confident that nothing is stored on the local device, then the personal device would be an unlikely location to find responsive records.

Note that sometimes users will opt to download records to the local device. The PRO will still need to coordinate with the staffer and potentially have the staffer search their own device for responsive records. See the section on “Searching for Records on Personal Devices” our Searching and Producing Public Records topic page.

Also, you would want to confirm that the personal device was set up so that it is in fact fully synced with the remote server. For example, the Outlook app for iPhone can be configured so that changes made in the local view are not necessarily the same as the desktop view (like “mark as unread”, etc.).

It is possible that some sort of transitory/temporary file is stored on the local device, but this data is of a temporary nature and usually overwrites very quickly and is not generally accessible by reasonable means (but you will want to confirm this with Microsoft.) Keep in mind that metadata only needs to be produced if specifically requested, and only if technically feasible and financially reasonable for the agency to do so.

You will want to fully document your decision-making process, evidence that all records are actually stored on the remote server such that comprehensive searching of a personal devices by the staff member is probably not necessary, as well as any configuration requirements. Make sure the public records officer has a copy of that documentation.

As an aside, we here at MRSC have been looking into using Microsoft Teams (we are currently on the older Office 365 suite) precisely because the remote server captures all the communications and makes retention and search of such records much more centralized.

(Link to this question)

Is it legal to pay an independent contractor an hourly rate less than minimum wage?
Reviewed: 09/20

Independent contractors are exempt from minimum wage requirements. See RCW 49.46.010(3)(d) defining "employee" for purposes of the state minimum wage act, to specifically not include "[a]ny individual engaged in the activities of an . . . local government body . . . where the employer-employee relationship does not in fact exist . . ."

As stated by the Department of Labor and Industries (L&I) in its administrative policy on the Minimum Wage Act Applicability, "A bona fide independent contractor is exempt from the MWA (Minimum Wage Act) because that person is not 'employed' by an employer."

The critical thing here is to make sure that the individual is truly an independent contractor. The test for whether someone is an independent contractor depends to a great extent on the amount of control the employer has over the worker. Some guides that may be of use to you (in the event you are unsure whether a worker is an employee or an independent contractor) are:

(Link to this question)

Should organizations still receive the lodging tax awards that were approved for the 2020 Budget for events that have been cancelled due to the COVID-19 outbreak?
Reviewed: 08/20

We have provided relevant guidance on our COVID-19 Frequently Asked Questions (FAQ) webpage:

These detailed FAQs cover various scenarios including when distributions have been made and costs already incurred by a recipient of funds whose event has been cancelled, or when money has been awarded but no contract has yet been executed.

As noted in the first response, both the use and the dollar amount of lodging tax allocations that have been approved by the legislative body may be changed, but the use of funds must always be consistent with RCW 67.28.1816 and RCW 67.28.080. Lodging tax funds are restricted resources that must be used according to state statute, regardless of the pandemic and its attendant financial challenges. Limits on the use of these restricted resources have not been waived by any of the governor’s proclamations to date.

(Link to this question)

How much of the 49.4 cents per gallon motor vehicle fuel tax is kept by the state and how much is distributed to the cities on a per capita basis?
Reviewed: 08/20

The allocations of the motor vehicle fuel tax (MVFT) are done by percentage according to RCW 46.68.090, based upon the various portions of the MVFT collected in RCW 82.38.030:

  • Of the first 23 cents per-gallon in RCW 82.38.030(1) – cities receive 10.6961% of the tax collected, counties receive 19.2287% and the state retains the remainder.
  • Of the 2005 tax (RCW 82.38.030(3)) imposed for an additional 3 cents per gallon – the cities receive 8.3333% of the tax collected.
  • Of the 2006 tax (RCW 82.38.030(4)) imposed for an additional 3 cents per gallon – the cities receive 8.3333% of the tax collected.
  • Of the tax imposed in sub-section (7) and (8) for 11.9 cents per gallon the distribution by the state is a direct appropriation of $5,859,500 to cities which is allocated on a per capita basis. There is no % of allocation.

As you can see, the formulas for calculating the distribution of the various portions of the MVFT are complicated, with allocations being made to numerous programs of the state on specific portions of the tax.

