No. An agency may not require the use of a specific form or a particular method (e.g., NextRequest, email), but it may strongly encourage the use of one. The PRA in RCW 42.56.080 provides that:

No official format is required for making a records request; however, agencies may recommend that requestors submit requests using an agency provided form or webpage.

The preferred form or method should be articulated in the agency's policy. The Attorney General’s Model Rules on Public Disclosure encourage an agency to make available a public records request form in order to protect both the agency and the requestor. 

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Under most circumstances, the answer is no. If the elected official needs the records in order to perform the duties of their office, then the official’s request for records shouldn’t be handled as a PRA request unless the agency has adopted its own policy regarding such requests. However, if the request is not pursuant to the duties of the elected official’s office, then the PRA, including the charging of any fees, will apply.

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No, to both questions. The PRA does not require an agency to copy records into the specific electronic format requested or to deliver records in the specific electronic delivery method requested. See Mechling v. Monroe (2009) and Does v. Pierce County (2019). However, according to the Attorney General’s Model Rules on Public Disclosure, “[i]n general, an agency should provide records in the format requested if it is reasonable and feasible to do so.” See WAC 44-14-05001.

Agencies should adopt their own policies for the provision of electronic records, keeping in mind that what is reasonable and technically feasible for the copying and delivery of electronic records for one agency may not be for another, especially for smaller local governments that lack the electronic resources and staffing of larger agencies.

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A records request can be considered abandoned if a reasonable time has passed since the requestor was notified that the requested records were available. The Attorney General’s Model Rules on Public Disclosure indicate 30 days is a reasonable time period to wait. See WAC 44-14-04005.

The agency should send a closing letter informing the requestor that their request was closed and the reason why, if it has not already provided the requestor with this information in previous communications.

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They can be. If an agency contracts with a private company to provide agency services, then that company’s records related to the agency’s business may be subject to the PRA. The Washington Supreme Court held in Cedar Grove v. City of Marysville (2015) that city-related records of a private consulting firm that provided professional services to the city were subject to the PRA since the firm was acting as the functional equivalent of a city employee. The court did qualify their holding as follows:

We are not articulating a new standard that makes every record a government contractor creates during its engagement with an agency a public record subject to the PRA. Nor do we create a new duty on the part of a public agency to search the records of all its third-party contractors each time it receives a PRA request.

So, whether the records of a private company that contracts with an agency are public records must be evaluated on a case-by-case basis by applying the “functional equivalent” balancing test (aka, the Telford test) to determine whether the company is acting as the functional equivalent of an agency employee. That test is:

1. the extent the entity performed a government function;
2. the extent public funds paid for the activity;
3. the extent of government involvement or regulation; and
4. whether the government created the entity.

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An agency must identify in its response to the requestor that it has withheld or redacted a document. If an agency does not, it would be silently withholding a record, which is a PRA violation. In identifying the document withheld or redacted, the agency must cite the specific statute that exempts the record and provide a brief explanation on how that statute applies to the record at issue (RCW 42.56.210). In most cases, agencies will find it easiest to provide this information in an exemption log. In some cases, though, for example where only one document is redacted, it may make more sense to identify the statute and provide the brief explanation on the redacted document itself.   

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An agency can waive copying fees but must do so pursuant to an adopted policy regarding waiver of copying fees. See RCW 42.56.120(4).

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No, agencies may not charge for time spent redacting information in a record. Redacting information is considered part of making a record available for copying or inspection and an agency cannot charge for making a record available for inspection and copying. See RCW 42.56.120(1). The one exception to this rule is redaction of body camera video recordings, where the cost to redact can be charged in some circumstances. See RCW 42.56.240(14).

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Text messages on a public employee’s or official’s personal phone are public records if the message is within the public employee’s or official’s scope of employment. An employee's/official’s communication is "within the scope of employment" when their job requires it, their employer directs it, or it furthers their employer's (i.e. the government’s) interests. See Nissen v. Pierce County (2015). If the text message does not fall within the scope of employment test, then it is not a public record.

