It’s a Dirty Job, But Somebody Has To Do It: Meeting the Public Records Challenge

After a busy spring of Public Records Act (PRA) webinars and trainings, I thought I’d share some common processing questions we were asked and reflections from my time on the road.

Top Questions

Does MRSC have a form declaration that a public agency can use when a public employee/elected official searches their personal electronic devices/accounts for public records?

An agency, in meeting its burden to show it conducted an adequate search for records, can have its employees and officials submit “reasonably detailed, nonconclusory affidavits” that attest to the nature and extent of their search for public records on a personal device. See Nissen v. Pierce County, 183 Wn. 2d 863, 885 (2015).

There are a few resources out there.

• Members of the Washington Association of Public Records Officers have access to a tool kit that includes a sample affidavit.
• The City of Spokane Valley has a sample generic declaration.

Note that if the employee/official provides public records that were stored on their personal device, the agency should retain a copy in their files in case there are any future public records requests. As a practical matter, MRSC recommends that the agency have the employee/official fill out the affidavit at the time of the search and consider providing a copy to the requestor.

Some agencies have an administrative procedure for challenging PRA responses by the agency. Does MRSC recommend this?

Not only does MRSC recommend such a procedure, it is required by law. RCW 42.56.520(4) provides that:

Denials of requests must be accompanied by a written state of the specific reasons therefor. Agencies … shall establish mechanisms for the most prompt possible review of decisions denying inspections, and such review shall be deemed completed at the end of the second business day following the denial of inspection and shall constitute final agency action … for the purposes of judicial review.

The procedure need not be overly formal. For example, the City of Olympia and the City of Othello provide that a written request for review should be submitted to the public records officer who forwards the request to the city attorney for prompt review.

Note that because the statute says “review shall be deemed completed” after two days, this means that the requestor is not required to initiate or participate in such a review prior to filing a complaint in court. In legal terms, seeking review of a denial is not a “condition precedent” to filing a PRA complaint.

However, reviewing all denials provides a valuable opportunity to a local agency to reconsider a denial and potentially cut down on the exposure to PRA penalties.

If a record that is responsive to a PRA request is a list of individuals, is it sufficient to have the requestor sign an affidavit swearing that the list will not be used for commercial purposes?

No. This is a significant enough change in procedure for a lot of jurisdictions, so I’ll say it again in the words of the Court of Appeals, Division 2 in SEIU Healthcare 775NW v. State, 193 Wn. App. 377, 406 (2016):

[M]erely requesting an affirmation from the requesting party is not sufficient to satisfy an agency’s obligation to investigate under RCW 42.56.070(9). When under the specific case facts an agency has an obligation to investigate, it must at least require a party requesting a list of individuals state the purpose of the request.

If either a requestor seeks a list of individuals or a record responsive to a request is a list of individuals, the agency must investigate; for example, by performing an internet search, looking up a business on the Secretary of State’s Corporation webpage, or talking to staffers who may be familiar with the subject of the record and/or the requestor.

Ultimately, an agency will need to ask the requestor the purpose of the request before releasing the list. A sample Commercial Purpose Declaration Affidavit Template prepared by the Attorney General’s Office is available on the MRSC PRA webpage.

For more on the “list of individuals” exemption, see previous MRSC Insight blog posts here, here, and here.

For requests involving social media posts, is it sufficient to just direct the requestor to the platform?

For posts on official agency accounts, the agency should be retaining or archiving its own copies of the records. Social media platforms come and go, data can get deleted by the company or a user, and it is often impossible to provide a direct link to a particular responsive post. Arguably, simply pointing a requestor to the platform would not meet the agency’s obligation to provide “the fullest assistance to inquirers” per RCW 42.56.100. For this reason, we suggest that the better approach is to provide an actual copy of the social media post to the requestor.

For posts on personal accounts that are public records, it gets technically complicated pretty quickly. You will want to work with your IT profession on the best way to provide those records to the requestor.

For more about public records on personal social media accounts, see this MRSC blog post.

What do you do if you get letters marked “return to sender” and you have no way of communicating with the requestor?

Typos happen. So does life. If you have double checked that the mistake was not on the agency’s end and a search of publicly available information does not reveal the contact information of the requestor, you have to close the request.

A belt-and-suspenders, redundant, and duplicative approach would be to send another letter closing the request via certified mail. When the certified letter is returned, this would be evidence of your attempt to contact the requestor.

At the least, I would recommend putting a declaration in the file documenting all attempts to contact the requestor along with the original of all returned mail.

Are agencies required to keep copies of everything that was produced in response to at PRA request?

The answer to this question is actually not in the Public Records Act, Chapter 42.56 RCW.

Section 5.4, Public Disclosure, of the State Archivist’s Local Government Common Records Retention Schedule (CORE) explains which records must be retained in reference to public records requests. It does not include keeping a duplicate of everything produced.

That being said, and as explained in WAC 44-14-04006(3):

[i]n some cases, particularly for commonly requested records, it may be wise for the agency to keep a separate copy of the records it copied and provided in response to a request.

There may be other reasons for keeping copies as well, such as in anticipation of litigation or to respond to requestors who seek everything provided to a prior requestor.

If your agency does not keep a duplicate copy, it is very important that the search be fully documented so that it is possible to recreate the response if necessary.

Does MRSC have any help for creating a records management policy?

Yes, we do! I am so glad you asked!

MRSC recently published two great resources:

• Electronic Records Policy Tool Kit – A series of webpages providing sample policy language options and guidance for the various facets of electronic records retention, management, and disclosure, including email, text, and social media.
• PRA and Records Management Technology Guide – This guide, created in partnership with the State Auditor’s Office Center for Government Innovation, is intended to help Washington government agencies to identify, evaluate, and select records management technology solutions that are best matched with their needs, goals, and budgets.

The Washington State Archives is also a great resource to assist in refining and implementing your retention policy.

My Biggest Take Away

Oftentimes, “public records compliance” seems like an afterthought and it can be a thankless job that gets delegated because “someone has to do it.” But I have seen that public records officers understand that records are the property of the public, and that they hold that property in trust.

Being the conduit through which the public monitors the work of the government can be challenging—sometimes “dirty”—but ultimately fulfilling. It is a tough job, but we have great, dedicated public servants that are doing it!

Questions? Comments?

Have a comment about this blog post? Tell us about it in the comment form below or email me at sdoar@mrsc.org. If you have questions about this or other local government issues, please use our Ask MRSC form or call us at (206) 625-1300 or (800) 933-6772.