(Link to this question)

Who has the authority to make changes to council meeting minutes?
Reviewed: 08/20

City councils are required to keep minutes pursuant to RCW 42.30.035:

The minutes of all regular and special meetings except executive sessions of such boards, commissions, agencies or authorities shall be promptly recorded and such records shall be open to public inspection.

State law does not impose any additional requirements, so individual cities typically adopt rules or procedures regarding meeting minutes. Meeting minutes are usually approved by the city council. If a councilmember wants to make a change to minutes that have been previously approved, he or she should bring a motion to amend the minutes at a council meeting. The council would decide whether or not to approve the motion.

(Link to this question)

What does it mean to "call the question" under parliamentary procedures?
Reviewed: 08/20

Here is an excerpt on calling the question from our Parliamentary Procedures webpage, which summarizes Robert’s Rules of Order:

  • Previous question or close debate. Used to bring the body to an immediate vote. It closes debate and stops further amendment. Contrary to some misconceptions, the majority decides when enough discussion has occurred, not the moderator. The formal motion is to "call for the question" or "call for the previous question," or simply, "I move to close debate." The motion requires a second, is not debatable and requires a two-thirds majority.

In addition, Ann Macfarlane on her Jurassic Parliament webpage has a nice summary of how to call the question (as well as how not to). And finally, Robert’s Rules has an FAQ on “calling the question” (a.k.a. “previous question”)—see FAQ #11.

(Link to this question)

Can a city file a lien on the stormwater utility portion of a utility bill in connection with filing a sewer lien?
Reviewed: 07/20

Yes, stormwater utility service falls within the scope of the definition of “system of sewerage” in RCW 35.67.010, which includes the following:

  1. Sanitary sewage collection, treatment, and/or disposal facilities and services, on-site or off-site sanitary sewerage facilities, inspection services and maintenance services for public or private on-site systems, or any other means of sewage treatment and disposal approved by the city;
  2. Combined sanitary sewage disposal and storm or surface water sewers;
  3. Storm or surface water sewers;
  4. Outfalls for storm drainage or sanitary sewage and works, plants, and facilities for storm drainage or sanitary sewage treatment and disposal, and rights and interests in property relating to the system;
  5. Combined water and sewerage systems;
  6. Point and nonpoint water pollution monitoring programs that are directly related to the sewerage facilities and programs operated by a city or town;
  7. Public restroom and sanitary facilities; and
  8. Any combination of or part of any or all of such facilities.

Therefore, MRSC takes the position that surface water utility charges may be included in a sewer lien, which would follow the processes outlined in RCW 35.67.200 through RCW 35.67.290.

(Link to this question)

What are the requirements for the retention of payroll records?
Reviewed: 07/20

The Washington State Archivist and the Local Records Committee are authorized and directed by statute (RCW 40.14.070) to issue retention schedules. The local government common records retention schedule (CORE) is the relevant guidance for local government records.

Payroll records are tricky because different retention requirements apply to different types of payroll information. In particular, information relating to eligibility for retirement benefits can have a very long retention period. The State Department of Retirement Services may need such records many years later to determine a former employee’s eligibility for retirement benefits.

Fortunately, in 2017, the Washington State Archivist issued a training video that addresses some of the retention issues regarding payroll records. The video explains what types of payroll information are necessary for verifying retirement eligibility.

The CORE items that relate to payroll include:

Some agencies may choose to retain all of their payroll records for a long period instead of just the records needed to verify eligibility for retirement benefits.

(Link to this question)

Is it a conflict of interest for a councilmember to be appointed to the planning commission?
Reviewed: 07/20

We do not think a councilmember should also serve on the planning commission because of the common law doctrine of Incompatible Offices. The doctrine provides that the same person cannot hold two public offices at the same time if the offices are incompatible. Although there is not a court opinion or Attorney General’s guidance evaluating the compatibility of these two particular offices, MRSC takes the position that these public offices are incompatible. This is in part because a planning commission makes recommendations to a city council, and a person serving on both bodies would be in a position to approve his or her own recommendations. Here is an excerpt from our Code City Handbook (p. 40) about this issue:

  • Elective officers of the city should not assume additional municipal duties that are incompatible with those of their elective office. One practical test of incompatibility is whether one position is subordinate to the other in some of its important and principal duties. Under common law, one person cannot be both master and servant or principal and subordinate.