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Under most circumstances, call logs from a public employee’s personal phone are not public records to which the PRA applies. See Nissen v. Pierce County (2015). To be a public record, the call log must be "prepared, owned, used, or retained by any state or local agency" and relate to the conduct of government; in most circumstances, a personal call log will not meet this threshold. However, if an agency reviews an employee’s personal call log for a disciplinary matter or as part of their cell phone reimbursement policy, then, arguably, the log has been “used” and that use was related to the conduct of government. In those limited circumstances, the call log could be a public record.  

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Yes. A public employee’s work-related internet browsing history on an agency-owned device constitutes a public record. See Belenski v. Jefferson County (2016). Note, however, that an employee’s internet browsing history is considered a non-archival, non-essential record and doesn’t have a required retention period (i.e., it can be destroyed once no longer needed for agency business). See Local Government Common Records Retention Schedule (CORE) DAN GS2016-006. 

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An agency-related Facebook post by a public employee or official on their personal Facebook account can be a public record if the post was made within the employee’s or official’s scope of agency employment. Since an agency acts exclusively through their employees or officials, the location of a record (whether on a personal account or public account) does not matter; in other words, public records can reside on private accounts or devices. See Nissen v. Pierce Co. (2015). Rather, the critical question with regard to whether an agency-related post on a personal Facebook account is a public record is whether the post was made in the employee’s official public capacity or scope of employment. For a post to be "within the scope of employment," their job must require it, their employer must direct it, or it must further their employer's (i.e. the government’s) interests. A post that only minimally or incidentally furthers an interest of the government, without more, is not a public record. See West v. City of Puyallup (2018).

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The Attorney General Model Rules state that:

unless otherwise provided by law, public records must remain in the legal custody of the office in which they were originally filed . . . [t]hey shall not be placed in the legal or physical custody of any other person or agency, public or private, or released to individuals, except [as allowed under the law or these regulations.] See WAC 434-615-020.

Based on this model rule and good governance, the best practice both from a records management and production perspective is for agency records to be maintained on agency-owned devices or accounts rather than personal devices or accounts or in a home office. In the circumstance where records are located on personal devices or accounts or in a home office, agencies should have appropriate policies in place for managing retention and production of those records.

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Text messages do not have a specific retention period—the period of retention is determined by the content of the text message itself.  If a text message is used for a “transitory” purpose (such as “I will be 10 minutes late to our meeting”), then the text has no retention value and need not be saved. However, other text messages are more substantive, containing content that does trigger a retention requirement. (The Secretary of State’s retention schedules sets the retention period for various types of records.) Local agencies should develop policies on text messaging; please visit MRSC’s Text Messaging Policies webpage for examples of various policy approaches.

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Per RCW 42.56.070(8), the PRA prohibits the disclosure of “lists of individuals” for a commercial purpose. The first thing to note is that the prohibition only applies to lists of individuals and does not apply to lists of businesses or information about individuals where requestors could create their own list. However, if the information is in an electronic record, such as an Excel spreadsheet, that can be sorted to display lists of individuals, the prohibition applies. See AGO 2019 No. 3.

The second thing to note is that a commercial purpose is defined as a business activity by any form of business enterprise intended to generate revenue or financial benefit. See SEIU Healthcare v. DSHS v. Freedom Foundation (2019). If the requestor does not intend to use the list for commercial purposes, the prohibition doesn’t apply.

The third thing to note is that it is not sufficient for the requestor to merely sign a declaration promising not to use the list for a commercial purpose. Rather, if the agency has a reasonable belief the individual will use the list for commercial purposes, the agency has an affirmative obligation to investigate how the requestor intends to use the list.

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Sometimes. There is an exemption for the personal information of a child enrolled in a parks and recreation program, but there is no similar exemption for adults. See RCW 42.56.230(2)(a). The Public Records Act also prohibits agencies from giving or providing lists of individuals if the list was requested for a commercial purpose. See RCW 42.56.070(8) and our analysis on the commercial purpose prohibition in the FAQ: How should an agency proceed if it receives a request for lists of individuals?. 

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The following utility customer information is exempt, per RCW 42.56.330(2):

• Addresses
• Telephone numbers
• Email addresses
• Customer-specific utility usage and billing information in increments less than a billing cycle. 

