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Can the Town accept donations for the Police Department, and must the donations be earmarked for a specific use?
Reviewed: 12/18

It depends on whether the donor attaches “strings.”

A code city (along with any other class of city) has the express authority to accept donations (RCW 35.21.100; RCW 35A.11.040). RCW 35.21.100 provides:

Every city and town by ordinance may accept any money or property donated, devised, or bequeathed to it and carry out the terms of the donation, devise, or bequest, if within the powers granted by law. If no terms or conditions are attached to the donation, devise, or bequest, the city or town may expend or use it for any municipal purpose.

RCW 35A.11.040 states:

The legislative body of a code city may exercise any of its powers or perform any of its functions including purchasing, and participate in the financing thereof, jointly or in cooperation, as provided for in chapter 39.34 RCW. The legislative body of a code city shall have power to accept any gift or grant for any public purpose and may carry out any conditions of such gift or grant when not in conflict with state or federal law.

So, code cities may accept donations, and the donations can be earmarked to be used in a particular way (e.g., the Police Department). However, the expenditures must be for a legitimate public purpose, and not in conflict with state or federal law. The fact the money is donated does not relieve the city of ensuring that the funds are spent for a valid municipal purpose. Once the funds are donated, they become public funds, subject to all limitations for public expenditures.

We have indicated in the past that although RCW 35.21.100 could be interpreted to mean that a city must pass an ordinance to accept each and every donation it receives, a more reasonable interpretation is that the city must establish by ordinance a procedure for accepting donations. Many cities have such a procedure. Some cities authorize a particular city official, such as a clerk-treasurer or city manager/administrator, to accept donations on behalf of the city. Others provide that the council will do so by motion or resolution.

Some jurisdictions have council-adopted policies that govern the circumstances under which donations will be accepted (here is a link to a page with examples).

There is no requirement that the city accept the donation. That is a policy decision for the city council. If the donor merely makes a donation, without adding “strings” to it (e.g., must be used to purchase police uniforms), the donation, if the council accepts it, would go into the city’s general fund and could be used for any municipal purpose.

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What are the minimum requirements for a newspaper that has been designated the official city newspaper? Is it legally acceptable for mandatory notices to minimally address the notifications and direct the public to the city website or city hall to view the entire notification or is it necessary to post the entire notification?
Reviewed: 12/18

Minimum Requirements

RCW 35A.65.020 and RCW 65.16.020 set forth the process and qualifications for designation of a newspaper as “the official City Newspaper.” Although these are not called “minimum requirements” the qualifications are essentially requirements and include, for example, that the newspaper be legal, of general circulation, published at least weekly, in English, etc.

RCW 35A.21.230 states:

Each code city shall designate an official newspaper by resolution. The newspaper shall be of general circulation in the city and have the qualifications prescribed by chapter 65.16 RCW.

RCW 65.16.020 Qualifications of legal newspaper provides:

The qualifications of a legal newspaper are that such newspaper shall have been published regularly, at least once a week, in the English language, as a newspaper of general circulation, in the city or town where the same is published at the time of application for approval, for at least six months prior to the date of such application; shall be compiled either in whole or in part in an office maintained at the place of publication; shall contain news of general interest as contrasted with news of interest primarily to an organization, group or class; shall have a policy to print all statutorily required legal notices; and shall hold a periodical class mailing permit: PROVIDED, That in case of the consolidation of two or more newspapers, such consolidated newspaper shall be considered as qualified if either or any of the papers so consolidated would be a qualified newspaper at the date of such legal publication, had not such consolidation taken place: PROVIDED, That this section shall not disqualify as a legal newspaper any publication which, prior to June 8, 1961, was adjudged a legal newspaper, so long as it continues to meet the requirements under which it qualified.

Publishing Ordinance or a Summary

Ordinances may be posted on the city website at any time, but in order for the ordinance to be effective, the city needs to publish it in the official city newspaper. The city is permitted to publish a summary of a new ordinance in lieu of publishing the entire ordinance. For code cities, by law, the summary must provide “a brief description which describes the main points of the ordinance” and include a full statement that the full text of the ordinance will be mailed upon request. RCW 35A.12.160. So long as a summary and the offer to provide the full text of the ordinance by mail upon request is published in the newspaper, in my opinion it is legally acceptable to direct readers to the city website and/or city hall.