In AGO 2016 No. 7, the Attorney General’s office looked at the offices of planning commissioner and school board member, and concluded the offices were likely incompatible, although the AG noted this would be “an extremely close call” and “a court could reasonably reach the opposite conclusion.” The opinion provides, in part:

  • We also considered that planning commissioners act in an advisory role, with final decisions regarding land use matters entrusted to the city council. RCW 35.63.100. The advisory nature of the body does not change our analysis because, as noted, the commission “may act as the research and fact-finding agency of the municipality.” RCW 35.63.060. Its role includes making inquiries, investigations, and surveys concerning land use resources in the county, assembling and analyzing data, and working with other agencies on land use planning. RCW 35.63.060. In some jurisdictions they also perform a quasi-judicial function. RCW 35.63.130.

In conclusion, we do not think a councilmember may also serve on your planning commission.

(Link to this question)

We appointed a councilmember for a vacant seat in January 2018. It was for a 4-year position, and the position is now up for election for the last two years of the term (expiring December 2021). The incumbent did not run, so does the councilmember-elect fill the position after the election is certified?
Reviewed: 07/20

Vacancies are addressed in RCW 42.12.070. Subsection (6) addresses the timing of when the person elected in November 2019 takes office:

  • As provided in chapter 29A.24 RCW, each person who is appointed shall serve until a qualified person is elected at the next election at which a member of the governing body normally would be elected. The person elected shall take office immediately and serve the remainder of the unexpired term.

So yes, when an appointed position is up for election, the winner of the election serves two terms—a short term (from election certification to the end of the year) and then the unexpired two-year term (starting on January 1). Here is the language from RCW 29A.24.020:

  • If at the same election there are short terms or full terms and unexpired terms of office to be filled, the filing officer shall distinguish them and designate the short term, the full term, and the unexpired term, as such, or by use of the words "short term," "unexpired two year term," or "four year term," as the case may be.
  • When both a short term and a full term for the same position are scheduled to be voted upon, or when a short term is created after the close of the filing period, a single declaration of candidacy accompanied by a single filing fee shall be construed as a filing for both the short term and the full term and the name of such candidate shall appear upon the ballot for the position sought with the designation "short term and full term." The candidate elected to both such terms shall be sworn into and assume office for the short term as soon as the election returns have been certified and shall again be sworn into office for the full term. [emphasis added]

As this language indicates, the election winner should be sworn in twice, once for the short term and once for the unexpired two-year term.

(Link to this question)

Is there anything preventing a city from offering reward money for information leading to the arrest of a suspect in a crime like what the FBI does?
Reviewed: 06/20

No. RCW 10.85.030 specifically authorizes cities to offer rewards for information. MRSC has also previously advised that there is no gift of public funds because the expenditure is for a proper public purpose, and the city is getting some consideration (information) in return.

A custom search of Washington city codes turned up a number of sample code provisions establishing reward programs.

(Link to this question)

Can cities temporarily close streets to motor vehicles and allow the streets to be used by pedestrians, non-motor vehicles and for outdoor seating for restaurants that would meet social distancing requirements? If so, what rules would apply to consumption of alcohol in such a seating area?
Reviewed: 06/20

There are a couple of components to your questions. Regarding authority to close streets temporarily to vehicle traffic, the city has broad authority to do so, especially during an emergency. Even in non-emergencies, code cities have broad authority to manage and regulate right of way—see, for example RCW 35A.11.020. Once your county enters into Phase II of the Safe Start COVID-19 recovery plan, we think the city could temporarily restrict certain rights-of-way so they are available only to pedestrians, non-motor vehicles and expanded outdoor restaurants pursuant to an order setting forth the public health and economic basis for doing so. Such an order should contain interim standards that address the circumstances and conditions that will govern the temporary use of the right-of-way.

