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What are the statutory guidelines for adopting an ordinance? Is reading it twice or three times a requirement?
Reviewed: 02/19

There are no statutory requirements to have multiple readings of an ordinance prior to adoption, however some cities have adopted such procedures. You will need to refer to your city’s municipal code to determine whether there are any local procedural requirements. For a good overview of the ordinance initiation and adoption process, see our Local Ordinances publication starting at p. 20. For mayor-council code cities, see RCW 35A.12.130 and RCW 35A.12.150 regarding state law requirements for enacting ordinances.

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Are we required to have 2 readings on a budget amendment ordinance? Also, are we required to hold a public hearing when amending the budget?
Reviewed: 02/19

The issue of whether to have 2 readings on a budget amendment or any ordinance of the city is a matter of local policy. State law does not require multiple readings of the ordinance for budget amendments. Additionally, there is no requirement to hold a public hearing on a budget amendment. State law sets forth the minimum process requirements but nothing prevents a government entity from providing for multiple readings or a public hearing.

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Can the city pay for a meal for council members if they will be in back-to-back meetings all evening (i.e., through the dinner hour)?
Reviewed: 02/19

The Office of the Attorney General issued a memorandum in 1987 on Eating and Drinking at Public Expense. This memorandum, while over thirty years old now, is still what MRSC cites as the leading authority on questions related to municipalities paying for food and drink. It goes into considerable depth on the issue and includes various scenarios for eating and drinking at public expense, with explanations of when and why it may or may not be justified. With regard to your specific question, the analysis on pp. 5-6 may be helpful. The fundamental question is whether providing meals is reasonable and necessary. When the council meets for an extended period of time through the normal dinner hour, it seems reasonable for a city to provide dinner to the councilmembers.

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Can a councilmember be removed from office other than through a recall?
Reviewed: 01/19

Recall is the primary method by which councilmembers can be removed from office against their will. The process for recall is set forth in RCW 29A.56.110.270. Elected officials in Washington are subject to recall by voters for malfeasance, misfeasance, or violation of the oath of office.

However, the occurrence of certain events may create a vacancy without a recall. RCW 42.12.010 provides that every elective office shall become vacant on the happening of any of the following events:

(1) The death of the incumbent;

(2) His or her resignation. A vacancy caused by resignation shall be deemed to occur upon the effective date of the resignation;

(3) His or her removal;

(4) Except as provided in RCW * 3.46.067 and 3.50.057, his or her ceasing to be a legally registered voter of the district, county, city, town, or other municipal or quasi municipal corporation from which he or she shall have been elected or appointed, including where applicable the council district, commissioner district, or ward from which he or she shall have been elected or appointed;

(5) His or her conviction of a felony, or of any offense involving a violation of his or her official oath;

(6) His or her refusal or neglect to take his or her oath of office, or to give or renew his or her official bond, or to deposit such oath or bond within the time prescribed by law;

(7) The decision of a competent tribunal declaring void his or her election or appointment; or

(8) Whenever a judgment shall be obtained against that incumbent for breach of the condition of his or her official bond.

Subsection (3) refers to the recall process. The remaining subsections do not require a recall process to create a vacancy—the statute declares the office “shall become vacant” when those events occur. Of course, if there is disagreement over whether the criteria for a vacancy has been met, then the issue may need to be addressed through court action.

In addition, a council position may become vacant if that councilmember is absent for three consecutive regular council meetings without the permission of the council. See RCW 35.27.140(1) (Town Councilmembers); RCW 35.23.101 (Second Class City Councilmembers); RCW 35A.12.060 (Code City Councilmembers).

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Is a councilmember eligible to receive the per diem stipend if they call into the meeting rather than being there in person?
Reviewed: 01/19

The Attorney General’s Office issued an opinion last year that concluded a governing body can legally conduct a public meeting be telephone or video conference call so long as the participants can hear, be heard, and participate effectively in the meeting. See AGO 2017 No. 4. MRSC has taken the position that a member of the governing body can participate remotely in a meeting of the governing body if that body has so approved—ideally pursuant to a written policy that sets forth the circumstances under which remote participation will be allowed. So, if the governing body allows it, a member can attend a commission meeting via phone or video. That member would then be entitled to per diem under RCW 57.12.010, which requires compensation for “actual attendance” at official meetings. RCW 57.12.010.