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Can vacation time be given as an incentive/bonus if incorporated into an annual review? Or is that considered a gift of public funds?
Reviewed: 12/18

The city could adopt a policy to add bonus time off as an incentive in connection with the annual review process. You will want to have objective criteria for when the additional time off is awarded so it is not left to the subjective judgment of a supervisor.

Such a new policy should be prospective only rather than retroactive in order to avoid a potential issue with the Washington Constitution’s prohibition on gifts of public funds and changes to public employee compensation previously established. If extra time off is granted for past-performance, then there is a problem with gifting of public resources. Once the policy is in place, then for city employees who continue their employment, the incentive for bonus time would be part of the compensation package.

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If a public records requester is seeking metadata, does he/she/they have to specifically request metadata?
Reviewed: 12/18

If a requester making a request under the Public Records Act (PRA) is seeking metadata, the requester needs to specifically state that he/she is requesting metadata. Our state supreme court has indicated that a request under the PRA for metadata is not made unless and until a requester specifically asks for metadata. See, e.g., O'Neill v. City of Shoreline, 170 Wn.2d 138, 151-52 (2010). In O'Neill, the court explains and concludes:

While we agree that metadata is included within the PRA's definition of a "public record," this does not necessarily mean that a government agency must provide metadata every time a request for a public record is made. At the council meeting, O'Neill made an oral request to see the e-mail. The City responded at first by providing a paper copy of the e-mail, without metadata attached. The Court of Appeals ruled that "[t]he PRA requires providing a public record only when it is identifiable," and that the oral request at the Council meeting made no mention of the electronic version of the e-mail or of the associated metadata. O'Neill v. City of Shoreline, 145 Wn. App. 913, 935 (2008)], 145 Wn. App. at 932-33. We affirm the Court of Appeals and hold that the wording of the oral request did not clearly include metadata. Metadata is a new topic that has never before been dealt with in PRA litigation, and we conclude that a request for the metadata was not made until Ms. O'Neill specifically asked for it.

Id. at 151-52.

This issue was addressed more recently in a November 2012 court decision. Although the decision is unpublished, meaning that it cannot be relied upon as precedential authority, we think the court's analysis is nonetheless helpful and provides an example of how courts analyze such situations. The court concluded that the PRA request at issue was not a request for metadata, and in reaching its conclusion the court relied upon other court decisions that can be relied upon as precedential authority, including the above referenced decision in O'Neill v. City of Shoreline, 170 Wn.2d 138 (2010).

In Nervik v. Dept of Licensing, 2012 Wash. App. LEXIS 2642 (No. 41834-7-II) (November 13, 2012)(unpublished), the court explains and concludes:

Nervik argues that the Department's record production was incomplete because he requested e-mails in electronic format, which by his definition contains metadata. But this argument overlooks that government agencies have discretion regarding record formatting and are not required to provide records in electronic format. Mitchell v. Dep't of Corr., 164 Wn. App. 597, 606-07, 277 P.3d 670 (2011). Nervik's argument also overlooks his own experience demonstrating that electronic format does not necessarily convey metadata (for example, the Department provided Nervik with over 31,000 electronic records, which did not convey metadata). Our Supreme Court held that metadata must be specifically requested and that a request for e-mail is not sufficiently specific to automatically include metadata. O'Neill, 170 Wn.2d at 151-52. Because an agency may deny a request for electronic formatting but it may not deny a specific request for metadata, we decline to view a request for electronic formatting as inherently requesting metadata. Mitchell, 164 Wn. App. at 606-07. Instead, we conclude that a request for electronic format, like a request for e-mail, is not equivalent to a specific request for metadata.

Here, the Department never refused to produce records; it produced all the requested records in installments. Both Nervik's November 2008 requests asked for a "full and complete copy of each and every e[-]mail" and requested, "E[-]mails should be in Outlook .pst format only together with all attachments same as previously provided." CP at 660, 661. This is a mere format request, not a specific metadata request. The Department has discretion over the format of its responses, so the Department did not violate the PRA by producing records that did not convey metadata information. Therefore, we conclude that the trial court properly granted summary judgment dismissal of Nervik's claim that the Department failed to disclose public records by not providing metadata.