Ordinarily, use of right-of-way requires the restaurant operator to pay a fee for the use of public property for restaurant purposes. However, under these emergency circumstances, the Washington Attorney General has released guidance that may provide the basis for local governments to incur expenditures (or forego revenue) in light of the COVID-19 emergency.

The Phase II guidance from the governor to restaurants and taverns authorizes outdoor seating at the same 50% capacity and under the same conditions and restrictions as indoor seating.

Consumption of alcohol in outdoor areas not previously authorized by the Washington Liquor and Cannabis Board (LCB) should be avoided, at least until there is guidance from the Board. The LCB has a COVID-19 webpage that summarizes steps taken by them in response to COVID-19. The LCB has not addressed this specific issue, although it has taken a number of actions, including allowing minors to sit in areas normally limited to individuals who are over 21 and allowing sales of beer, wine, and liquor for consumption off premises when purchased with take-out food orders. We are not aware of any proposals by the LCB to allow alcohol consumption in “new” outdoor seating areas. We recommend reaching out to the LCB directly for guidance.

At this time, we are not aware of any Washington cities or counties that have adopted orders to this effect although there is discussion, both in Washington and other parts of the country. Here are some recent articles on the topic:

(Link to this question)

Must a city continue to compile records responsive to a request through the date of fulfillment of the request, or does the date of the submission of the records request constitute a definitive cut-off for the date range of the records that must be produced?
Reviewed: 06/20

The date the records request is received is controlling, not the date of fulfillment and/or closure of a records request. There is no requirement in the Public Records Act (PRA) to provide ongoing supplements to records requests that have already been received and are being completed. In general, the public agency complies with a public records request with responsive records that existed as of the date of the request.

The State Supreme Court in Gipson v. Snohomish County held that an agency “determines any applicable exemptions at the time the request is received,” and doesn’t have a duty to revisit records withheld or redacted in previous installments to determine whether an exemption no longer applies. This 2019 case confirmed that there is not an ongoing duty to review future records created after a public records request is received. A requester has the obligation to submit another request after more records might have been created. It does not matter that the records request under review has not yet been closed.

Here is a link to a recent MRSC blog article New Developments in PRA Land (Dec 09, 2019) which includes an overview of Gipson v. Snohomish County.

Additional resources include the Washington State Attorney General’s Office’s Open Government Resource Manual and Local Government Consultation Program.

(Link to this question)

How should we conduct an executive session for the purpose of evaluating an employee's performance of work under the Governor’s Proclamation 20-28 and its extensions?
Reviewed: 06/20

Under the Governor’s Proclamation 20-28 and its extensions (which go through May 31), all in-person meetings of a governing body pursuant to the Open Public Meetings Act (OPMA) are prohibited. This includes members of the governing body meeting in executive session. With that said, these executive sessions may still occur, but remotely. See copies of the governor’s proclamations and guidance from the AG’s office at our COVID-19 Operations and Personnel Issues page under the section called “Remote Council/Commission Meetings.”

We also have an FAQ on our COVID-19 Frequently Asked Questions page regarding holding executive sessions during remote meetings:

How do we adjourn into an executive session during a “remote” meeting? Pretty much the same way you normally would. The presiding officer announces that they are going to adjourn into executive session, states the purpose, and the time they will return. Use the Executive Session Script, as modified for the technology you’re using. What comes next depends on the technology you’re using. Depending on your conferencing software, the governing body can switch to a different call/session, while leaving the public meeting call/session open. We recommend a staff member stay on the original call/session to remind other attendees that the governing body will reconvene. The presiding officer should ask each person attending the executive session to confirm that no one who was not invited to the executive session is either physically present or on the line.

If the executive session is not going to be held during a regularly-scheduled meeting, you will need to call a special meeting pursuant to RCW 42.30.080, and then could adjourn into an executive session during the special meeting. The special meeting can be called solely for the purpose of then convening an executive session. See RCW 42.30.110.

(Link to this question)

Do you have any examples of COVID-19 signage for things like playgrounds, parks, golf courses, etc.?
Reviewed: 06/20

Please see the following examples:

(Link to this question)

We are hosting a parliamentary procedure training for our member cities’ newly elected officials (and current elected officials). If a city sends a quorum to attend the training, do they need to publish it as a special meeting?
Reviewed: 05/20

Not necessarily.