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Is there a process the city should have for an employee to access their personnel file?
Reviewed: 01/19

Yes. Regarding employee review of a personnel file, that RCW 49.12.240 provides:

Every employer shall, at least annually, upon the request of an employee, permit that employee to inspect any or all of his or her own personnel file(s).

Regarding correction of erroneous or disputed information in the file, RCW 49.12.250 states:

(1) Each employer shall make such file(s) available locally within a reasonable period of time after the employee requests the file(s).

(2) An employee annually may petition that the employer review all information in the employee’s personnel file(s) that are regularly maintained by the employer as a part of his business records or are subject to reference for information given to persons outside of the company. The employer shall determine if there is any irrelevant or erroneous information in the file(s), and shall remove all such information from the file(s). If an employee does not agree with the employer’s determination, the employee may at his or her request have placed in the employee’s personnel file a statement containing the employee’s rebuttal or correction. Nothing in this subsection prevents the employer from removing information more frequently.

(3) A former employee shall retain the right of rebuttal or correction for a period not to exceed two years.

Regarding limitations on an employee’s inspection of his/her personnel file, RCW 49.12.260 provides:

RCW 49.12.240 and 49.12.250 do not apply to the records of an employee relating to the investigation of a possible criminal offense. RCW 49.12.240 and 49.12.250 do not apply to information or records compiled in preparation for an impending lawsuit which would not be available to another party under the rules of pretrial discovery for causes pending in the superior courts.

If the exemptions in RCW 49.12.260 may apply, we recommend you review the file with your city attorney.

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What is the maximum B&O excise tax rate a city can charge on revenue to a business inside the City?
Reviewed: 01/19

The maximum rate is 0.2%, but a higher rate can be implemented if it is approved by a majority of the voters. RCW 35.21.710 addresses the maximum rate. There is no statutory maximum for a B&O approved by voters

B & O Taxes are levied at a percentage rate on gross receipts and may be imposed upon different sectors such as manufacturing, wholesaling, retailing and services. The tax can be levied at the same rate for all sectors, or the legislative body may opt for different rates for some sectors. For example, the city of Kent charges a higher rate for wholesaling and a lower rate for retail. Within each sector, the rate must be uniform. Here is the link to our web page on City Business & Occupation Tax, which includes the model ordinance and administrative ordinance that cities must use for B&O adoption. We have further explanation of General B & O taxes and licenses in our publication “Revenue Guide for WA Cities and Towns”. As of December 2018, 44 cities had adopted a B&O tax. Here is the list of those cities as of 2018.

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The city adopts a budget at the fund level. Does that mean that I can change the allocation of resources within a fund without going to council for an amendment?
Reviewed: 01/19

Adopting a 'fund level' budget provides the city with the ability to "adjust" its line item appropriations within a fund without having to adopt a budget amendment. RCW 35.33.121 (RCW 35.33.120 for code cities) provides the authority for the “city’s or town's chief administrative officer” (mayor in a mayor-council form of government) to make such adjustments unless the city has adopted financial policies that would limit this authority.

Keep in mind that it’s not a requirement to adjust the individual line items throughout the year. Many cities find it helpful to leave the original appropriations for operating expenses such as the street supplies and small tools so that they can compare the actual line item appropriation vs. expenditures from a historical perspective which will assist with setting future budget appropriations.

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Does a board of county commissioners have authority to eliminate positions under another elected official in the county?
Reviewed: 01/19

A board of county commissioners (BOCC) has the authority to establish positions (RCW 36.16.070) and, as such, also has the authority to abolish positions. In Smith v. Board of Walla Walla County Comm’rs, 48 Wn. App. 303, 307 (1987), the court, in relevant part, held:

It is undisputed that the Board of County Commissioners have the authority to eliminate and establish employee positions in a county department, to reduce department budgets, and to create new departments. See RCW 36.32.120(6); RCW 36.16.070; see also Miller v. Pacific Cy., 9 Wn. App. 177, 179, 509 P.2d 377 (1973). There is also no dispute the County was facing a serious budget shortfall. The Board’s acts in balancing the budget were clearly discretionary. Therefore, mandamus would be appropriate only if the Board’s actions were properly found to be arbitrary and capricious.