Id. at *10-12.

More generally, keep in mind that the PRA requires agencies to provide the fullest assistance in responding to requesters who make PRA requests. See RCW 42.56.100. However, an agency "is not required to be a mind reader when responding to public records requests." Bonamy v. City of Seattle, 92 Wn. App. 403, 409 (1998). Consistent with these principles, and based upon O'Neill v. City of Shoreline, 170 Wn.2d 138 (2010), a request under the PRA for metadata is not made unless and until a requester specifically asks for metadata.

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Are informal notes prepared and kept by the mayor or councilmembers public records that are exempt from disclosure?
Reviewed: 12/18

Informal notes prepared by a public official for his or her own convenience, maintained in a way that indicates a private purpose, and not intended for circulation or distribution within the agency, would most likely be considered personal and not public records. As such, they would not be subject to disclosure upon request by a member of the public.  See Yacobellis v. Bellingham, 55 Wn. App. 712 (1989).

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Whether records reflecting an employee's education and experience are exempt from public disclosure.
Reviewed: 12/18

Applications for public employment, including resumes, cover letters, and letters of recommendation, are exempt from disclosure under RCW 42.56.250(2), so you would not be required to provide those records to the requestor.

Information regarding an employee's education and experience that is not contained within such application materials is not exempt from disclosure.

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Under RCW 70.48.100, are jail records held in confidence only while the person is actually confined in jail?
Reviewed: 12/18

The confidentiality requirements in RCW 70.48.100 regarding jail records apply to persons that were but are no longer confined in jail - in addition to those currently confined. In Cowles Publ'g Co. v. Spokane Police Dep't, 139 Wn.2d 472, 481 (1999); the state Supreme Court held:

Cowles' argument that the statute [RCW 70.48.100] does not apply because the defendant was not in jail at the time of the request is not persuasive. Nothing in the statute suggests that confidential jail records suddenly become open to public inspection when the jail term ends and the defendant is released.

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Must a person file a claim via RCW 4.96.020 before filing a PRA lawsuit against the county?
Reviewed: 12/18

In brief, no. Our position at MRSC has been that the claim filing requirements in RCW 4.96.020 don’t apply to a lawsuit based on an alleged violation of the Public Records Act (PRA). RCW 4.96.020, and chapter 4.96 RCW more generally, addresses tort claims, tortious conduct, and claims for damages, but a PRA lawsuit isn’t a tort claim or a claim for damage.

If an agency is found by a court to have violated the PRA, the court may impose penalties as well as attorney fees and costs, but such remedies are different in kind than damages arising out of tortious conduct as provided for under RCW 4.96.020. See, e.g., Amren v. City of Kalama, 131 Wn.2d 25, 36 (1997) (“Since the award [for a PRA violation] has been treated as a penalty it is not necessary for a party to show actual damages to receive the statutory award.”)

The following excerpt from a more recent decision, Corey v. Pierce County, 154 Wn. App. 752 (2010), also indicates that a tort claim for damages is different in kind that a claim under the PRA. In part, the court explains and concludes (at pp. 765-766):

Case law does not support a tort cause of action for damages due to negligent disclosure of unsubstantiated information. Instead, the concern for privacy noted by the trial court stems from the Public Records Act (PRA). Ch. 42.56 RCW. Under the PRA, an invasion of privacy occurs “if disclosure of information about the person: (1) Would be highly offensive to a reasonable person, and (2) is not of legitimate concern to the public.” RCW 42.56.050. In Dawson v. Daly, a prosecutor sought an injunction to prevent the release of a deputy prosecutor’s personnel file. 120 Wn.2d 782, 788, 845 P.2d 995 (1993). The court determined that the disclosure of the prosecutor’s performance evaluations that did not discuss specific instances of misconduct was highly offensive and lacking in legitimate public interest. Id. at 800. The right to privacy was protected through injunction. Nowhere is there a discussion of a tort action for damages in the event of a violation of the right of privacy. Furthermore, the court did not address the proper standard to be applied if the personnel file did include allegations of misconduct.

