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Why Are We (Sometimes) So Protective of Public Records?


April 6, 2018 by Jim Doherty
Category: Public Records Act

Why Are We (Sometimes) So Protective of Public Records?

Over the past 25 years there has been an increasing amount of time and energy spent on public records issues — both by those who request public records and by those who respond to those requests. The MRSC webpages on public records issues are almost always the most viewed each month, as shown by our web analytics data.

Why is there a seemingly strong psychological drive by some agency staff to resist disclosure when the issues are close? MRSC attorneys often note a tendency of local government public records officers and attorneys to wrestle when trying to determine whether a specific statutory exemption or prohibition applies to the documents under review. Though careful analysis is often needed, because applying the statutes to the diverse documents under local government supervision is a challenge, the courts have frequently cited RCW 42.56.030, which provides that exemptions are to be narrowly construed.

Admittedly, there are strong reasons for not disclosing information in records that appears to be covered by the statutory exemptions and prohibitions — particularly if the information involves personal information. Remember, however, that exemptions are not mandatory — local government agencies can choose to disclose exempt information, and it might make sense to do so in situations where it appears that there is no strong reason to exempt the information. For instance, in many small jurisdictions some of the agency staff might not have any objection to their home address being provided because everyone knows where they live and they do not consider the information private (but check with your individual staff members if this issue arises).

RCW 42.56.060 provides protection to local agencies whenever they, in good faith, lean toward disclosing records rather than withholding them:

RCW 42.56.060: Disclaimer of public liability.
No public agency, public official, public employee, or custodian shall be liable, nor shall a cause of action exist, for any loss or damage based upon the release of a public record if the public agency, public official, public employee, or custodian acted in good faith in attempting to comply with the provisions of this chapter.

[Note that there are some prohibitions on disclosure of information such as medical records, juvenile court related records, etc. — so use common sense and consult with your legal counsel.]

Is the reluctance to disclose based on a feeling that good stewardship means limiting access — or that access to documents will raise more issues and distract staff from getting their jobs done?

Remember the basic principles behind the state’s public records act:

  1. the records belong to the people;
  2. local governments are merely the stewards of those records; and
  3. records should be provided to requestors if statutory exemptions or prohibitions do not clearly apply.

If you decide to not disclose records in a situation where an exemption issue is unclear, you are rolling the dice, and the odds are not in your favor.

In a very real sense, the public is your employer: public taxes fund your job. It makes sense to work cooperatively with your employer(s).

Questions? Comments?

If you have questions about this or any other local government issues, please use our Ask MRSC form or call us at (206) 625-1300 or (800) 933-6772. If you have comments about this blog post or other topics you would like us to write about, please email me jdoherty@mrsc.org.

About Jim Doherty

Jim has over 24 years of experience researching and responding to varied legal questions at MRSC. He is the lead attorney consultant and has special expertise in transmission pipeline planning issues, as well as the issues surrounding medical and recreational marijuana.

VIEW ALL POSTS BY Jim Doherty

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Comments

"Thanks, Jim, for this article. I've been staff to a county, an attorney for a county, an elected official for a city, and a requestor of public records, so I've seen this topic from all sides. The principles you articulate in your concluding paragraphs should be hammered into local government staff. And the preferred policy of erring on the side of disclosure is yet another reason that attorneys should not be in charge of handling records requests. Instead, a trusted Public Records Officer who works for the same elected officials (e.g., the county legislative authority) should be authorized to waive attorney-client privilege in close cases."

Ryan Walters on Apr 6, 2018 7:14 PM

1 comment on Why Are We (Sometimes) So Protective of Public Records?

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