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BIG Public Records Requests


March 3, 2015 by Jim Doherty
Category: Public Records Act

BIG Public Records Requests

There have been some pretty incredible Public Records Act (PRA) requests lately – perhaps you have seen the headlines: AG rejects Seattle man’s request for 600 million emails. That request was for all emails, excluding those that require redactions, sent to or from all state agencies over a period of years. It was followed up by a request for all state agency reports and documents. The same requestor had also requested from the University of Washington all records at the university that date back to "the formation of the Earth." Of course, he doesn't really want all those records. According to other stories about this requestor, he wants public agencies to routinely post all of their emails and other public records on their websites - unless they contain private or confidential information - in the interest of government transparency. A laudable goal, even if it is not currently realistic. But his requests also bring up the issue of huge public records requests, which are now and then made of public agencies in the state and which are not made just to make a point.

Needless to say, Bob Ferguson, the state Attorney General, promptly responded to the request for all state agency emails. He concluded that the request was invalid because it did not seek "identifiable records":

First, your email does not seek "identifiable public records" because state agency emails are not organized, identified, or searchable by classes of "records that need redacting" and "records that do not need redacting." Every email in state government would have to be copied, retained, and reviewed to determine if redaction is needed. This process would require duplication of the entire state email system and suspension of record retention schedules for years.

I assume the requestor here, having made his point, will not challenge the AG's denial in court. But these requests do raise issues regarding whether there are clear limits that can be drawn so jurisdictions know when a requestor has exceeded the bounds of “reasonableness” (a word not found in the PRA) in making requests. Our open government laws are quite broad, and the courts have certainly interpreted the statutes in an expansive way, as is legally required.

MRSC has addressed the issue of “overbroad” requests on numerous occasions. Here is a good summary of the issue, taken from one of our Ask MRSC Q & As:

 
What is the law regarding overbroad public disclosure requests?

The idea that a public records request can be denied because it is overbroad was established in case law, though it was subsequently repudiated in the Public Records Act (PRA). In Hangartner v. City of Seattle, 151 Wn.2d 439, 448 (2004), the state Supreme Court, addressing a challenge to a PRA request to inspect all of an agency's records, held as follows:

We agree with the Court of Appeals that a government agency need not comply with an overbroad request. We reach that determination because if a requesting party could meet the PDA's [Public Disclosure Act, as it was then named] requirement of identifying the desired documents by requesting all of an agency's documents, the identification requirement would be essentially meaningless. We will not interpret a statute in a manner that leads to an absurd result. State v. J.P., 149 Wn.2d 444, 450, 69 P.3d 318 (2003). The PDA was enacted to allow the public access to government documents once agencies are allowed the opportunity to determine if the requested documents are exempt from disclosure; it was not enacted to facilitate unbridled searches of an agency's property. We hold, therefore, as did the Court of Appeals in Wood, that a proper request under the PDA must identify with reasonable clarity those documents that are desired, and a party cannot satisfy this requirement by simply requesting all of an agency's documents.

In response to the Hangartner decision, the Legislature in 2005 amended RCW 42.56.080 by adding that "Agencies shall not deny a request for identifiable public records solely on the basis that the request is overbroad." The state attorney general's office, in its "Model Rules for Public Disclosure," is a bit more helpful; WAC 44-14-04002(3) states:

"Overbroad" requests. An agency cannot "deny a request for identifiable public records based solely on the basis that the request is overbroad." RCW 42.17.270/42.56.080. However, if such a request is not for identifiable records or otherwise is not proper, the request can still be denied. When confronted with a request that is unclear, an agency should seek clarification.

So, if a person asks to inspect and/or copy a huge number of records - and is not trying simply to make a point - a public agency will have to comply with the request if it is for "identifiable" records. But, there are strategies that may be employed to more efficiently deal with such a request. See, for example, Handling Vague & Complex Public Records Requests: Developing Your Plan of Attack, by Sandra Di Vittorio, MRSC Insight, 3/1/2013.

The ability of an agency to provide records in installments (RCW 42.56.080; WAC 44-14-04004(3)) can be useful in responding to large requests. As noted in the Model Rules, at WAC 44-14-04004(3):

The purpose of this provision is to allow requestors to obtain records in installments as they are assembled and to allow agencies to provide records in logical batches. The provision is also designed to allow an agency to only assemble the first installment and then see if the requestor claims or reviews it before assembling the next installments.

It will likely never be an easy process to respond to a huge public records request, at least not until there is a technically feasible method for an agency to put most or all of its records on its website, while protecting information in those records that is confidential or private - yes, the apparent goal of the requestor who made the requests that prompted this blog post. Again, it's a laudable goal, but not one that agencies can reasonably achieve at present.

Photo courtesy of Angela M. O.

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

Comments

"What a timely post. On Friday, we were hit with a similar overbroad request. All employees received an email that read, "This morning the County received a public records request for all County’s emails, word, excel and powerpoint documents with their full meta-data." It seems specific enough (i.e., specific document types), as to avoid a denial of the request on the grounds of being too vague. However, the time we will spend on fulfilling this request will be enormous and will cost our taxpayers. There needs to be some kind of legistation change to insert a reasonableness claue. So much time and resources are wasted."

County employee on Mar 9, 2015 11:41 AM

"Agencies should also implement the provision in RCW 42.56.100 that says "Agencies shall adopt and enforce reasonable rules and regulations... to prevent excessive interference with other essential functions of the agency". Kirkland's city council establishes a budget for the handling of public records requests, and tracks the performance of the public records function to insure that the budget allocation reasonable meets the demand for records. Then when a huge request comes in, the response can be spread out over time so that it does not "excessively interfere with other essential functions". Agencies can't artificially constrict the resources they apply to records production (which would be "unreasonable"), but they can manage the spikes in demand."

Toby Nixon on Mar 5, 2015 2:20 PM

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