Based on the legal principles articulated above, because a claim under the PRA wouldn’t be a claim for damages, the claim filing requirements in chapter 4.96 RCW wouldn’t apply to such a PRA claim.

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Are draft documents considered public records?
Reviewed: 12/18

Yes, draft documents are public records, assuming, of course, that they otherwise meet the definition of “public record” in RCW 42.56.010(3). As public records, they may be exempt from disclosure under RCW 42.56.280, which exempts (emphasis added):

Preliminary drafts, notes, recommendations, and intra-agency memorandums in which opinions are expressed or policies formulated or recommended are exempt under this chapter, except that a specific record is not exempt when publicly cited by an agency in connection with any agency action.

The fact that they are drafts does not then, by itself, make such documents exempt from disclosure. In PAWS v. University of Washington, 125 Wn.2d 243, 256 (1994), the Washington Supreme Court established a test to determine whether this exemption applies in a particular case:

In order to rely on this exemption, an agency must show that the records contain predecisional opinions or recommendations of subordinates expressed as part of a deliberative process; that disclosure would be injurious to the deliberative or consultative function of the process; that disclosure would inhibit the flow of recommendations, observations, and opinions; and finally, that the materials covered by the exemption reflect policy recommendations and opinions and not the raw factual data on which a decision is based.

For more information regarding this public disclosure exemption, see our Explaining the PRA's Deliberative Process Exemption blog post.

So, the determination needs to be made on a document-by-document basis whether draft documents are exempt from disclosure under this exemption.

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How are the five business days calculated in RCW 42.56.520, which relates to responding to public record requests?
Reviewed: 12/18

RCW 42.56.520 provides that a response to public records request must be made by the agency within five business days. The question is whether the day the request is received counts as one of the five days.

This office has taken the position that the day the request is received does not count as one of the five days. As additional support for that conclusion, RCW 1.12.040 provides:

The time within which an act is to be done, as herein provided, shall be computed by excluding the first day, and including the last, unless the last day is a holiday, Saturday, or Sunday, and then it is also excluded.

This statute appears to be of general application throughout the state statutes.

Additional indirect support exists in the Attorney General Model Rules at WAC 44-14-040, footnote one, and the case of Limstrom v. Ladenburg, 98 Wn. App. 612 (1999). That case involved a public records request. The request was received on Tuesday, February 3, 1998 and the county responded on Friday, February 6, 1998. The court indicated that the response was made on the third day within the five day time period, which means the court was not counting the day the request was received.

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When a public records request comes in for records related to a specific employee, must the agency notify the employee whose records have been requested of the request?
Reviewed: 12/18

There is no legal requirement under the PRA that an agency notify employees of such a request. However, RCW 42.56.540 gives agencies the option to provide what is referred to as "third party notice" to allow the third party (here, the employee) to seek a court injunction to block disclosure.

Providing third party notice may be advisable in circumstances where it's unclear whether a specific exemption applies because the PRA is to be construed in favor of disclosure, and an agency could be subject to mandatory penalties if a court finds that the agency improperly withheld non-exempt information. So, the purpose of third party notice is to give the third party (e.g., the employee) a chance to seek a court order preventing the disclosure, while reducing the likelihood that the agency will incur penalties under the PRA.

To provide third party notice, an agency would inform the PRA requestor in writing that it will provide the requested records, subject to appropriate redactions, if any, but will delay release of the records (and so inform the requestor) to give the affected parties the opportunity to seek court protection of possibly exempt information under RCW 42.56.540. See also WAC 44-14-040(4), part of the PRA model rules, which states:

Protecting rights of others. In the event that the requested records contain information that may affect rights of others and may be exempt from disclosure, the public records officer may, prior to providing the records, give notice to such others whose rights may be affected by the disclosure. Such notice should be given so as to make it possible for those other persons to contact the requestor and ask him or her to revise the request, or, if necessary, seek an order from a court to prevent or limit the disclosure. The notice to the affected persons will include a copy of the request.

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What is the legal authority for saying that the city is under no obligation to create a record when responding to a PRA request?
Reviewed: 12/18

The RCW’s do not address this question directly, so we have to look to other sources for guidance. The Attorney General’s Public Records Act Model Rules—Ch. 44-14 WAC—are one source of guidance. Although not a binding authority for local governments, the model rules are persuasive authority and will often provide relevant case decisions.