In general, it is within the discretion of a BOCC to allocate, as it sees fit, the financial resources of the county as provided in the budget it approves. This principle is well-illustrated in State ex rel. Farmer v. Austin, 186 Wash. 577, 588 (1936)

In the light of the known financial difficulty of the counties and considering the circumstances of the times, the court cannot say that an order reducing the force of deputies in the sheriff’s office from six to four was so capricious and arbitrary as to be void. It may be that the action of the majority of the board of county commissioners was improvident and ill-considered, but, if so, the remedy lies with the electors rather than in the courts. If it be assumed that the business of the sheriff’s office will be hampered by the reduction in force, the harm will not be nearly as great as would be the consequences of the interference by the courts with the executive duties of the board of county commissioners, in whom is reposed the financial management of the county’s affairs.

As such, the courts will interfere with this exercise of discretion only upon the theory that the action is so capricious and arbitrary as to evidence a total failure to exercise discretion and is, therefore, not a valid act. Arbitrary and capricious action has been defined by the courts as “willful and unreasoning action, without consideration and in disregard of facts or circumstances.” See, e.g., Schrempp v. Munro, 116 Wn.2d 929, 938 (1991). See also, Miller v. Pacific County, 9 Wn. App. 177, review denied, 82 Wn.2d 1012 (1973) (“When the [board of county] commissioners, by resolution, show a clear purpose to effect a reduction of a department’s budget, they act within the ambit of the discretionary power granted to them.”)

Of course, the other elected county officials have statutory responsibilities they must carry out, and they need staff and facilities to carry them out, but there will most always be disagreement as to how much money they actually need in their budgets to do so. The statutes vest the BOCC with the authority to make that determination in the county budget. And, absent arbitrary and capricious action by the board in setting the budget, its budgetary decision-making will be upheld by the courts.

Note, however, that once a position has been funded, the authority to hire (or terminate) a particular individual rests with the elected official (not the BOCC). See Osborn v. Grant County, 130 Wn. 2d 615, 621 (1996), quoting Thomas v. Whatcom County, 82 Wash. 113 (1914). Thomas held that, once the board has authorized the hiring of deputies in a county office, "the officer in whose office the deputies are to serve, being responsible on his bond for their conduct, has the absolute right to determine the personnel of such deputies . . . ."

Of particular interest to you may be a recent Attorney General’s Opinion that analyzes the BOCC’s authority relative to the Sheriff’s Office under RCW 36.16.070 and chapter 41.14 RCW. See AGO 2017 No. 3. The opinion addresses several questions, but upholds the principle that the County Commissioners have the authority to ultimately create positions authorized by chapter 41.14 RCW.

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If a committee is purely advisory, must its meeting be advertised and open?
Reviewed: 12/18

No. Under RCW 42.30.020(2), if the committee does not have a majority of the council included in its membership, and it merely provides advice, and the council can take action without the advice, it is not covered by the OPMA. Of course, nothing prohibits the city from treating the committee as if it is covered by the OPMA.

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Can a city increase its sales tax to raise revenue for law enforcement services?
Reviewed: 12/18

It is possible for a city to place an issue on the ballot to raise revenue for “public safety” purposes, which would include monies for law enforcement. Here is an excerpt from our Revenue Guide for Washington Cities and Towns regarding the tax:

Any city or town, with voter approval and subject to the restrictions below, may impose a sales tax of up to 0.1% for public safety as authorized by RCW 82.14.450. The ballot measure must clearly state the purposes for which the tax is to be used and requires approval by a simple majority of voters. The statute requires that at least one-third of the revenue be used solely for criminal justice purposes, fire protection purposes, or both as defined in RCW 82.14.340(4)-(5).

Similar to the shared revenue requirements under RCW 82.14.340 (criminal justice), the city must share the tax with the county. 85% of this sales tax revenue is distributed to the city and 15% to the county. This local sales tax option also features a differential in the tax base from the state sales tax base, with sales of motor vehicles and the lease of motor vehicles for up to the first 36 months of the lease exempted.

Counties may also place a ballot measure before the voters for a public safety sales tax under the same statute. The county’s sales tax option may range from 0.1% to 0.3%. If the tax is approved, the county must share the revenue with the cities, with 60% distributed to the county and the remaining 40% distributed on a per capita basis to the cities within the county.

The combined city/county rate may not exceed 0.3 percent:

  • If the county is already levying the full 0.3%, no city within the county may impose a new public safety sales tax.
  • If the city enacted a 0.1% public safety sales tax before the county, and the county imposes a 0.3% sales tax countywide, the county must credit back 0.1% to the city.
  • If the county has imposed a public safety sales tax less than 0.3%, the city may still impose its own public safety sales tax up to 0.1%, as long as the combined city/county rate does not exceed 0.3%.

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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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