A utility customer’s name and account number are not exempt.

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In most circumstances, yes. RCW 42.56.230(3) exempts personal information of employees, appointees, and elected officials to the extent that disclosure would violate their right to privacy. RCW 42.56.250(4) exempts personal information of employees and volunteers held in personnel records, public employment related records, volunteer rosters and employee/volunteer mailing lists. Thus, whether planning commissioners are considered appointees or volunteers, their home address is exempt. If a planning commission member or a subcommittee member uses their personal email or their personal phone to text for agency business, then their personal email and personal phone number would not be exempt as they could no longer meet the right to privacy test. However, if the individuals never used their personal email or their personal phone for agency business, then this personal information would remain exempt. 

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No. There is no exemption that covers dog license information.

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Most standard performance reviews are exempt under RCW 42.56.230(3); Dawson v. Daly (1993). However, the following types of performance reviews are not exempt and must be provided upon request:

• Performance reviews showing substantiated misconduct. See Dawson v. Daly (1993) and the below FAQ: Are disciplinary records exempt?.
• Performance reviews of the agency’s chief executive officer, such as a city manager. Under Spokane Research & Defense Fund v. City of Spokane (2004), the court held that a city manager is the leader and public figure of the city and the public has a legitimate interest in the disclosure of the city manager’s performance review. 

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Disciplinary records that reflect substantiated allegations of employee misconduct are not exempt and must be disclosed upon request. (See Cowles Publishing Co. v State Patrol (1988) - holding that officer identities related to confirmed internal investigations are not exempt; Morgan v. Federal Way (2009) - holding that release of a disciplinary investigation report confirming many allegations of a judge’s inappropriate behavior did not invade the judge’s privacy, because many of the allegations were likely true and the substantial interest to the public of the elected judge’s job performance.)

Disciplinary record that reflect unsubstantiated allegations of employee misconduct also must be produced, although the employee’s identity may be exempt under some narrow circumstances under RCW 42.56.230(3). Historically, the identity of an individual accused of sexual misconduct where the allegation was unsubstantiated was exempt. (See Bellevue John Does 1-11 v. Bellevue School District (2005) - holding that identities of teachers subject to unsubstantiated allegations of sexual misconduct are not a matter of public concern so should be redacted, although the remainder of the investigative report is subject to disclosure; Bainbridge Island Police Guild v. City of Puyallup (2011) - holding that an internal investigation of a police officer where allegations were unsubstantiated are subject to disclosure but the officer’s name should be redacted.) However, note that the legislature adopted a new exemption in the 2018-19 legislative session to protect investigations of harassment in employment. See RCW 42.56.250(6). That statute does not specifically exempt the name of the accused, it only protects the name of the complainant, accuser, and witness (whether the allegation is substantiated or unsubstantiated). Thus, whether the name of a person accused of sexual harassment in an unsubstantiated allegation is still exempt under Bellevue John Does 1-11 v. Bellevue School District is a question your agency attorney will need to weigh in on. 

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Records of a previous employee should be treated the same as records of a current employee. If a record would be exempt from disclosure if the employee were still employed at the agency, then the record remains exempt after the end of their employment. See Belenski v. Jefferson County (2015) and MRSC's Blog Post PRA Employment Records Exemption Applies to Former Employee.

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An employee’s personnel file is not categorically exempt, but certain information is exempt, including:

• Applications for public employment and materials submitted with respect to an applicant, including resumes, references, letters of recommendation, and pre-employment polygraph results (RCW 42.56.250(2); Sheats v. East Wenatchee (2018))
• Home addresses, home and cell phone; personal e-mail addresses; driver’s license numbers and social security numbers (RCW 42.56.250(4))
• Routine performance evaluations which do not discuss specific instances of misconduct (Dawson v. Daly (1993))
• Medical information (Ch. 70.02 RCW applies to medical information from health care providers)
• Industrial insurance (workers’ compensation) claim files and records (RCW 51.28.070)

Likewise, an employee’s payroll record is not categorically exempt. The following payroll information must be produced:

• Employee name
• Gross salary
• Hours worked
• Overtime pay
• Vacation and sick leave pay (also showing how much vacation/sick leave have been taken and how much remains)
• Publicly-funded fringe benefits (i.e., health benefits)

The following payroll information may be redacted pursuant to RCW 42.56.230(3) because the employee has a privacy interest in the information:

• Voluntary deductions
• Pension deductions
• Worker's compensation payments
• Charitable deductions

Similarly, the following information is exempt and may be redacted under RCW 42.56.230(5) because of the employee’s right to privacy:

• Credit card numbers and debit card numbers; card expiration dates
• Bank or other financial account numbers

Our take on tax withholding data is as follows:

• Federal tax withholding data is likely exempt under RCW 42.56.230(4)(b) as disclosure would likely be considered highly offensive and not of reasonable concern to the public and therefore a violation of the employee’s right to privacy.
• Other tax withholding information such as social security, Medicare, and L&I is not exempt since these are set percentages set by the federal or state government, and do not reveal anything highly offensive about the employee.

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No. While RCW 42.56.250(2) exempts applications for public employment, the exemption specifically excludes applications for vacancies in elective office.

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It is unclear whether interview notes and reference check notes are exempt. In both cases, the name of the applicant is exempt under RCW 42.56.250(2). But, whether the notes themselves are exempt is unclear. The most obvious potential exemption is RCW 42.56.250(2), which exempts from disclosure any employment application materials submitted with respect to an applicant. The question is whether interview notes and reference check notes are  “submitted” with respect to an applicant. 

Some agencies apply this exemption to protect interview notes and reference check notes, but others do not. Sheats v. East Wenatchee (2018) is the most current case applying the exemption; the Sheats court held that polygraph tests that are required as part of the employment hiring process do fall under the exemption. (Although, in Sheats, the court affirmed the trial court’s denial of an injunction that would have prohibited release of the police officer’s polygraph test because public policy favored disclosure.)  The most risk-averse approach is to not apply the exemption to interview notes and reference check notes, given the PRA liability for wrongfully withholding a record; however, the answer is not clear so your agency attorney should be consulted on applicability of the exemption.  

Sometimes agencies will ask whether the deliberative process exemption in RCW 42.56.280 could exempt interview notes and reference check notes. But, in analyzing the deliberative process exemption, the Washington State Supreme Court stated that “hiring and promotion decisions are generally not part of the policy-making process which the exemption applies.” See Brouillet v. Cowles Publishing Co. (1990). If the notes were handled as personal notes, it is possible they are not a public records subject to the PRA. See the FAQ: Are informal notes prepared and kept by an elected official or staff member exempt from disclosure?

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If the agency requires that a background investigation be conducted in order to hire an individual, then the material is exempt under RCW 42.56.250(2). See Sheats v. East Wenatchee (2018), which held that a pre-employment polygraph required by the city was exempt.

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Yes. RCW 42.56.250(2) exempts from public inspection and copying all applications for public employment, including the names of applicants, resumes, and other related materials. This would include the names of finalists for a city manager position.

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Sometimes. Draft documents are not categorically exempt from disclosure, but may fall under the deliberative process exemption of RCW 42.56.280. Under this exemption, preliminary drafts in which opinions are expressed or policies formulated or recommended are exempt from disclosure, except when the draft is publicly cited by an agency in connection with any agency action. In order to rely on this exemption, an agency must show:

• that the records contain predecisional opinions or recommendations 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.

See PAWS v. Univ. of Washington (1994) and West v. Port of Olympia (2014).

This exemption is focused on the deliberative and policy-making process and the exemption disappears once the agency takes final action on the issue. If all of these elements are met regarding the draft documents at issue, the documents are exempt under RCW 42.56.280.

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Possibly. A Washington Appellate case from 1989, Yacobellis v. Bellingham, held that the notes are not public records if they: 

1. were created solely for the government official’s or employee’s convenience or to refresh the official’s or employee’s memory;
2. are maintained in a way indicating a private purpose;
3. are not circulated or intended for distribution within agency channels; are not under agency control; and
4. can be discarded at the writer's sole discretion. 