WAC 44-14-04003(6) states that “[a]n agency is not obligated to create a new record to satisfy a records request” and cites Smith v. Okanogan County (2000) as support. Another case that supports this rule is Fisher Broadcasting v. Seattle, which the Washington Supreme Court decided in 2014. Fisher Broadcasting provides an excellent example that explains the complex question of whether an agency should “create” records to fulfill a response.

In Fisher, the court addressed a records request for “a list of any and all digital in-car video/audio recordings.” Fully answering this would have required the PRA Officer to mine data from two distinct systems and create a new document compiling the data. The court found that this is outside the requirement of the PRA and the agency was not obligated to create such a record. However, the agency at issue did have the capacity to produce a record that partially answered the request from one of the systems, and the court held that they should have done so. The court in Fisher explained as follows:

Given the way public records are now stored, there will not always be a simple dichotomy between producing an existing record and creating a new one. But "public record" is broadly defined and includes "existing data compilations from which information may be obtained . . . regardless of physical form or characteristics." This broad definition includes electronic information in a database. Merely because information is in a database designed for a different purpose does not exempt it from disclosure. Nor does it necessarily make the production of information a creation of a record.

For more information, section 1.6 (D) of the Attorney General’s Open Government Resource Manual provides a robust discussion on this topic.

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Is an employee's personal email address included in a standard agency email message subject to disclosure under the Public Records Act?
Reviewed: 12/18

Yes, the personal email address in this context must be disclosed if the email message at issue is responsive to a public records request made under the PRA. The only exemptions that may apply to an employee’s personal email address are:

  • RCW 42.56.230(3) (exempting personal information in files maintained for employees…to the extent that disclosure would violate their right to privacy); and
  • RCW 42.56.250(3) (exempting personal email addresses held by a public agency in personnel records)

In this circumstance, the employee’s personal email address appears just in a standard email message and not in files maintained for employees or in the agency’s personnel records. Therefore, it cannot be redacted.

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Can an individual simultaneously hold office in the state legislature and serve as an elected county official?
Reviewed: 11/18

Yes, simultaneously holding such offices is permissible. In AGLO 1970 No. 82, the Attorney General’s Office noted that “it has long been the position of this office that there is no incompatibility between the various local county or other municipal offices, generally, and a position in the state legislature.” To the same general effect, see AGO 1962 No.177.

Note, however, that under RCW 29A.36.201, no candidate’s name may appear twice on a single ballot, with the exception of a precinct committee officer or a temporary elected position such as a charter review board member or freeholder. So the same person cannot be elected to two public offices if those offices are up for election at the same election.

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Can city councilmembers receive a cost of living adjustment (COLA) in their compensation?
Reviewed: 11/18

Unless your city uses a salary commission, the city councilmembers may not receive a COLA because, under RCW 35A.13.040 salaries for councilmembers may not be increased during their current term. In addition, our State Constitution, Article XXX, Sec. 1, has a prohibition on midterm salary increases for elected officials who set their own salaries, that is discussed in AGO Opinion, 1999, No. 1. COLA salary increases are included in the term “any increase” and cannot be provided during the current terms of councilmembers. RCW 35A.13.040.

The salary commission procedure is authorized under RCW 35.21.015 where a city (or a county under RCW 36.17.024) may create a commission to set salaries for elected officials. In this case the statutory and constitutional prohibitions would not apply because the councilmembers would not set their own compensation and salary increases, including COLAs.

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Is a public records officer required to maintain a log of all requests? If so, how detailed must the entries be?
Reviewed: 11/18

Yes. All agencies must maintain a log of records requests, tincluding the requestor identity (if provided), the date and text of the request, the description of records produced, redacted or withheld (and the statute authorizing withholding) and the date of final disposition of the request. RCW 40.14.026(4). In addition to the general log, all agencies with actual staff and legal costs associated with fulfilling PRA requests of at least $100,000 during the prior fiscal year must report a series of metrics to the Joint Legislative Audit and Review Committee (JLARC). RCW 40.14.026(5). For more information on the JLARC reporting, see the MRSC Blog JLARC Unveils Public Records Reporting System.