So long as the quorum of councilmembers does not conduct city business together while at the training, they may attend without violating the Open Public Meetings Act (OPMA). The OPMA provides, in relevant part, that it is not an OPMA violation “for a majority of the members of a governing body to travel together or gather for purposes other than a regular meeting or a special meeting as these terms are used in this chapter: PROVIDED, That they take no action as defined in this chapter.” RCW 42.30.070. The slightly tricky part is that the definition of “action” is so broad and includes “discussions.” See RCW 42.30.020(3).

To avoid an OPMA violation at the training, a quorum of the councilmembers should not discuss city business together. It is fine for the individual councilmembers to discuss city affairs with other attendees, but not with a quorum of their fellow city councilmembers. We also advise against a councilmember asking a city-business related question during any Q&A portion of the training when the other councilmembers are in attendance (because the other city councilmembers are now hearing about city business, which may qualify as a “discussion”).

A city can choose to mention the travel arrangements in the agenda or at a meeting prior to the training – just so the public knows that the councilmembers are travelling together and that they know of the restriction on discussing city business among themselves while traveling and at the training. There is no statutory requirement that the public be notified of the travel arrangements, but we think it is a good idea.

An attorney general opinion, AGO 2006 No. 6, provides similar advice.

(Link to this question)

When are contractors required to submit Certified Payroll Reports?
Reviewed: 05/20

Effective January 1, 2020, contractors must file weekly certified payroll reports for all prevailing wage jobs (regardless of project amount), and submit them to the Washington State Department of Labor & Industries (L&I) directly. These reports are submitted online through L&I’s Prevailing Wage Intent and Affidavit (PWIA) system. The local government agency has no responsibility to review and check the reports. For more information, the contractor should contact L&I at pw1@Lni.wa.gov.

Projects that began prior to January 1, 2020, and that are still in progress will require certified payroll filing for work performed from January 1, 2020 and forward. The reporting is not retroactive for these projects. See RCW 39.12.120.

Contractors must always provide weekly certified payroll reports for federal projects.

(Link to this question)

Are local government agencies required to have a list of PRA exemptions on their website pertaining to public records?
Reviewed: 05/20

RCW 42.56.070(2) requires you to “publish and maintain a current list containing every law, other than those listed in this chapter, that the agency believes exempts or prohibits disclosure of specific information or records of the agency. An agency's failure to list an exemption shall not affect the efficacy of any exemption.”

There is no requirement that you post that list on your website. You can just adopt the list as part of your public records policy. Many jurisdictions adopt exhibit C to MRSC’s Public Records Act publication – we update it at least once a year.

(Link to this question)

Can the mayor enter into a contract with a company for use/lease of a software program? If the contract covers more than one budget period, must council be involved?
Reviewed: 05/20

The authority to contract for the town is given to the town council. See RCW 35.27.370(2). The authority applies to any contract, whether it is for software, machinery, supplies, professional services and public works. The mayor only has authority to contract on the town’s behalf if the council has delegated that authority. Sometimes councils will, for example, delegate authority for the mayor to contract up to a stated dollar amount, such as up to $10,000, if there is money available and the purchase is consistent with the budget. Unless there has been a delegation, the mayor has no authority to contract.

It does not matter how long the contract is for. If a contract is involved, the council must approve it, that is, unless the council has delegated contracting authority to the mayor. We recommend looking at your local code or ordinances to determine if contracting authority has been delegated, and under what circumstances.

(Link to this question)

Do general staff meeting agendas and notes need to be saved for public disclosure? No board members are involved in these meetings, only staff and management.
Reviewed: 04/20

The general staff meeting agendas must be saved for public disclosure. Records documenting meetings of agency staff must be retained for two years after the end of the calendar year in which they are created. If the agendas are no longer needed for agency business at the end of this period, they may then be destroyed. See p. 42, Local Government Common Records Retention Schedule (CORE) Version 4.0 (May 2017), Sec. 1.10, GS50-01-43 Rev. 2.