If all of these elements are met regarding the personal notes at issue, the notes are not public records under the PRA. For additional insight into this question, see our blog post Are Personal Notes Public Records Under the Public Records Act.

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Juvenile offenders: Disclosure of juvenile offender records are covered by RCW 13.50.050 and not the Public Records Act. For more information about disclosure of juvenile records, see MRSC’s webpage on Disclosure of Juvenile Law Enforcement Records.

Juvenile witnesses and victims: Information about juvenile witnesses and victims can appear in law enforcement records, but those records are not covered by RCW 13.50.100. In the case of juvenile witnesses and victims whose identity appears in investigative records, disclosure is as follows:

• if the investigation is still open, the entire investigative record is categorically exempt. See RCW 42.56.240(1); Sargent v. Seattle Police Dep't (2013).
• If the investigation has been referred to the prosecutor or is closed, then the following exemptions could protect the identity of the juvenile witness or victim:
  • RCW 42.56.240(2) protects a juvenile or witness identity if: (1) the victim or witness indicates a desire for nondisclosure at the time of the complaint, or (2) disclosure would endanger the person’s life, physical safety, or property.
  • RCW 7.69A.030 may provide a basis for redacting the identity of child victims or witnesses, including their names, addresses, and photographs, unless the victim or the victim’s parents/guardians have authorized disclosure.
  • RCW 42.56.240(5) protects the identity and contact information of a proven or alleged child victim of sexual assault and any details that describe the victim.

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Sometimes. RCW 42.56.240(2) exempts the names and identifying information of those who make code enforcement complaints if:

• disclosure of the complainant’s identity would endanger any person’s life, physical safety, or property; or
• the complainant indicates a desire for nondisclosure at the time the complaint is filed.

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There are two types of records related to bids and RFPs: (1) the submittal by the bidding contractor or consultant and (2) the agency consideration of the submittal.

There is no exemption that protects the bids and RFPs submitted by the bidding contractor and consultant. Sometimes, bidders will claim their bids are exempt as proprietary information under RCW 42.56.270(1) or (11). In this circumstance, one approach is for the agency to provide third party notice to the bidder under RCW 42.56.540 and allow the bidder to seek a court order prohibiting disclosure. Note that bidders have special access to bids submitted for public works projects that are the subject of competitive bids. Within two business days of bid opening, the municipality must provide copies of the bids received to a requesting bidder (RCW 39.04.105).

Likewise, there is no clear exemption that covers records related to an agency’s consideration of bids or RFPs (e.g., scoring notes). The one potential exemption is the deliberative process exemption in RCW 42.56.280, which only applies before selection of a bidder. It is possible the deliberative process exemption could apply during agency consideration of the bid/RFP; make sure to carefully review and apply all the exemption factors before relying on RCW 42.56.280 to withhold records relating to the agency’s consideration of the bid/RFP. (See our analysis on the deliberative process exemption in the FAQ: Are draft documents exempt from disclosure?)

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MRSC’s opinion is that building plans submitted to a local government are not exempt. However, two exemptions/prohibitions to be considered when handling a request for building plans are copyright protections under federal law and RCW 42.56.270, which exempts:

[v]aluable formulae, designs, drawings, computer source code or object code, and research data obtained by any agency within five years of the request for disclosure when disclosure would produce private gain and public loss.

With regard to copyright protections, rather than assert an owner’s potential copyright-protected records, third party notice under RCW 42.56.540 could be a better approach. With regard to RCW 42.56.270, it is not clear what the “public loss” would be if an agency disclosed building plans; therefore, third party notice is a better approach in this type of situation.

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No. Once the security camera recordings are created, they are public records and no specific exemption applies to the recordings.

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Traffic accident reports are not categorically exempt, although some information in the report may be exempt. See Gullien v. Pierce County (2001) and Gendler v. Batiste (2012).

For example, traffic accident reports may include protected health care information under chapter 70.02 (if a health care provider provided the information), driver’s license numbers, juvenile offender information (protected by RCW 13.50.100), or generally be protected by the child’s bill of rights in chapter 7.69A.  

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