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What statute allows a city to exempt its B&O tax records from public disclosure? 
Reviewed: 11/18

RCW 35.102.145 allows cities to adopt an ordinance specifically exempting their B&O tax returns and tax information from public disclosure, "in the manner provided by RCW 82.32.330." (RCW 82.32.330 is the primary statute that exempts state tax records from disclosure.) RCW 35.102.145 is incorporated into the PRA through RCW 42.56.230(4).

Note that, if a city fails to adopt a statute specifically exempting their B&O tax records from disclosure, there is no other exemption that can be cited to exempt such records.

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 What are the records retention schedules?
Reviewed: 11/18

Records retention schedules are issued by the Local Records Committee to serve as the retention schedules and disposition authority for records held by local government agencies. The Local Records Committee is a committee which includes the state archivist, a representative appointed by the state auditor, and a representative appointed by the attorney general.

The records retention schedules may be applied directly by agencies as authority to destroy the records listed after the expiration of their approved retention periods. It requires no further authorization or approval.

The most recent versions of the Local Government Records Retention Schedules are available on the Washington State Archives website. Those documents are updated periodically.

In addition to the general records retention schedule applicable to local government agencies, there are retention schedules for some specific departments of local government agencies. Review the Records Management - Local Government page for further information.

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How soon must a city respond to a request for public records?
Reviewed: 11/18

State law requires that responses to requests for public records be made "promptly." Specifically, cities and other governmental agencies must respond in writing within five business days of receiving a request by either: (1) providing the record; (2) providing an internet address and link on the agency's web site to the specific records requested; (3) acknowledging receipt of the record and providing a reasonable estimate of the time in which a response will be made; or (4) acknowledging receipt of the request and asking the requestor to provide clarification for a request that is unclear and providing a reasonable estimate of time the agency will require to respond to the request if it is not clarified; (5) denying the request. Additional response time beyond five days may be based upon a need to clarify the request, to locate and assemble the records requested, to notify people and agencies affected by the request, or to determine whether any of the requested records are exempt from disclosure (RCW 42.56.520). WAC 44-14-04003 discusses the required timely response and provides some commentary on providing a "reasonable estimate" of the time necessary to respond and on asking for a clarification of the request.

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For a public records request: can the agency charge for the cost of a flash drive or other storage media to produce the records?
Reviewed: 11/18

For a public records request, an agency  may charge for the actual cost of the flash drive or other storage media used to produce the electronic public records requested. This is true whether the agency has adopted the statutory default fee schedule or has adopted a fee schedule with their actual costs (RCW 42.56.120).

In charging its actual costs, the agency needs to have a statement of factors and manner it used to determine actual costs. For examples of fee schedules adopted by agencies, see our webpage on the Public Records Act (Scroll down page to section on "Charges for Copying and Producing Electronic Records").

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When a request for records has been abandoned (more than 30 days have gone by after notification that the requested records are available, or more than 30 days have gone by without an answer to a request for clarification), what if any notification needs to be sent to the requestor?
Reviewed: 11/18

It is a best practice to send a closing letter informing the requestor that the request was closed and the reason why. The same guidance is offered by the Attorney General's Model Rules for the Public Records Act:

A records request has been fulfilled and can be closed when a requestor has inspected all the requested records, all copies have been provided, a web link has been provided (with assistance from the agency in finding it, if necessary), an unclear request has not been clarified, a request or installment has not been claimed or reviewed, or the requestor cancels the request. An agency should provide a closing letter stating the scope of the request and memorializing the outcome of the request. A closing letter may not be necessary for smaller requests. The outcome described in the closing letter might be that the requestor inspected records, copies were provided (with the number range of the stamped or labeled records, if applicable), the agency sent the requestor the web link, the requestor failed to clarify the request, the requestor failed to claim or review the records within thirty days, or the requestor canceled the request. The closing letter should also ask the requestor to promptly contact the agency if he or she believes additional responsive records have not been provided

See WAC 44-14-04006(1).

Although this model rule states that a closing letter may not be necessary for smaller requests, MRSC recommends that a closing letter be sent for all records requests, regardless of size, in order to notify the requestor of their abandonment of the request.