These agendas are “public records” under the Public Records Act (PRA), chapter 42.56 RCW, as they contain information that relates to the conduct of government, or the performance of any governmental or proprietary function. See RCW 42.56.010(3). As public records, they must be disclosed upon request, unless they fall under an exemption in the PRA. Exemptions are narrowly construed by the courts. See our Public Records Act topic page for additional information. Note that if an agency (or agency employee) keeps a record past the required time set forth in the retention schedule, and the agency receives a request for that record, the agency must disclose it. See RCW 42.56.100

The notes from these meetings may be a different story. Without having more information on the notes, it’s not possible for me to tell you with certainty whether an exemption applies, but it sounds like what you’re describing may be informal personal notes created by staff members at the meetings. If they are informal personal notes, they are not considered public records and the PRA does not apply to them. They may also be destroyed at an employee’s discretion.

In order to qualify as informal personal notes, they must have been created solely for the government employee’s convenience or to refresh the employee’s memory; maintained in a way indicating a private purpose; not circulated or intended for distribution within agency channels; not under agency control; and can be discarded at the writer's sole discretion. See Yacobellis v. Bellingham. MRSC has a helpful blog post concerning personal notes and the PRA.

However, if these notes are more akin to the official minutes of the meeting, then they are considered public records to which the PRA applies and must be treated identically to the meeting agendas as discussed above.

(Link to this question)

I have a large Public Records Act (PRA) request for every internal investigation for our department for the last five years from a local attorney. Are there exemptions for investigations that are exonerated or not sustained? Is there any part of an internal investigation that is exempt or redactable? Or do they need to be given in their entirety without redaction?
Reviewed: 04/20

You will want to work closely with your city attorney to review this particular PRA request and the investigative documents requested. In general, the exemption status first depends on whether a criminal investigation is open or closed. Internal investigation files are not categorically exempt but certain records within these types of files may be exempt.

As explained on MRSC’s topic page Disclosure of Law Enforcement Investigative Records, the entire investigative file for an open criminal investigation is categorically exempt from disclosure under RCW 42.56.240(1), meaning that the entire file may be withheld. RCW 42.56.240(1) exempts “specific investigative records ... the nondisclosure of which is essential to effective law enforcement ...” Nondisclosure of open criminal investigative records is always presumed to be essential to effective law enforcement. See Sargent v. Seattle Police Department. While the court in the Sargent case did hold that open criminal investigations are categorically exempt, it also held that the categorical exemption does not automatically apply to open internal investigations (at pages 13-14 of the slip opinion).

For closed investigations, review whether RCW 42.56.240(1) applies. This statute exempts “specific investigative records … the nondisclosure of which is essential ... for the protection of any person's right to privacy.” RCW 42.56.050 states that a person’s right to privacy is violated only if disclosure of the information:

  1. Would be highly offensive to a reasonable person, and
  2. Is not of legitimate concern to the public.

Note also that internal investigations of higher-ranking officers are treated differently. There, even if the allegations are unsustained and highly offensive, the higher-ranking officer’s name must be provided since the legitimate public interest prevails – see City of Fife v. Hicks.

When determining what is highly offensive to a reasonable person, consider whether the person’s expectation of privacy is reasonable or whether there has been a clear, affirmative waiver of the right to privacy. See Bainbridge Island Police Guild v. City of Puyallup.

RCW 42.56.240(1) also exempts “specific investigative records … the nondisclosure of which is essential to effective law enforcement....” According to the Washington State Supreme Court, “This exemption is not limited in application to only when enforcement would cease to function were the documents in question disclosed.” See Koenig v. Thurston County (emphasis added). Rather, the legislature’s inclusion of the word “effective” in the exemption means that the focus is on whether disclosure would compromise the effectiveness of law enforcement.

If you have unsustained investigations, and if they appear likely to require disclosure, then there is also an option to provide third party notice to the officer involved who may then choose to seek a court order preventing disclosure.

For a summary of PRA laws relating to internal investigation files (and other police records), here are links to MRSC’s topic pages Disclosure of Law Enforcement Investigative Records, Common Prohibitions and Exemptions for Law Enforcement Records and Law Enforcement Records Management and Disclosure.

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