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How long must a city or county retain the minutes of advisory boards, committees or commissions?
Reviewed: 11/18

The Local Government Common Records Retention Schedule (CORE), version 4.0 (May 2017), provides in section 1.10 that such records shall be retained for six years, and have potential archival value, so your regional archivist should be contacted before disposing of the records.

For more information on this topic, see the following:

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Does the public disclosure exemption for names of persons who file complaints apply to a complaint filed with the planning department about a land use violation?
Reviewed: 11/18

Yes, we believe it would apply to protect the name of the complainant from disclosure. RCW 42.56.240 exempts from disclosure information revealing the identity of persons who are witnesses to or victims of crimes or who file complaints with investigative, law enforcement, or penology agencies if disclosure would endanger any person's life, physical safety or property. If at the time the complaint is filed, the complainant indicates a desire for nondisclosure, such desire shall govern.

The issue is whether a complaint filed with a city planning department could qualify under this exemption, and specifically whether a planning department can constitute an "investigative agency." In this case, the planning department does have specific authority to investigate complaints and issue fines, seek abatement or seek criminal penalties, and, as such, we believe it would qualify as an investigative agency. The intent of the statute is to encourage citizens to file complaints as necessary and be assured that their safety will be protected. This intent is furthered by considering a planning department as being an investigative agency for purposes of the public disclosure law.

Two  cases that supports this conclusion are Wade’s Eastside Gun Shop v. Department of Labor and Industries (where L&I was determined to be an investigative agency for purposes of investigating safety laws) and Tacoma News v. County Health Department (where a health department was determined to be  an investigative and law enforcement agency).

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Must the city disclose the name of the complainant on a nuisance complaint?
Reviewed: 11/18

Maybe. If the requesting party is requesting the information under the Public Disclosure Act, the name can be withheld in some circumstances. RCW 42.56.240(2) provides an exemption for:

(2) Information revealing the identity of persons who are witnesses to or victims of crime or who file complaints with investigative, law enforcement, or penology agencies, other than the public disclosure commission, if disclosure would endanger any person's life, physical safety, or property. If at the time a complaint is filed the complainant, victim or witness indicates a desire for disclosure or nondisclosure, such desire shall govern. . .

If the disclosure "would endanger" the person's life, safety, or property, or if the complainant requested nondisclosure, the complainant's identifying information need not be disclosed.

However, if the requesting party has been charged with a crime, he or she is entitled to the information through the discovery process. The city should warn complainants that if the criminal process is invoked, their name will almost certainly have to be released. RULE CrRLJ 4.7 provides:

(a) Prosecuting Authority's Obligations.
(1) Except as otherwise provided by protective orders or as to matters not subject to disclosure, the prosecuting authority shall, upon written demand, disclose to the defendant the following material and information within his or her possession or control concerning:
(i) the names and addresses of persons whom the prosecuting authority intends to call as witnesses at the hearing or trial, together with any written or recorded statements and the substance of any oral statements of such witnesses, ...
(iii) any reports or statements of experts made in connection with the particular case, including results of physical or mental examinations and scientific tests, experiments, or comparisons, ...

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Which RCWs or WACs provide that an e-mail, text, or social media post is a public record?
Reviewed: 11/18

The Public Records Act defines the term "public record" very broadly to include:

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 . . . local agency regardless of physical form or characteristics.

See RCW 42.56.010(2).

RCW 42.56.010(3) contains an equally broad definition of a "writing":

"Writing" means handwriting, typewriting, printing, photostating, photographing, and every other means of recording any form of communication or representation including, but not limited to, letters, words, pictures, sounds, or symbols, or combination thereof, and all papers, maps, magnetic or paper tapes, photographic films and prints, motion picture, film and video recordings, magnetic or punched cards, discs, drums, diskettes, sound recordings, and other documents including existing data compilations from which information may be obtained or translated.

Case law has concluded that emails, text messages and social media posts are public records. O’Neill v. Shoreline (emails); Nissen v. Pierce County (text messages); West v. City of Puyallup (social media posts). When an email, text message or social media post is sent or posted from a personal account, the email, text or post is a public records only if it was prepared within employee’s or official’s scope of employment or official capacity. For more on records located on personal accounts, please see the following:

For more information on this topic, see MRSC’s Public Records Act webpage.

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